City Charter, OMA, and the Potter Panic

We have received several requests to go deeper into the accusations made against Mayor Graham and Council Member Reeves. We can’t find evidence of wrongdoing. Here is our attempt to reflect on the procedures and our understanding of the law. Those making the accusations may have some alternate nuance of concern. We are attempting here to clarify as much as we can…..

On October 30th, 2025, at noon, the Mayor, Council Member Reeves, Tom Richards (past city manager), and Nick Whitiker met in a public room at City Hall, with the door open, to discuss the city manager’s resignation, the hiring process, interim needs, and a few related issues. This was initiated at the request of Graham/Reeves. By every account, it was an information-gathering session.

The reaction was immediate and heated. Immediately, Graham/Reeves were confronted by a resident as they walked out of City Hall. Some residents accused the Mayor and Council Member of violating the City Charter and the Open Meetings Act, holding a secret meeting, demanded resignations, and questioned their acquaintance with Andy Potter, a plaintiff in an employment case against Harbor Springs. The uproar triggered an investigation of Wendy Reeve and Mayor Tom Graham, and forced a special meeting filled with frustration.

The problem is, it’s hard to see how this meeting violated either the Charter or the OMA. We asked a municipal lawyer, and he couldn’t find a violation.

**At the City Council meeting on November 6, City Attorney Jim Ramer was asked for a legal determination on whether the “noon meeting” violated the OMA or the City Charter. He stated plainly that there was no OMA violation.

Attorney Ramer said: “I’ve given my opinion to the council and it’s in their hands right now. I’m not going to discuss it publicly unless they want me to.”

The more important question is quite the opposite: given the rapidly rising cost of things like the substation project or the pending search for a new city manager, why are we attacking the few attempts at oversight instead of demanding more oversight?

Perhaps there are ways this could have been done to make people love each other. Short of that, each council member’s responsibility is fundamentally oversight. Given the heat of the moment, the actions by citizens and council are explainable. But it represents a misunderstanding of the law and duty. It would be far worse if future council members are afraid to meet with City Staff out of fear that citizens can bully them into a corner, or their council peers will launch an investigation, or that future City managers operate without informed oversight.

A bit of context makes this clearer.

## TL;DR - Too long; Didn’t Read - Michigan’s Open Meetings Act (OMA) is about where and how public bodies decide things, not about banning council members from learning, asking questions, or talking to citizens.

- The Harbor Springs Charter and the First Amendment do not allow a blanket gag on council members seeking information from staff, former staff, or plaintiffs like Andy Potter. They do limit council from directing staff or deciding city business outside public meetings.

- The Potter case is about whether the City violated state and federal law in an employment action. Council’s duty is to make sure the City Manager follows the law and corrects any unlawful practices, not simply to minimize settlement exposure.

## 1. The Text: What the OMA and Charter Actually Say Start with what’s written, not what’s being said at the microphone during open sessions at City Council.

### Michigan Open Meetings Act – Key Definitions The OMA gives us three definitions that actually matter here:

- “Meeting” means *“the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy.”*

- “Decision” means *“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.”*

- OMA’s core rule: “All deliberations of a public body constituting a quorum shall take place at a meeting open to the public” and “all decisions of a public body shall be made at a meeting open to the public.”

The Michigan Attorney General’s handbook explains the Legislature’s aim: to “foster openness in government” so citizens can see how decisions are made, and to “enhance responsible decision making.”

Nowhere does OMA say: “Council members may not learn or ask questions outside a meeting.”

In fact, AG guidance makes the opposite point: members of a public body can attend workshops, conferences, and information sessions without triggering OMA so long as they do not use that gathering to deliberate toward or render a decision on public policy.

### Harbor Springs City Charter – Council Oversight and Staff The Harbor Springs Charter:

- Gives the City broad authority “to do any act to advance the interest of the city” and to pass and enforce ordinances for “the good government and prosperity of the municipality and its inhabitants.”

- Gives Council explicit investigative authority. Section 6.7 (“Investigations”) authorizes Council to investigate the affairs of the City and the conduct of any city department, and to compel attendance of witnesses and production of records.

- Establishes a council–manager form of government. In Section 4.6 (“Relationship of Council to Administrative Division”), Council sets policy and oversees; the City Manager runs the day-to-day administrative service and supervises employees. Individual council members are not supposed to give orders to staff.

