Did the Grand Traverse County Board of Commissioners violate the Michigan Open Meetings Act (OMA) while handling a lawsuit filed against the county last year? That question is at the center of a new lawsuit, which alleges that the county board repeatedly shirked state transparency laws after it was sued for transferring a long-standing county park to Long Lake Township.

The new lawsuit was brought by attorney Brace Kern of BEK Law on behalf of his client, Long Lake Township resident Kay Ingraham, who alleges the county board has failed to abide by the OMA on numerous occasions in the past year. Those alleged OMA violations pertain to another lawsuit, also brought by Kern, over the allegedly unlawful transfer of Twin Lakes County Park. The Twin Lakes suit was served to two defendants – Grand Traverse County and Long Lake Township – on December 29 of last year.

The controversy over Twin Lakes dates back to the fall of 2021, when Long Lake Township put forward a proposal to take over ownership of the park from Grand Traverse County Parks and Recreation. Parks and rec commissioners turned down the proposal, but county commissioners – who had the final say – voted 4-2 in March 2022 to give the park to Long Lake Township. The transfer was finalized last September, and Kern’s initial lawsuit, brought on behalf of a pair of Long Lake Township landowners, followed shortly thereafter.

Since that filing, Kern has argued that Grand Traverse County erred in allowing the transfer of the park, which took form in 1941 when Parm Gibert – a Grand Traverse County judge – conveyed 25 acres of land to the county. Gilbert’s gift specified that the land be used “as a county park, to be owned, improved and used as such and for recreation purposes.” Similar gifts from Gilbert and other dedicators grew the park over the course of several decades. Plaintiffs argue those land gifts and their “dedication for a specific purpose” amount to a deed restriction on the Twin Lakes property, and that such restrictions should have barred the county from dispensing with it.

“The County’s current Board of Commissioners has forgotten the past, failed to honor the intent of the dedicators, and violated the restrictive covenants by dispossessing the County of ownership, use, and improvement of Twin Lakes County Park,” the Twin Lakes lawsuit states. Plaintiffs are seeking “a judgment declaring that the publicly dedicated lands are restricted to ownership by Grand Traverse County for use and improvement as a County Park.”

In May, Kern emailed township and county officials, offering to dismiss the lawsuit if defendants agreed “to rescind/void the transfer of Twin Lakes.”

“This will be the only time that this offer will come at no cost,” Kern warned at the time. “If you refuse this settlement offer, all future offers to settle will require the payment of damages in addition to the above requirement.” Long Lake Township officials rejected the offer in May, and county commissioners did the same at their June 5 meeting.

That lawsuit is still pending: “We’re submitting briefs right now to have the court decide…whether the deed restriction prevents the county from transferring the park,” Kern tells The Ticker. He expects the question will finally be “fully submitted to the judge around Thanksgiving. And then the judge can take anywhere from two weeks to a year to decide.”

In the meantime, Grand Traverse County has until mid-month to respond to the new OMA lawsuit. County Administrator Nate Alger says he submitted the claim to the Michigan Municipal Risk Management Authority, which has assigned counsel.

At issue is whether the county board was obligated to schedule public meetings to discuss the Twin Lakes lawsuit. Kern and Ingraham think so, arguing that the county violated the OMA by not having public meetings.

“The settlement offer agenda item for June 5th was the first event through which the County’s residents were informed by their government that it was being sued over the transfer of Twin Lakes County Park,” the lawsuit reads. “The settlement offer was proposed to compel Defendant to provide public notice of this lawsuit. In the absence of that settlement offer, Defendant would have continued to hide the existence of this lawsuit by omitting it from their public notices, failing to conduct open meetings, and making decisions about the lawsuit behind closed doors.”

“How would the public know that their county is being sued over the transfer of Twin Lakes if you never put the lawsuit on an agenda and say, ‘This is what's happening, and here's what we're going to do about it?” Kern says. “I asked [Grand Traverse County] that question, and their response was, ‘Well, there's been plenty of media attention about it.’”

While the settlement offer did prompt the county board to discuss the lawsuit in a meeting, most of that discussion occurred in closed session. The OMA does allow a public body to consult with an attorney behind closed doors “in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body.” Two commissioners – Lauren Flynn and Ashlea Walter – voted against going into closed session.

“I am not able to comment on the pending litigation, but I did vote against going into closed session because I thought an open session about the potential lawsuit and ongoing issue with Twin Lakes would be good for the public benefit,” Walter told The Ticker in an email. “There is so little public information about the transfer and what really motivated the former commission to unload the property.”

After spending more than an hour in closed session, commissioners came back and voted 6-3 to reject the settlement, with Flynn, Walter, and TJ Andrews opposed. No deliberations on the matter happened in the public eye, though Board Chair Rob Hentschel said he would “offer discussion if anybody wants to grandstand at this time” before calling for a vote.

“What you’re allowed to do in closed session is receive your attorney's advice,” Kern says. “You could ask questions to understand the legal advice, but you can't deliberate the decision. The deliberations are supposed to be transparent and public. If Hentschel is asking the board if anybody wants to grandstand when they just came out of closed session, to me, that means you already deliberated.”

Matthew Cross is an attorney for Cummings, McClorey, Davis & Acho, the firm representing Grand Traverse County in the OMA lawsuit. He pushes back against Kern’s interpretation of the OMA.

“We believe Grand Traverse County complied with its obligations under the OMA and Mr. Kern has a fundamental misunderstanding of what the OMA does and does not require,” Cross wrote in an email statement provided to The Ticker. “We will address the merits, or lack thereof, of the claim through our court filings and intend to request sanctions as we believe the claim to be frivolous.”