                          STATE OF MICHIGAN

                           COURT OF APPEALS



MARGARET MULLENDORE,                                               UNPUBLISHED
                                                                   December 7, 2017
               Plaintiff-Appellant,

v                                                                  No. 335510
                                                                   Ionia Circuit Court
CITY OF BELDING, DENNIS COOPER,                                    LC No. 15-031417-CZ
THOMAS JONES, MIKE SCHEID, RONALD
GUNDERSON and JEROME LALLO, also known
as JERRY LALLO,

               Defendant-Appellees.


Before: HOEKSTRA, P.J., and STEPHENS and SHAPIRO, JJ.

PER CURIAM.

        Plaintiff appeals as of right an order entered on October 14, 2016 granting summary
disposition in favor of defendants on plaintiff’s claims regarding violations of the Open Meetings
Act (OMA), MCL 15.261 et seq. We affirm.

                                      I. BACKGROUND

        This case focuses on the termination of plaintiff Margaret Mullendore from her position
as City Manager for the city of Belding on January 2015 and the conduct of three council
members, defendants Thomas Jones, Dennis Cooper and Mike Scheid in regards to that
termination. Plaintiff was initially hired on April 18, 2013 and signed a new employment
contract on November 13, 2013. In October 2014, after a performance review, Council member
Joe Feuerstein moved to extend plaintiff’s contract for two years. Defendant Jones moved
instead to table discussion regarding her contract until January 2015. One month later on
Election Day November 4, 2014, the City Council voted to extend her contract for a one year
period, to expire on April 8, 2016 and defendant Cooper was elected to replace Fuerstein on the
Council. He began his term at the following meeting on November 18, 2014.On December 15,
2014, he sent out an email to Council member defendants Scheid and Jones and to several local
citizens in which among other things he indicated his desire to terminate plaintiff as City
Manager. It is uncontested that defendant Cooper planned to move for that termination at the
January 20, 2015 meeting.

      In the interim, plaintiff notified the City Council on January 6, 2015 that she would be off
on medical leave from January 15th through January 27th and would be unable to attend the
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January 20, 2015 City Council meeting. On the morning of January 20, 2015, Cooper met with
defendant Jones at the Belding Parts Plus store where Jones and Scheid were employed. There is
record evidence that Cooper spoke separately to each man about his intent to make a motion to
terminate plaintiff’s employment during the portion of the meeting reserved for council member
comments.

        During the evening of the January 20, 2015 council meeting, as expected plaintiff was not
present. Defendant Cooper made a motion during the portion of the meeting reserved for council
member comments, to terminate plaintiff’s employment making a few brief comments that she
had caused strife in the community. Defendants Jones, Cooper, and Scheid voted to terminate
plaintiff’s contract while defendants Mayor Ron Gunderson and council member Jerry Lallo
voted against the termination.

       Plaintiff brought a complaint in the trial court against defendants alleging violations of
the Open Meetings Act. Specifically, plaintiff asserted a violation of section 3 of the Act, MCL
15.263, based on an alleged meeting between council members, Cooper, Scheid, and Jones,
along with community members Dan Blunt and Craig Crebessa, at the Parts Plus store on the
morning of January, 20, 2015. Additionally, she also asserted a violation of section 5 of the Act,
MCL 15.265, because the Parts Plus store meeting took place without public notice.

        Defendants answered, denying liability and moving for summary disposition under MCR
2.116(C)(8)1 and (C)(10). As to MCR 2.116(C)(10), they denied violating either Sections 3 and 5
of the Open Meetings Act because the facts pled at best asserted an informal poll by one member
of a public body to determine how another member may intend to vote on a specific issue which
was not a violation of law. Additionally they argued plaintiff had no evidence to support her
claim. The trial court granted defendants’ motion for summary disposition after a hearing,
concluding that “this case falls on the side of speculative conjecture rather than reasonable
inference.”

        On appeal, plaintiff argues that the trial court erred when it granted defendants’ motion
for summary disposition because there was sufficient circumstantial evidence for a reasonable
jury to infer that three members of the Belding City Council met together at the same time or in a
sub-quorum “round the table” manner and deliberated plaintiff’s termination in violation of the
OMA. We disagree.

                                 II. STANDARD OF REVIEW

       This Court reviews a trial court’s order on a motion for summary disposition de novo.”
Bennett v Detroit Police Chief, 274 Mich App 307, 316; 732 NW2d 164 (2006). The trial court
granted defendants’ motion for summary disposition pursuant to MCR 2.116 (C)(10). When
reviewing a motion for summary disposition under MCR 2.116 (C)(10), a court must consider
“the pleadings, admissions, and other evidence submitted by the parties in the light most


1
 Plaintiff does not challenge on appeal the trial court’s grant of summary disposition in favor of
Defendants on Count III of her complaint pursuant to MCR 2.116(C)(8).