- Separately defines the Clerk and Treasurer as charter officers with independent duties around records and finances (Sections 4.11 and 4.12). The Treasurer (Whitaker’s hat when he’s wearing it) is an officer whose financial reporting responsibility runs directly to the Council as the governing body for the City’s finances.

Put simply, the Charter does two things at once:

- Empowers Council to investigate, question, and oversee.

- Channels day-to-day instructions to staff through the City Manager.

It does not say:

- “council members may not talk to staff,” or

- “may not talk to citizens involved in litigation,” or

- “may not meet to gather information.”

## 2. OMA’s Real Purpose: Prevent Secret Decisions OMA is aimed at stopping secret decisions, not policing how elected officials learn things.

The trigger is specific:

- If a quorum (3 of 5 in Harbor Springs) gathers for the purpose of deliberating toward or rendering a decision on public policy, that’s an OMA “meeting” and must be noticed, open, and minuted.

- “Decision” is about using the body’s power on public business. It’s not “three people did anything together.” It’s a commitment by the body on a motion, proposal, ordinance, contract, budget, policy, etc.

Classic examples of decisions:

- Agreeing as a quorum to approve a settlement at $X.

- Reaching a consensus as a quorum to fire the manager and then rubber-stamping it later.

- Voting outside a public meeting by email or text on city business.

Classic example of *not* a relevant “decision” under OMA:

Three council members meet and decide to buy chocolate chip cookies for their working lunch.

That’s “a decision” in plain English, but it is not a “decision” OMA cares about, because it has nothing to do with public policy or the exercise of the public body’s power. OMA is not a lifestyle law; it’s a governance law.

So the line is:

- Deciding public business or deliberating as a quorum toward that decision = OMA.

- Learning, listening, asking questions, even deciding what snacks to bring = *not* OMA’s target.

That’s the lens you apply to the October 30th type meeting.

## 3. It Is Unconstitutional to Bar Council Members from Seeking Information Now overlay the First Amendment.

The First Amendment protects speech and association against restrictions by all levels of government, including cities. It also forbids the government from regulating speech based on its content or viewpoint.

That cuts both ways:

- You can’t gag citizens because they criticize City Hall.

- You also can’t gag elected officials from talking to citizens or staff about public business, simply because the topic is uncomfortable or litigious.

A federal case out of Victorville, California, is instructive. The city tried to prohibit municipal employees from privately discussing work grievances with council members. A federal judge ruled that the ordinance violated the First Amendment. It unlawfully restricted political speech between employees and their elected representatives.

If you cannot bar employees from talking to council, you definitely cannot bar council members from talking to employees or residents as citizens and representatives.

What can be restricted?

- Disclosure of privileged or confidential information**

- attorney client privileged legal advice;

- closed session discussion on settlement positions;

- personnel records exempt under FOIA.

- **Misrepresentation of authority**

- a single council member cannot commit the City to a specific settlement;

- cannot promise outcomes they have no power to deliver.

You can’t constitutionally say:

**“You may not talk to Andy Potter at all because he sued us.”

You can** say:

**“You may not disclose closed-session settlement positions or privileged legal advice to anyone, including Andy Potter.”

One is a gag rule. The other protects legitimate confidentiality.

## 4. “Directing Staff” vs “Asking Staff Questions” The council–manager model exists to prevent five separate bosses from micromanaging employees.

Directing staff**, in this context, means things like:

- Telling staff what to do or not do in their job:

- “Stop working on that report.”

- “Approve that permit.”

- “Change your schedule.”

- Interfering in hiring, firing, or discipline:

- “Don’t terminate that person.”

- “You will give this employee a written warning.”

- Reprioritizing work:

- “I want you to drop X and focus on my pet project instead.”

That is management. Under the Charter, management belongs to the City Manager.

By contrast, asking staff questions is not “direction”:

- “Can you walk me through how we handled notice in that meeting?”

- “What is the standard firing procedure we used in Potter’s case?”

- “What did you see when you were in that role?”

Those are information-seeking, not orders. They do not usurp the Manager’s role or violate OMA, so long as:

- There is no quorum collectively deliberating policy with staff; and

- The council member doesn’t use the conversation to give operational instructions or promise outcomes.

Example:

**The Mayor asking Treasurer/Clerk Nick Whitaker to reach out to the Michigan Municipal League for help in a manager search is hardly “direction” in the sense OMA or the Charter is worried about. Whitaker could have said “No,” or “We should bring this through Council first.” More importantly, that kind of administrative assistance, Clerk/Treasurer executing actions needed to support a Council-approved search, is completely normal. It’s part of what a clerk/treasurer does for the governing body.

