Resolving Compensation..
Yesterday, Corporate Counsel released their Legal Memo regarding the current situation surrounding the Compensation Committee. As a Commissioner, I definitely found it helpful. The memo can be found here, as well as in Sarah Leach’s Substack piece on where we are now, a piece that I also found very helpful.
To begin with, I agree with several parts of the legal memo, especially around the May 2 meeting falling outside of the 45 day window and the fact that the vote regarding Commissioner Pay not having enough votes in favor so as to be valid. However, I do disagree with the memos plan to resolve the issue. The memo reads:
“Moving forward, we recommend that the Commission do the following:
• Memorialize the determinations and votes that occurred on April 11, 2024, and prepare written meeting minutes.
• Issue a corrected resolution reflecting that the only proper determinations were made on April 11, 2024, and were properly authorized by the Act, including:
o The Prosecutor, Sheriff, Treasurer, Clerk/Register of Deeds, and Water Resources Commissioner shall have a salary increase of 8% effective January 1, 2025, and a salary increase of 6% effective January 1, 2026.
o The Chairperson of the Ottawa County Road Commission shall have a salary set to $15,500 per year effective January 1, 2025, and a 0% increase effective January 1, 2026, and all other Commissioners of the Ottawa County Road Commission shall have a salary set to $12,500 per year effective January 1, 2025 and a 0% increase effective January 1, 2026.
The Act only requires that “determinations” be made within 45 days, which did occur on April 11, 2024. However, there is nothing in the Act preventing the Commission from, at a later date, memorializing what occurred in order to provide an open and transparent record.
It is my belief that the Compensation Committee that began on March 11 has passed its 45 day window and is no longer a viable Committee that is able to take any substantive action. I strongly doubt it has the power to issue a new Resolution and I definitely believe that it has no power to create any meeting minutes at this point.
In addition, there remains an outstanding issue not identified in the memo that I believe is important. It is my understanding that there were a total of five meetings held by the Committee. However, only two of those were noticed, and one of the meetings not noticed was the April 11 meeting. The Michigan Open Meetings Act states that “A meeting of a public body cannot be held unless public notice is given consistent with the OMA’. It further states that A decision made by a public body may be invalidated by a court, if the public body has not complied with the requirements”. I think all of that makes the idea that all the actions, not just around the Commissioner pay, are in jeopardy.
A further consideration is that MCL 45.472.(2).1 mandates that the Committee “shall consist of 7 members” in order to do work. Counsel’s legal memo states that “one member resigned at the beginning of the process in March of 2024, thus leaving six active members. There is nothing in the statute that prohibits or nullifies the actions of the Commission if it is short one member.” As a Commissioner, this sentence makes me uncomfortable. If we are accepting that “When a statute uses the word “shall,” it means it must be followed. The Michigan Court of Appeals held that “[t]he word ‘shall’ as used in a statute is considered to require mandatory conduct.” Hughes v Almena Twp, 284 Mich App 50, 62; 771 NW2d 453 (2009). (P. 5 - Legal Memo) Then it seems fairly straightforward that when the Committee went from seven to six members, it was out of compliance with the Act.
Having said all that, What do I believe should be our next steps?
Reject any determination that may have already been produced or to be produced as not legally viable, for the above reasons.
Either reconvene a new Committee session and redo the process fresh, or preferably, have the Board itself make the salary determination. If the Board were to choose the second option, it shouldn’t take that much time and we should be able to schedule a final vote well before upcoming elections.
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Edit - A public commenter pointed out at the 5/21 Talent and Recruitment meeting another issue with the process. MCL 45.472.(2) says “members shall be appointed before October 1 of the year of appointment.” We did indeed appoint four members in 2023, but they were appointed at the December 12th Board meeting, two and a half months later than the mandate from that MCL.