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favorable to the nonmoving party.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d
868 (2008). “Where the proffered evidence fails to establish a genuine issue regarding any
material fact, the moving party is entitled to judgment as a matter of law.” Bennett, 274 Mich
App at 317.

                                  III. OPEN MEETINGS ACT

        Plaintiff alleges that defendants violated Open Meetings Act, MCL 15.263 section 3 and
MCL 15.265 section 5. The OMA’s purpose is to insure an open and accountable government.
Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 192 Mich App 574, 580, 481 NW2d
778, 782(1992), rev’d in part on other grounds, 444 Mich 211 (1993). In general, it requires that
all meetings of a “public body” at which a quorum is present to deliberate and render decisions
be open to the public. MCL 15.263(1),(2). The OMA defines a “meeting” as any “convening of a
public body at which a quorum is present for the purposes of deliberating toward or rendering a
decision on a public policy, or any meeting of the board of a nonprofit corporation formed by a
city under section 4o of the home rule city act.” MCL 15.262(b). Thus to constitute a meeting the
following elements are needed: 1) a quorum, 2) deliberation or rendering of a decision, and 3) on
a matter of public policy being at issue. Ryant v Cleveland Twp, 239 Mich App 430, 434; 608
NW2d 101 (2000). The word “decision” is defined as “a determination, action, vote, or
disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or
measure on which a vote by members of a public body is required and by which a public body
effectuates or formulates public policy.” MCL 15.262(d). The word “deliberation” is defined as
“the act of carefully considering issues and options before making a decision or taking some
action; esp., the process by which a jury reaches a verdict; as by analyzing, discussing, and
weighing the evidence.” Ryant, 239 Mich App at 434.

        In regards to the requirement of the OMA that a “quorum be present,” it is undisputed
that the Belding City Council being a five member public body, would require a minimum of
three members in order to constitute a quorum2. Plaintiff argues that there is circumstantial
evidence that the three men did meet together to deliberate. In the alternative she argues that
there is evidence that the three met in a sub-quorum in a manner that violated the act. She also
relies on Booth Newspapers, Inc v Wyoming City Council, 168 Mich App 459, 472; 425 NW2d
695 (1988) to support her claim that a sub-quorum of the Belding City Council had met in at
least a “round the table” fashion on the morning of January 20th to deliberate and decide the issue
of her termination. In Booth, this Court held that meetings of a constructive quorum or sub-
quorum do violate the OMA. A constructive quorum or sub-quorum meeting occurs when a
public body intentionally meets in smaller groups outside of open meetings in order to set public
policy. Id. In Booth, this Court affirmed a finding that OMA violations had occurred where
Wyoming City Council members had sub-quorum luncheon meetings to deliberate an issue to be


2
 Section 2.4 of the City Charter provides that quorum consists of a majority of the number of its
members, and Section 4.1 of the Charter provides that the City Council shall consist of five
members. Accordingly, three council members constitute a quorum.




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decided by the council and talk strategy. Id. Thus plaintiff argues that even if there was no
quorum, which in this case would require three or more members of the City Council to be
present, there was a sub-quorum present at the Parts Plus store on the morning of January 20th
convened for the purposes of deliberations outside of an open meeting. We reject both
arguments.

        Here, there is no competent evidence that defendants Cooper, Jones, and Scheid, the three
council members at issue, met together on the morning of January 20, 2015. When defendant
Cooper came to the Parts Plus store that morning he only had a conversation with defendant
Jones about his intent to bring a motion to terminate plaintiff at the Council meeting later that
evening. Defendant Scheid, while present at the store as an employee, was not a part of this
conversation. Defendant Jones confirmed that defendant Scheid did not take part in this
conversation stating in his deposition that “ he always made it a point that if another member of
the City council came in to discuss any city business that they always left the area of the other
council member so that there would only be two of them talking.” Defendant Scheid also
confirmed in his deposition that he did not take part in the conversation on January 20th stating
that he was out on the sales floor the entire time and only exchanged pleasantries with defendant
Cooper when he first entered the store. He had spoken to defendant Jones about the motion to
terminate plaintiff, but that was prior to January 20, 2015. Accordingly, since only two
defendants spoke to each other at a time, these conversations did not constitute a quorum, and
thus, were not meetings.

       In support of her motion, plaintiff submitted deposition testimony from community
member Robert Brown and city employee Ernest Thomas. Mr. Brown’s testimony was almost all
inadmissible hearsay. He testified that he was not present at the Parts Plus store on the morning
of January 20, 2015, instead he had heard a rumor that a meeting had occurred and he passed that
information on to plaintiff. He also testified that he does not recall from whom he heard the
rumor. Brown did not testify to the content of the conversations between the defendants nor did
he offer any evidence of the three of them meeting together. Defendants submitted the
depositions of Cooper, Jones, and Scheid. In those depositions the defendants admit presence at
the Parts Plus store on January 20, 2015 and concede that Cooper spoke to the other two
defendants about his intent to terminate plaintiff. They deny that any deliberation occurred.