You want to protect against individual council members running departments, not against them asking staff for help, information, or professional assistance.

## 5. What “Deciding” Means Under OMA Legally, “decision” has a very specific meaning:

“Decision” means 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.

In OMA terms:

- Deciding** = committing the public body’s power on official business.

- **Deliberating toward a decision** = collective, substantive discussion by a quorum aimed at reaching that outcome.

So:

- 3 council members deciding to buy chocolate chip cookies for themselves? *Not* an OMA decision.

- 3 council members agreeing to settle Potter’s lawsuit for $X as a body and then rubber-stamping it later? OMA decision that must occur in an open meeting (or with limited closed-session steps as the statute allows for litigation strategy, but final decision still public).

The correct question for any small-group meeting is not “Did they think anything?” It’s:

***Did this quorum collectively deliberate toward or render a determination on a matter of city public business** that requires a vote?*

If the answer is no, OMA is not the tool for punishment.

## 6. The Potter Case: It’s About State and Federal Law, Not Local Loyalty The lawsuit Andy Potter brought is not about whether he was “nice” or “difficult.” It is about whether the City of Harbor Springs, through its manager and process, violated state or federal employment law in terminating him.

That distinction matters:

- The legal question is: Did the City comply with federal and Michigan employment statutes?

- The forum for that question is the federal and state courts, not City Hall whisper networks.

City Council’s job is not merely to “avoid a big settlement.” Council’s job is to:

- Make sure the City Manager follows the law going forward.

- Correct any policies or practices (like firing procedures or grievance handling) that a court finds unlawful or that plainly don’t meet best practices, even before a verdict.

- Learn enough about what happened that they can fix the system, not just sign a check.

If a court ultimately finds that the City’s firing procedure, documentation, or due-process steps were deficient, Council has a duty to correct that process for every future employee. The Potter case then becomes a very expensive training class on what not to do.

And along the way:

- Andy Potter is a citizen of Harbor Springs.

- He has done what the law says you must do if you believe your rights were violated: file a complaint with the proper court.

- Speaking truthfully in his lawsuit, or in any other case, is a legal obligation, not disloyalty.

Labeling him a “competitor” or “enemy” because he forced the City’s actions into the legal system is:

- Legally irrelevant, the case is about facts and statutes, not loyalty.

- Civically corrosive, because once we start treating truth-telling in court as betrayal, we have declared war on objective justice.

- Poor leadership, because it suggests city employee loyalty should be to the city over state and federal law.

Council members can and should talk to him. The only line they can’t cross is:

- Disclosing privileged legal advice or closed-session settlement positions;

- Purporting to negotiate a settlement on behalf of the City without proper authority.

Everything else, asking “What happened from your vantage point?”, “What do you think the City got wrong?”, “What should we fix going forward?”, is exactly the kind of inquiry an adult governing body should make.

## 7. The City Attorney’s Role: Explain the Law, Don’t Be the Judge The City Attorney has three jobs:

- Explain what the law says and how courts are likely to read it.

- Advise Council on risk, procedure, and options.

- Represent the City in litigation and negotiations.

What the City Attorney does **not** do:

- Rule that someone violated the Charter or OMA, that’s ultimately for courts, an ethics body, or the voters.

- Act as judge and jury in disputes between council members.

- Declare people “guilty” in closed session.

OMA allows closed sessions for narrow purposes, including:

- Certain personnel matters;

- Consulting with the attorney about a specific trial or settlement strategy in pending litigation.

- Using a closed session to debate abstract interpretations of Charter powers or whether someone’s behavior is politically convenient is much harder to justify. Those discussions should be as public as possible, because they go to how we govern ourselves.

- A public body may go into closed session to consult with attorneys regarding trial or settlement strategy in connection with pending litigation, but only if an open meeting would have a detrimental financial effect on the city’s negotiating position.​ That’s exactly the kind of thing OMA contemplates.

- Any **final decision** on settlement must be made in an open session, not closed session.​

- Attorney-client privilege protections apply only to strictly legal advice, not to discussions of business strategy or non-legal matters.

Frankly, it was wrong for the City Council to ask, and for the City Attorney to accept, the Council’s request for him to investigate the October 30th meeting.

A city attorney’s client is the city (municipality) as a whole, typically represented by the council majority. Having the city attorney investigate one or more council members creates a conflict of interest and blurs the attorney’s role from legal advisor to investigator/judge. This practice is ethically problematic and inconsistent with standard municipal attorney practice.

