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Attorney: Commissioners shouldn’t speak during public comments

Photo courtesy of CTV Community Television Marine City Commissioner Michael Hilferink leaves his seat at the board table and heads to the podium to speak during public comments at a Sept. 21, 2023 meeting while Mayor Jennifer Vandenbossche declares him out of order.

Commissioner Hilferink insists there’s no law against it

By Barb Pert Templeton

A recent meeting of the Marine City Commission had City Attorney Robert Davis giving a brief presentation on the Open Meetings Act (OMA) and how it relates to public comment.

Davis’ decision to address the commission was prompted by an incident at a Sept. 7 meeting where Commissioner Micheal Hilferink was arrested and charged with disturbing the peace. 

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The incident occurred when Hilferink left his seat and went to the podium to speak during public comments. He insisted he wanted to be heard as a regular citizen and a ten-minute argument ensued as officials said he was out of order. When he refused to return to his seat, they asked that he be removed from the meeting. Hilferink, who was then arrested for disturbing the peace, insisted his first amendment rights had been violated. 

At the Sept. 21 commission meeting Davis began by stating that under the OMA the commission is defined as the “public body” and they are supposed to deliberate and make decisions in open meetings with the exception of defined purposes that are handled in closed sessions.

“The public must be allowed to speak to the public body (the commission in this case) under procedures set by the public body,” Davis said.

He said the process is set forth in the commission’s agenda which notes when public speaking will be, at the beginning or end of the meeting and the allotted time allowed. 

At the same time the agenda has a commissioner privilege section where the public body can be heard. They can also comment throughout the meeting 

“It is my opinion that public comment time does not apply to the commissioners,” Davis said. 

He went on to state that he feels public comment is reserved for the general public because even if a commissioner has left the table to speak at the podium, the audience and officials will continue to see them as a city official.  He said that becomes a problem because the commissioner could start talking about things that aren’t even on the agenda. 

Photo courtesy of CTV Community Television
Marine City Attorney Robert Davis explains the Open Meetings Act (OMA) and how it relates to public comment. 

“We have to safe guard against having a commissioner over there talking about things not on the agenda,” Davis said. “If we started having public comment and every commissioner stood up and went to the podium, they could be discussing things not on the agenda and that’s a violation of the open meetings act.”

He said the commission already approved both a time period for public comment and commissioner privilege on the agenda.

“It’s my opinion that you are not depriving anybody of their right to speak by controlling when they speak,” Davis said. “It’s my opinion commissioners that your right to speak is during commissioner privilege and throughout the meeting as allowed, you should not exercise your right to speak, transferring yourself into a citizen, during the public comment period.” 

At the end of Davis’ presentation, Hilferink spoke out posing a question, one already reflected in a sign he placed on the table in front of his seat during the meeting. 

Photo courtesy of CTV Community Television
Marine City Commissioner Michael Hilferink disagrees with the city attorney’s opinion on whether he can leave his seat at the table and speak during public comments. He posted a sign at his seat at the Sept. 21 commission meeting, “Where’s the law Bob?” and during his commissioner privilege portion of the meeting he called on the commission to hire a new attorney.

 “I’m sorry Bob, I didn’t hear the beginning, where’s the law?” Hilferink asked.

Davis replied that the law states the person must be permitted to address a public body under rules set by that public body and in this case the Marine City Commission has specific times for both the public and the commissioners to speak as noted on their agenda. 

“So, it’s your opinion a city’s rules can trump state law,” Hilferink said.

“No, that’s not my opinion Mike,” Davis replied 

As Hilferink continued to talk and members of the audience began speaking Mayor Jennifer Vandenbossche gaveled for quiet and moved the meeting onto the public comments portion of the agenda. 

Hilferink then left the board table and went to the podium for public comment and the commission quickly made a motion and declared him out of order. He returned to the board table stating that officials in other municipalities can speak during public comment why is desire to do so any different?

Section 15.263 of Michigan’s Open Meetings Act, Section 3 states:

The right of a person to attend a meeting of a public body includes the right to tape-record, to videotape, to broadcast live on radio, and to telecast live on television the proceedings of a public body at a public meeting. The exercise of this right does not depend on the prior approval of the public body. However, a public body (in this case the Marine City Commission) may establish reasonable rules and regulations in order to minimize the possibility of disrupting the meeting.

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