        Plaintiff argues the significance of Jones’s conduct as evidence that a prohibited sub-
quorum meeting occurred at the Parts Plus store. It was Jones who moved to table consideration
of plaintiff’s proposed two year contract extension to January 2015. Jones admitted that he
would have voted for a one year extension at the time he made the motion to table to a time
certain but that he changed his mind because “he felt that it was time because there was strife in
the community.” Plaintiff’s argument is that the fact that Jones changed his mind within a short
time period along with the very limited conversation at the meeting where the termination vote
occurred created an inference that the conversations between Cooper, Jones, and Scheid were of
a substantive and deliberative nature. We disagree.

        First we find that there is no evidence that the three men met together as a quorum. There
is no dispute that Cooper met Jones and Cooper also met with Scheid and that Cooper informed
them of his intentions to move to terminate plaintiff. However, the plaintiff’s proofs fail to create
an inference that deliberations took place. The word “deliberating” has been defined as “the act

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of carefully considering issues and options before making a decision or taking some action
…..by analyzing, discussing, and weighing the evidence.” Ryant, 239 Mich App at 434.
Accordingly, to be considered deliberation under the OMA, it is required that there be “options”
before the members of the public body and that a decision is reached by analyzing, discussing,
and weighing the evidence.” Id. In Booth, this Court held that meetings of a constructive quorum
or sub-quorum do violate the OMA. A constructive quorum or sub-quorum meeting occurs when
a public body intentionally meets in smaller groups outside of open meetings in order to set
public policy. Id. In Booth, this Court affirmed a finding that OMA violations had occurred
where Wyoming City Council members had sub-quorum luncheon meetings to deliberate an
issue to be decided by the council and talk strategy. Id. Similarly in the Booth Newspapers, Inc v
Univ of Michigan Bd of Regents, the Michigan Supreme Court determined that the board of
regents had violated the OMA when they deliberately met as both a quorum and as a sub-quorum
nominating committee to discuss and make decisions regarding candidates for President outside
of the public purview. 444 Mich at 227.

        Despite plaintiff’s arguments to the contrary, that is not what happened in this case. The
evidence established that on the morning of January 20th, defendant Cooper came to the Belding
Parts Plus Store and had a conversation with defendant Jones whereby he advised him that he
was going to bring a motion to terminate plaintiff at the Council meeting later that evening, a
plan that was already a well-known fact. Defendant Jones then indicated to defendant Cooper
that he would prefer to do one more evaluation of plaintiff before the motion to terminate was
brought. Defendant Cooper stated in his deposition that he expressed his belief that he did not
believe that another evaluation was necessary, however, he did not try to talk defendant Cooper
into supporting his motion. Furthermore, there is evidence that defendant Scheid was not a part
of this conversation between Cooper and Jones. Scheid testified that he was present in the store
that morning but only exchanged pleasantries with defendant Cooper and remained on the sales
floor the entire time defendant Cooper conversed with defendant Jones. Defendant Scheid did
concede that he had a conversation with Jones prior to January 20th in which he too expressed his
position that he would vote for a motion to terminate plaintiff. However, like defendant Cooper,
he too stated in his deposition that he had just expressed how he felt to defendant Jones and did
not try to sway him. Thus, there was no intentional meeting convened between defendants
Cooper, Jones, and Scheid for the purpose of deliberating toward or rendering a decision on a
public policy in an effort circumvent the OMA. There were merely discussions had concerning
the fact that defendant Cooper was going to bring a motion to terminate plaintiff at the January
20, 2015 Council meeting and what everyone’s position was going to be on that motion.

        In this case we do not have the testamentary evidence and admissions found in Booth that
the sub-quorums or quorums discussed extensively matters of public concern. In the light most
favorable to plaintiff the only evidence we have about the subject matter of the sub-quorum
conversations is the sworn testimony of Scheid, Jones and Cooper that Cooper reiterated his
intent to move to terminate plaintiff to Scheid and Jones. They provide the only competent
evidence on the subject. The witnesses deposed by plaintiff based their substantive testimony on
the observations of others and their own speculation. Plaintiff declined to depose other persons
whom she argues had firsthand knowledge. She has not impeached the veracity of the testimony
of Jones, Scheid or Cooper by demonstrating any significant inconsistencies.



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        Based upon this record plaintiff does not meet her burden of going forward. Karbel v
Comerica Bank, 247 Mich App 90, 97; 635 NW2d 69 (2001). Accordingly, because plaintiff
failed to present evidence sufficient to establish that a question of material fact existed regarding
whether defendants engaged in “deliberations” or made “decisions” outside of a public meeting
regarding her termination, the trial court did not err by granting summary disposition in favor of
defendants under MCR 2.116(C)(10).

       Affirmed.

                                                              /s/ Joel P. Hoekstra
                                                              /s/ Cynthia Diane Stephens
                                                              /s/ Douglas B. Shapiro




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