The healthy sequence is:

- Attorney explains the law and risk assumptions, ideally in public where possible.

- Council debates in open session how they want to apply those principles to their own behavior.

- If there’s an alleged violation, due process happens in the correct forum, not through pronouncements in closed session.

The City Attorney is counsel, not a one-person ethics court.

## 8. Investigation: Council Can, and Should, Ask Questions, Together or Separately Back to basics: the Charter explicitly authorizes the Council to investigate city affairs.

How can they do that in practice?

- **Individually:** any council member can talk to staff, former staff, and citizens to understand issues.

- **In pairs: **two members together can interview people, review records, and compare notes.

- **As a full body: **all five can show up at the same meeting or site visit, so long as they do not use that gathering to deliberate toward or render a decision on a public policy matter.

This is an important nuance that gets lost:

- OMA does not say “If a quorum is physically present anywhere, at any time, OMA is automatically violated.”

- OMA says: if a quorum convenes for the purpose of deliberating toward or rendering a decision on public policy, that’s a meeting that must be open.

If all 5 council members attend, say, a public open house at the DPW to understand infrastructure, and they mingle, listen, and ask staff and citizens questions without collectively deliberating toward a decision, that does not violate OMA.

Same idea with an investigation session. All five could attend an informational meeting with Potter, staff, and Tom Richards if they scrupulously avoid deliberating and making commitments. The line is what they do with their quorum, not the headcount by itself.

In fact, if council members never show up together anywhere except for their twice-monthly meetings, you can safely assume they are under-investigating, not over-investigating.

## 9. The October 30 Meeting and the “Rarity Problem” As described, the October 30 meeting:

- Involved the Mayor, Councilmember Wendy Reeves, former City Manager Tom Richards, and City staff.

- Was known to the current City Manager.

- Involved no vote, no motion, no collective agreement to commit city power, just conversation and questions.

If that’s accurate, it’s hard to see:

- An OMA violation: no decision, no deliberation toward a formal determination;

- A Charter violation: no direction of staff, just discussion and inquiry;

- A constitutional justification for declaring “you may not talk to Andy” or “you may not talk to Tom because he’s a witness.” Frankly, the City Attorney and City Manager are also witnesses.

The more important question is:

Why was this unusual enough to trigger a political firestorm?

If this government were functioning the way the Charter, OMA, and the Constitution expect, meetings like this would happen regularly:

- Gatherings where elected officials listen to staff, former staff, and citizens;

- Sessions where multiple perspectives, including a former manager’s, are brought into the room;

- Conversations where lawsuits are treated as case studies on “what did we get wrong and how do we fix it?” rather than as loyalty tests.

The fact that this one meeting sparked a wave of accusations says more about the culture of avoiding hard conversations than about the legality of what happened.

## 10. Where We Go From Here If we strip out the personalities and look at first principles, a healthier Harbor Springs government would:

- Reaffirm the basic OMA rule:

- no secret public-business decisions;

- no off-book quorum deliberations on policy.

- Clarify the Charter line between:

- directing staff (not allowed for individual members) and

- asking staff questions or requesting help (necessary and encouraged).

- Acknowledge that the Potter case is about whether the City violated state and federal law, not about who is “for” or “against” Harbor Springs.

- If a court finds violations, the response must be to correct unlawful policies and practices, including firing procedures.

- The CC’s job is to make sure the City Manager and staff follow those laws going forward.

- Reject the framing of plaintiffs as enemies.

- Exercising legal rights and telling the truth in court is not betrayal.

- Turning Potter into an enemy is corrosive to the pursuit of objective justice and a dangerous precedent for every future employee or resident.

- The City Council is wrong to suggest any association with Potter is wrong.

- Use the City Attorney as a legal advisor, not as a judge in closed session.

- Explaining the law doesn’t require secrecy.

- Allegations about behavior that affects public trust should be debated publicly, not buried.

- Normalize investigation and inquiry.

- Council members individually, in pairs, or as a full body can investigate as they wish, as long as they don’t deliberate and decide policy in secret.

- The Mayor and any member should feel free, indeed obligated, to seek out multiple sources, including staff, former staff, plaintiffs, and former managers like Tom Richards.

If people come away from this thinking “the problem was that they asked too many questions,” we’ve learned exactly the wrong lesson.

The right lesson is simpler and older than Harbor Springs:

- Decisions on public business must be public.

- Questions must be free.

A city that insists on both will govern itself better than one that punishes curiosity.