Compensation commission 're-enacts' April meeting to comply with OMA, but will it work?
Compensation commission 're-enacts' April meeting to comply with OMA, but will it work?
The compensation commission voted 5-0 to re-approve two measures that would give raises to countywide elected offices and road commissioners.
OTTAWA COUNTY — The ongoing saga of Ottawa County’s compensation commission continued Thursday with a “re-enactment” of an April meeting that was not properly noticed in compliance with Michigan’s Open Meetings Act.
The compensation commission voted 5-0 to re-approve two measures that would give raises to countywide elected offices and road commissioners.
It was the latest twist in a convoluted process that’s been peppered with numerous procedural flaws and politically charged accusations.
The compensation commission was formed in late 2005 and makes determinations for the compensation of county elected officials in even-numbered years.
State statute requires that compensation commissions:
To have seven members.
That members shall be appointed before Oct. 1 of the year of appointment.
Must meet in even-numbered years for not more than 15 "session" days
That a majority of the members serving on the commission must “be in concurrence” with any determinations made.
Must comply with Michigan’s Open Meetings Act.
The problems began May 14, when county commission Chair Joe Moss said he removed the compensation commission’s determinations this year, calling some of the work “invalid,” and said the commission’s chair, Larry Jackson, of colluding with local media outlets to interfere with a May 7 special recall election that saw Democrat Chris Kleinjans defeat Ottawa Impact Republican incumbent Lucy Ebel.
"You've been played," Moss said at the meeting. He called the raise a "phantom increase."
Moss leads Ottawa Impact, a far-right fundamentalist group formed in 2021 over frustrations with county and state COVID-19 mitigation measures that currently has a six-seat controlling majority on the 11-member board. After coming into power in 2023, the group has made a series of controversial decisions that have led to five lawsuits within 14 months and a brief investigation from the Michigan Attorney General's Office.
Moss accused Jackson, current chair of the Ottawa County Democrats, of sabotaging the recent pay rate evaluation process for countywide electeds — but numerous discrepancies could invalidate the process entirely, including a meeting that occurred outside the commission’s window to make operations and a meeting that wasn’t properly publicly noticed per state law.
Jackson responded to the allegations on Wednesday, saying politics had nothing to do with it and that he and his fellow commissioners acted in good faith.
“Regarding Chair Moss’ unfounded and damaging allegations of misconduct, including accusations of colluding and election interference, I categorically deny these claims,” he said in the statement.
At issue was the commission’s determination to raise county commissioners’ pay by 60% and a $1,000-per-month healthcare stipend — both starting in 2025. Jackson voted against the measure, but three other commissioners voted in favor of it.
According to the county’s corporation counsel, the 3-1 vote from April 11 was not a valid determination because the statute governing the commission’s work calls for a majority of members serving on the commission to “be in concurrence” with any determinations made. Because there were six people serving on the commission at the time, the threshold for approval would need four “yes” votes.
Two other determinations from the April 11 meeting — raises for countywide elected officials and raises for county road commissioners — also are in doubt, because the meeting wasn’t properly noticed.
At the May 23 “re-enactment” meeting, Interim Administrator Jon Anderson explained to the compensation commissioners that the meeting was intended to memorialize the valid votes from the April 11 meeting — the countywide officer and road commissioner raises.
“Everything was done fine, it just wasn’t properly noticed,” Anderson said of the April 11 meeting. “That’s all this is. We need to get better about who notices these things. It wasn’t properly noticed; that goes through the clerk’s office, apparently. Some were expected to be noticed by the administration. It’s one of those things.”
Commissioner Mark Brouwer said when the process began in March, it was supposed to be led by former administrator Johns Gibbs, who was fired by the board of commissioners Feb. 29.
“When they kicked him out, it all went downhill,” Brouwer said.
The validity of whether or not the redo was legal, however, is in doubt. In emails Jackson sent to Anderson and the commission members, he said Thursday’s meeting was outside of the commission’s 45-day window to operate.
“The meeting on April 11 wasn't posted, so in turn wasn't legal,” Jackson said in the email. “I'm not taking any action until I get feedback from someone outside of the Kallman (Legal) Group. I want to get this done, but I want to do it by the book this time and I need to make sure we are taking the correct action and that isn’t fixing a document that I signed that could be not legal.”
Some commissioners seemed conflicted about the ability to move forward with the re-enactment.
“I don’t feel comfortable making any rulings or any decisions without having Kallman here,” said Angela Loreth. “I’m not sure what we’re able to do. I don’t feel comfortable voting on anything without speaking to counsel.”
Loreth pointed out Jackson’s absence and the fact that two commissioners not present April 11 were present Thursday, meaning a true re-enactment wasn’t possible.
“I just don’t see how we can move forward without Larry present,” she said.
That prompted a short recess while the county’s legal counsel was sought out to address the commissioners’ concerns.
Anderson was not present for a majority of the meeting, as ongoing union negotiations were being conducted in the room next to where the compensation meeting was taking place.
Lanae Monera, of KLG, briefly attended the meeting and said the commission was able to re-enact the two items from the April 11 meeting and that it didn’t matter if the names and vote totals differed from the original meeting.
“It’s a re-enactment of the April 11 meeting and it doesn’t matter if the same members aren’t here and different members are here,” she said.
That prompted Loreth to ask if the entire process could start over.
“Can we start the clock over?”
“No. You are not able to do that,” Monera said.
