Traverse City Record-Eagle

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July 11, 2014

Commissioners' slip may have violated open meetings law

TRAVERSE CITY — Two city commissioners' lack of preparation in a city manager evaluation may have caused a violation of the state's Open Meetings Act, an expert said.

Traverse City commissioners on July 7 went into closed session at City Manager Jered Ottenwess' request for his first annual job performance, a step that complied with state open meetings laws. But once behind closed doors, Commissioners Jeanine Easterday and Tim Werner acknowledged they had not reviewed the compiled written evaluations that had been emailed to them.

Moments earlier, neither spoke up when Mayor Michael Estes asked commissioners if they had any concerns about the evaluation process.

"I didn't even know when we went into closed session that we had received anything," Easterday said. "Tim and I both looked at each other and said, 'Were we supposed to have done something?' Come to find out we had both missed the email, so we talked about the process," she said.

The discussion of process, rather than conducting Ottenwess' evaluation, appears to violate the open meetings act, an expert in state open records and meetings law said.

Robin Luce-Hermann, attorney for the Michigan Press Association, said exemptions to open meeting requirements allowed under the law are designed to be narrowed construed.

"This particular exemption is to consider a periodic personnel evaluation of a public officer or employee if the named person requests a closed hearing," Luce-Hermann said. "Going into the closed session to discuss the evaluation process is not within the exemption itself. As soon as it became clear it was going to be about the process and not the consideration of the evaluation itself ... they should have returned immediately to open session."

City attorney Lauren Trible-Laucht did not return calls seeking comment about the potential violation.

Commissioners also learned they were supposed to compare Ottenwess' year-long effort against specific performance criteria detailed in his employment contract. Commissioners weren't given a copy of the contract before they headed into closed session.

"I've been complaining for years and they never give us a copy of the contract," said Commissioner Jim Carruthers. "But I give Jered credit, we got one the next day."

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