Attorneys clear county commissioner over recent campaign donation suggestion

Legal opinion: Democratic Caucus members can discuss partisan political contributions

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THURSDAY, Oct. 15 — Ingham County attorneys have weighed in: It’s OK for members of the county’s Democratic Caucus to  discuss partisan politics at county-facilitated public meetings.

County Commissioner Mark Grebner denied any wrongdoing this month after he was accused of crossing multiple county ethics policies and state campaign finance laws by requesting campaign contributions for a Democratic challenger to defeat one of his Republican colleagues.

And a formal opinion released this week by the Commission's attorneys appears to vindicate Grebner altogether, dismissing initial concerns raised by County Clerk Barb Byrum this month.

“This is in response to your request for an opinion on whether any law prohibits the Democratic caucus from briefly discussing politics at meetings held at the Ingham County Courthouse or virtually via Zoom. The short answer is no,” attorneys told Board Chairman Bryan Crenshaw.

The Commission’s Democratic Caucus met late last month for a virtual meeting “in which donations to a specific candidate and campaign operations were discussed during public meetings, using County resources,” according to a warning letter sent out by Byrum.

It was a specific comment Grebner that triggered her concerns:

“The time to donate to a campaign is one that’s on the edge of winning,” Grebner said. “And the only one that falls into that category in the whole county is Brandon Currin, who is a real prospect to knock off Randy Maiville. So, if the caucus wanted to, a little bit of money there would go a long way. A few hundred more pieces of mail might actually elect him.”

Currin, a Democrat, is challenging Maiville, a Republican, for a third term this November representing Ingham County's 6th District, a mostly rural (and Republican-leaning) expanse near Holt and Mason. Grebner also works for a firm that has a consulting contract with Currin.

Byrum questioned the conversation, noting that campaign-related discussions — especially those that center on donations — are possibly illegal when they use taxpayer-funded resources. And since the meeting used county technology and county staff, Byrum labeled it a “red flag.”

County attorneys, however, labeled political discussions a “part of normal business of a party caucus.” A dilemma only arises because the caucus, with its Commission majority, is subject to the Open Meetings Act, pushing the meetings into the public and requiring minutes be taken.

A “brief discussion of political issues,” like Grebner’s brief comment, however, was labeled as a “de minimis” use of resources — essentially too trivial or minor to merit any legal consideration.

“As long as the discussions of political issues are for a short portion of any meeting, the value of any resources used would be ascertainable (e.g. Zoom subscriptions, lights, heat, etc.) because substantially similar resources would be used when no political discussions occur,” officials said.

Given the quorum of commissioners on the caucus, board members don’t have an easy way to meet elsewhere without skirting public participation requirements anyway, attorneys noted. And while the Michigan Campaign Finance Act generally prohibits the use of public resources to advocate for or against a candidate, it doesn’t necessarily prohibit Grebner’s recent suggestion.

“The prohibitions on the use of public expenditures and contributions under this legislation are very broad; however, the general prohibition in Sec. 57 does not apply to the expression of views by an elected or appointed official who has policy making responsibilities,” attorneys said.

Grebner contended his “suggestion” to send donations to Currin’s political campaign was a legal one. He sharply criticized Byrum for alleging otherwise and argued that his First Amendment rights trump any state or local statutes regarding political discussions at open meetings — especially within Caucus meetings, which are exclusively designed to promote partisan ideals.

“It’s unconstitutional on its face to require a political body not to discuss politics,” Grebner told City Pulse earlier this month. “The caucus only exists as a partisan body. Its goal is to elect people to office. The law cannot prohibit that political discussion, nor can it ban political organizing.”

Attorneys also noted that the First Amendment “makes it clear that public officials are entitled to express their views on policy issues” and that public officials, like Grebner, have “an obligation to take position on controversial political questions so that constituents are fully informed.”

“The occasional, incidental use of public resources to communicate with a constituent or media on a ballot question falls within this exception, as there are no resources devoted to an effort to assist or oppose the qualification, passage or defeat of the question,” county attorneys added.

Byrum, for her part, said she disagrees with the recent opinion. She noted, however, that there will still be no consequences for the allegations because no reports of any alleged wrongdoing have been filed with her office or to state election officials for a more in-depth investigation.

And even if it did, the recent opinion suggests that Grebner was in the legal clear regardless.

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