Brouwer then asked that if the totals and members were irrelevant, why couldn’t they also consider the 60% raises for county commissioners?
“You didn’t have a concurrence so it wasn’t a valid determination,” Monera said.
“We can’t add it to the agenda?” asked Brouwer.
“No.”
Despite not being present, Jackson was discussed at length with Loreth echoing Moss’ comments that the failure of the process fell to Jackson.
“The way things transpired, I don’t think he’s willing to re-enact this,” Brouwer said.
“Well this is on him and it’s cowardice to leave this decision up to us,” Loreth responded.
“I would prefer Larry to be here. Obviously, we can’t force him,” said Lynn Jansen, who called the meeting and oversaw Thursday’s proceedings.
“Well he should come back and explain this to us,” Commissioner Craig Dunlap said.
Jansen said it’s unfortunate that the majority of the commission’s work will not be used.
“I think we put a lot of work into this,” he said. “It’s a shame that much of what this commission determined is going to be thrown out.”
“What happens to these determinations if we don’t re-enact them?” Dunlap asked.
“That’s a legal gray area,” Brouwer said.
In fact, it’s not clear if Thursday’s meeting was in compliance with the Open Meetings Act. According to the state statute, “in any case where an action has been initiated to invalidate a decision of a public body, the public body may reenact the disputed decision in conformity with the Act.”
In this case, no action has been initiated and the commission is not a perpetual entity — it only exists for 45 calendar days every two years.
Doug Van Essen, former corporation counsel for the county, said Thursday’s meeting occurred outside the 45-day window and likely would be invalidated by a court if the “re-enactment” votes are legally challenged.
“This is clear. It was stupid to call the meeting,” he said. “What was done was done. And you can't fix it.”
Al Vanderberg, former longtime county administrator, said the county is flirting with too many legal risks here because the process has been botched in multiple ways. He said even flawed determinations could go into effect if the board of commissioners doesn’t reject the compensation commission determinations before the end of the year.
“If they don't vote at all, it automatically goes into effect on Jan. 1,” he said of the compensation commission’s determinations. “It was voted 3-1,” he said of the 60% raise, “but somebody has to contest it. If nobody contests it, then bad things can happen.”
Vanderberg said the compensation committee’s findings are “determinations,” not “recommendations.”
“It's a determination to the board of commissioners. It's their choice whether to accept or reject the determination in whole or in part,” he said. “If they fail to act, then the determination automatically goes into effect on the following Jan. 1.”
Vanderberg said there’s no reason for the board to not vote the invalid measures down to ensure that future problems don’t crop up.
“I think the danger is, that it could all go into effect if they don't vote on it,” Vanderberg said. “Somebody needs to make an issue out of it. And the right thing to do, really, is kill it. Make sure the board rejects that one recommendation, and they have all the way up until Dec. 31.”
He said he didn’t view the May 23 meeting as legal under the state law that governs the commission.
Jackson said he didn’t attend the meeting because he didn’t feel that the county’s attorneys gave adequate guidance to the commissioners in a process that clearly has many flaws.
“The reason I wasn't going to be in the room and I was never going to be in the room was because (Kallman) didn't give them any legal guidance,” he said. “I don't want to place any blame on anybody. I just want to say that I wasn't in the room because this meeting wasn't legally viable in the first place.”
What happens now?
The board of commissioners has options it can exercise when it receives the revised determinations “re-enacted” by the commission Thursday.
State law defines actions a board of commissioners can take in response to a compensation commission’s determinations:
Reject the determinations of the commission in whole or in part by a two-thirds majority.
Accept the determinations.
Do nothing, in which case, the determinations by the compensation commission will go into effect in 2025.
Rick Martinez, who vice-chaired the compensation commission in 2022, said he had four members on his commission that year. He said it was his understanding that the board of commissioners had choices on how to react to votes.
“My understanding was because we only had four members, regardless of what our vote was, whatever our decision was, that was it, as long as we had a quorum,” he said. “We never tested that, obviously,” referring to the fact that despite having only four commissioners that year, the votes on determinations were unanimous.
“And it's a recommendation,” he said, to forward to the board. “So, in my understanding, it's either an up or down vote — yes or no, or they can choose not to vote on it, and then it goes into effect by default.
Jackson agreed.
“They're supposed to be making their decision on the recommendation that we make,” he said. “Nowhere in MCL says they make their recommendation on what happened in the meeting.”
The board action assumes a citizen won’t challenge the compensation commission’s actions from Thursday as a violation of the OMA. Even if accepted and approved by the board of commissioners — presumably at its next meeting May 28 — any county resident has 60 days to challenge decisions made at public meeting either through a criminal investigation or via a civil lawsuit.
Vanderberg said the latter is likely the best bet for the county.
“Somebody needs to challenge it, because it's outside of the law,” he said.
— Contact Sarah Leach at SentinelLeach@gmail.com. Follow her on Twitter @SentinelLeach. Subscribe to her content at sentinelleach.substack.com.
Whew! I'm glad Sarah can follow all these twists and turns in county governance.
The utter incompetence continues. I wonder, given the multiple comments disparaging Mr. Jackson for not attending the May 23 meeting, why were the members that missed the April 11 meeting not also berated? Seems like if everyone had showed up, they could have passed everything, and when this failure to notice issue arose, then could have VALIDLY reenacted their votes. Allowing people who were not in the room to backtrack a vote seems very suspect.