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TRAVERSE CITY — A Michigan Court of Appeals decision released Thursday strikes down a loophole Traverse City school officials argued should exist in Michigan’s transparency laws.

A three-judge panel unanimously affirmed an earlier order from 13th Circuit Court Judge Kevin Elsenheimer in which he said Traverse City Area Public Schools must release a document containing complaints levied against former Superintendent Ann Cardon. The decision declares the district improperly maneuvered to shield the document from disclosure by attaching it to closed-session meeting minutes and claiming it was protected by the Open Meetings Act.

The Traverse City Record-Eagle demanded the release of the letter and filed a lawsuit in January 2020 against TCAPS and then-Board of Education President Sue Kelly — who wrote the complaint document and distributed it to trustees in an Oct. 7, 2019, closed session.

The Record-Eagle first sought the letter’s release through a Freedom of Information Act request days after the meeting, as district officials were busy hashing out a deal for Cardon to leave her job with a $180,000 payout. TCAPS officials denied the request and a subsequent appeal.

TCAPS lawyers argued the OMA allowed the district to attach the letter to the closed-session meeting minutes, effectively shielding the document from public disclosure without a court order.

A binding state precedent prohibiting such action is now in the books after the Court of Appeals published its decision. The decision closes a loophole that would have given cover to public governing bodies statewide to conceal records that otherwise would be subject to FOIA.

“This decision is a pivotal win for the future of government transparency in Michigan,” said Record-Eagle Executive Editor Nate Payne. “This case is just the latest battle in a decades-long war waged in our state by public officials who incorrectly believe taxpayers don’t have a right to access decisions made on their behalf.”

Robin Luce-Herrmann, of Butzel Long, attorney for the Record-Eagle, said she is pleased the panel of three judges “recognized the dangers” of TCAPS’ position.

Others bringing similar lawsuits now can use the appeals judges’ decision in their arguments, Luce-Herrmann said. Courts must now follow the guidance set forth in the ruling. However, Luce-Herrmann added the caveat that the Michigan Supreme Court could overturn the decision if TCAPS appeals the ruling.

TCAPS has 21 days to ask the Court of Appeals to reconsider its decision and 42 days to file an application for the Michigan Supreme Court to take up the matter. The complaint letter could remain hidden from public view during that time.

The current TCAPS Board of Education has pushed for a quicker resolution, previously directing district legal counsel to seek a mutual agreement with the Record-Eagle.

Four of the seven TCAPS trustees who were on the board at the time Cardon resigned no longer hold seats. Only Kelly, Matt Anderson and Erica Moon Mohr remain. Moon Mohr has long held the letter should be released and pushed for board transparency.

The new trustees all voiced a want to move on from the lawsuit.

“This obviously isn’t a battle we started, but we acknowledge that this is a loaded case with many parties involved — and we’re one of them,” Board President Scott Newman-Bale said Thursday. “But we are limited in what we can do and have to see the process through.”

Kailen Piper, attorney for TCAPS, during oral arguments contended the ruling in Titus vs. Shelby Township that said a transcript of a closed session was part of the minutes and therefore not subject to FOIA should be interpreted to allow TCAPS’ maneuver.

The Court of Appeals ruled such a comparison was “unpersuasive” and that allowing a governing body to shield documents from public view via OMA protections would make parts of state transparency laws essentially toothless.

Court of Appeals Chief Judge Christopher Murray said during oral arguments last week that the TCAPS position “makes no sense.”

The TCAPS argument stating the complaint letter was part of closed session deliberations also did not convince the court. Although OMA allows for deliberations behind closed doors, it does not classify communications such as the complaint letter as part of those deliberations.

“The Titus Court focused on the fact that the transcripts were part of the minutes because of the ‘plain and ordinary meaning of minutes’ and not because the transcripts involved deliberations of the public body within the closed session,” the Court’s ruling stated. “(TCAPS) failed to persuasively show how the Kelly document, which contained complaints against Cardon, falls within the plain and ordinary meaning of ‘minutes.’”

Piper and Kelly did not return calls for comment as of 5 p.m. Thursday.

The ruling is a victory for journalists and transparency advocates across Michigan.

Many news outlets — including the Detroit News and Detroit Free Press, the Michigan Press Association, Bridge Michigan and MLive Media Group — filed an amicus brief in February supporting the Record-Eagle’s lawsuit and highlighting the ramifications of the court’s decision.

Local calls for accountability from TCAPS rang out in the weeks and months following Cardon’s controversial brokered departure. Outrage sparked greater attendance at board meetings filled with passionate and critical public comment.

Those demanding change from the board formed TCAPS Transparency, a group that spearheaded recall efforts against three sitting trustees. Justin Van Rheenen, cofounder of TCAPS Transparency, said the ruling brings closure to the ordeal.

“This is going to allow us to move forward as a district after a couple years of up-and-down emotions,” Van Rheenen said. “At least I hope that’s what it’s going to do.”

The contents of the letter pale in comparison to the effect the Court’s ruling has on the future of transparency, Van Rheenen said.

“What the letter says isn’t going to change the past,” he said. “This is for the greater good of every community with a public body that thinks it’s OK to hide something.”

The Record-Eagle also argued a cross appeal for an OMA violation relating to the naming of Jim Pavelka as interim superintendent following Cardon’s ouster. Like Elsenheimer, the Court of Appeals found that the Record-Eagle failed to present sufficient evidence to establish a violation of OMA and that the claim was properly dismissed.

Follow www.Record-Eagle.com for more updates.

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