MENOMINEE — The Menominee City Council didn’t have to accept City Manager Brett Botbyl’s recommendations for marijuana retail licenses last September, when Botbyl was the interim city manager and served on the city’s Marijuana Selection Committee.
It could have reviewed the marijuana applications before voting to approve retail licenses.
But the fact it didn’t is relevant to whether the city violated the Open Meetings Act during the selection process for marijuana retail licenses, attorneys for five marijuana companies in a consolidated argued before 41st Circuit Court Judge Mary Barglind in the Menominee County Courthouse Thursday.
Matt Cross of Plunkett Cooney, the attorney representing the City of Menominee, Michael Cox of The Mike Cox Law Firm, the attorney representing Rize, and Highwire Farms’ attorney Tamaris Henagan appeared in person before Barglind. Others appeared remotely and were shown on a large screen in the courtroom.
The scores the city’s Marijuana Selection Committee gave each application after reviewing them are important to determining which companies should receive licenses because the Michigan Regulation and Taxation of Marihuana Act (MRTMA) requires a competitive process, Henagan said. “Somebody has to be a winner,” she said.
The scoring process required the selection committee to make decisions about each application, and because of the committee’s decision-making capacity, it falls under the Open Meetings Act, Henagan and other attorneys argued.
They disagreed with the position Cross has made, suggesting the city council was the decision-making body because it had the authority to approve the licenses.
City Manager Brett Botbyl was police chief and interim city manager when the marijuana licenses were issued last September, and he sat on the Marijuana Selection Committee with then City Engineer Tricia Alwin and Fire Chief Mark Peterson.
Botbyl wrote the memorandum to the city council recommending The Fire Station Cannabis Co. and Rize receive the two sought-after adult-use recreational marijuana licenses and recommending Attitude Wellness/Lume and AgriMed receive medical marijuana retail licenses.
The Marijuana Selection Committee didn’t have the authority to award licenses, Cross said, and as a result it wasn’t a public body and shouldn’t be required to follow the Open Meetings Act.
But attorneys for the marijuana companies suing the city over what they call a flawed application process presented one reason after another for Barglind to rule in their favor instead of for the city council.
Most of the attorneys presented examples from previous cases involving a selection process to support their arguments, but Cross downplayed the importance of this case law.
“We can both cherry pick cases and come to the conclusion we want. I don’t think that helps us today,” he said.
“The Marijuana Selection Committee was only in power to review applications and score them. By scoring and ranking them, that was in essence a recommendation,” he said. A recommendation isn’t a decision, he said.
“The meetings at issue weren’t open meetings as defined by OMA,” he said.
But Barglind’s questions to Cross suggest she wasn’t entirely convinced. She asked whether the rubric the selection committee relied on said the committee’s decision was final and not subject to review on scoring.
“If anything, it was artfully worded,” Cross said. While the city has a “more colloquial understanding” of what a decision is, Cross said, “under the Open Meetings Act, that wasn’t a decision.”
Barglind wanted more explanation. Cross said the selection committee’s scoring “was one step of a multistep process. It was not a decision. It was not a recommendation.” At the same time, Cross said, the scores weren’t subject to appeal.
But Henagan said the term “selection committee” implies the committee was making a decision, or “selecting,” which companies were best-suited to comply with the Michigan Regulation and Taxation of Marihuana Act. The act of “selecting” is a decision-making process, she said.
Whether Barglind agrees the committee made decisions could determine whether the city is found to have violated the Michigan Open Meetings Act.
The Open Meetings Act defines a “public body” as “any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, that is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function.” It also includes “a lessee of such a body performing an essential public purpose and function pursuant to the lease agreement; or the board of a nonprofit corporation formed by a city under section 4o of the home rule city act.”
The city’s marijuana ordinance said the selection committee would review and score the applications using a rubric, then compile a list of applicants and their scores and forward it to the city manager, who would then forward the scores to the Judicial & Legislative/Personnel & Labor Committee.
After consideration, the JL/PL Committee was expected to make a recommendation “for approval, denial or approval with conditions,” for each application. When the JL/PL Committee met in September, it voted to send the scores to the city council without a recommendation.
The city council relied on Botbyl’s recommendations and approved them at its Sept. 20, 2021 meeting.
The JL/PL Committee could have deviated from the scoring, Cross said. It chose not to. “They certainly had the authority to deviate from the scores. The city council was not bound to those scores,” he said.
In practice, the city council had delegated the decision-making process to the selection committee, Henagan said.
Henagan also pointed out the city’s marijuana ordinance doesn’t specifically say the recommendations would come from the city manager. The ordinance says the scores were to be forwarded to the city manager, who would forward them on to the JL/PL Committee.
“When you add into it the city manager was a member of the selection committee, there’s an expectation these recommendations came with the recommendation of the selection committee,” Henagan said.
While attorneys for the city referred to the case of Davis v the City of Detroit Financial Review Team, involving an advisory committee, Henagan said it wasn’t applicable because Michigan’s marijuana statute regulates how marijuana licenses are to be determined when more companies apply for a limited number of licenses.
The consolidated case before Barglind is more similar to the Booth Newspapers Inc. v University of Michigan Board of Regents case involving the selection of a new president at the University of Michigan, where the court ruled the Open Meetings Act applied, Henagan said.
“Whenever you look at a competitive process, someone has to be a winner. Just common sense alone, we all look at a competitive process and say highest score is going to win. A competitive process does indicate competition. MRMTA was designed to do just that, create a competition,” Henagan said.
To say the City of Menominee’s Marijuana Selection Committee didn’t have decision-making authority contradicts the fact the committee said the scores were “unappealable,” she said.
Besides the public interest in open government, claims of Open Meetings Act violations allow for relief for the suing parties, Henagan said, suggesting the court should find the city should pay the companies’ attorneys’ fees.
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