This article originally appeared in the April 2020 edition of Michigan Counties.

Name: Sarah Lightner    

District/counties: 65^th/Parts of Jackson, Eaton and Lenawee counties

Committees: Appropriations Committee; Appropriations Subcommittees on General Government (vice chair), Judiciary (vice chair), Corrections and LARA/DIFS

Term #: 1^st

Previous public service: Jackson County commissioner, 6 years

What is the most pressing issue facing Michigan now?

 With the outbreak of COVID-19, public health and safety is the no. 1 issue that we’re currently facing.

Based on your experience, how important are counties to the effective delivery of public services?

They have a unique understanding of their communities, and they just need the tools provided to them at the local level along with adequate funding to continue providing essential services. For example, counties provide numerous health service and emergency management services to their particular area, run health departments, and do tons of community-specific programming that is unique to each municipality within their boundaries.  They are the front lines in providing free, fair, and safe elections, food and water security, and of course collaborating with local hospitals and the health officer to provide service for our health care needs.

Counties also have other priorities that maintain healthy communities through parks departments, maintaining and building infrastructure and roads, provide for public safety through the Sheriff Departments and preserving justice through its court system.

You are one of the sponsors of the legislation that would lengthen county commissioner terms to four years. Why do you think that is a priority?

As a former county commissioner, I think it’s very important to gain some institutional knowledge that helps you do your job well.  It also makes sense to align county commissioners with other county elected officials that already serve four-year terms, such as the Sheriff, Prosecutor, Clerk, Register of Deeds and Treasurer.  I had a great relationship with my fellow public servants, but with turnover every 2 years, there isn’t that ebb and flow of government when one piece of the puzzle is taken out every two years. It makes sense to have time to build a rapport and camaraderie, and it just makes good sense to have all the county elected officials be on four-year terms.

You also introduced House Bill 5488, which would extend the sunset allowing counties to impose reasonable court costs to October 1, 2023, which MAC supports. Additionally, the Trial Court Funding Commission released its recommended reforms at the end of 2019. What is your short-term, or long-term, priority from those recommendations?

The speaker has named me as a co-chair for our work group on trial court funding.  It is one of my priorities to work with all the stakeholders in finally determining a real long-term solution to fund our courts. This is why I sponsored the bill to extend the sunset, but I also have a bill to implement part of one of the commission’s recommendations to bring judicial salaries under the state umbrella.  This shows good faith to our judiciary that this is a priority and that we will take under advisement the work that has been done in prior years to actually put this on the agenda this term and in future terms.  I am in a unique position, as I have personally been involved with these issues through serving as county commissioner, chair of Judiciary for MAC and serving under Governor Snyder as an appointee to a state commission. I have been utilizing the relationships I have built to try to get input on this and have an aggressive timeline to actually write several new trial court funding mechanisms into law.

House Bills 5582-88 were recently introduced. The bills would phase out the sales tax on gasoline at the pump and replace it with an excise tax with revenues going to local roads which would ultimately leave a $780 million hole in the General Fund. Do you worry that statutory revenue sharing to counties could decrease as a result of this proposal?

I think this is smart policy.  As you know, Michigan was one of the few states to have a sales tax on gasoline, and that sales tax was not directed toward our roads.  This puts money directly into the budgets of county and local road commissions for roads, which is what we have all been talking about for the last several years.  I don’t see a problem with it affecting county revenue sharing. The state has a duty to ensure proper funding for our locals; however, the formula for that is outdated as well, and I would still like to see reform there. As long as I am in the Legislature, I will continue to work hard to keep counties adequately funded to perform their duties.

By Barb Byrum/Ingham County Clerk

This article originally appeared in the April 2020 edition of Michigan Counties.

In March, Secretary of State Jocelyn Benson said her office would mail an application for an absent voter ballot to all qualified registered voters who have an election on May 5. Michigan law requires that voters submit a written request for an absent voter ballot. Many city and township clerks now maintain a Permanent Absent Voter (AV) List, where they mail an application for an absent voter ballot to those who have signed up for the list before each election. For those voters that are not already on the Permanent AV List, they can certainly still vote by mail in any election they choose, they would just need to find the request form for that specific election.

 

Typically, May special elections see lower turnout, so perhaps if voters receive an application for an absent voter ballot, more will participate. Benson has argued that by encouraging absent voter participation, her office is helping promote public health and keeping democracy protected. During the March 10 presidential primary election, we learned what a significant increase in no-reason absentee voting, as well as same-day voter registration, looks like for those running elections.

 

When holding an election by mail, which the May special election essentially will be, arguably on a smaller scale than the August 2020 election will be, local clerks are going to need additional resources.

 

The need to start processing ballots the day before the election is heightened, when almost all ballots will be absent voter ballots. The current proposed legislation does not allow for the early tabulation of ballots. The current proposal allows for the processing of ballots, which includes: Opening the outer envelope, while keeping the voted ballot still in the secrecy envelope and removing the ballot stub.

 

Also, some local clerks who have never had an absent voter counting board (AVCB), which is essentially a separate precinct set up for the sole purpose of processing absent voter ballots, are all of a sudden going to find themselves in need of this process. AVCBs are not necessarily difficult to carry out, but will require an extra supply of election inspectors and now, with the concerns about COVID-19, clerks will certainly see a decrease in staff. AVCBs also need their own tabulators that need to be tested and set up for this purpose. Coupled with the need to do significant mailings and data entry for those mailings before the election in a timely manner (tracking in the Qualified Voter File when absent voter ballot applications are received, absent voter ballots are mailed, absent voter ballots are received, etc.), clerks are going to have some new, perhaps even un-identified, opportunities to overcome.

 

Although voting by mail, or as us Michiganders know it, absent voting, seems like it protects everyone’s right to vote, there will still be a need for local clerks to have precincts open and their offices open for those individuals who need to go to the poll to vote or those that need to register to vote with their local clerk on Election Day.

 

Most of the above concerns will land on the shoulders of the local (city and township) clerks, but the County Clerks stand ready to assist in any way we can. Perhaps County Clerks can assist local clerks in coordinating AVCBs, lending extra equipment for AVCBs, or assisting with same-day voter registration in local clerks’ offices. Safe and secure elections are our primary goal and we look forward to continuing to serve the voters of Michigan in that capacity.

Barb Byrum is a board member for the Michigan Association of County Clerks.

By Christian K. Mullett/firm of Cohl, Stoker & Toskey, P.C.

This article originally appeared in the April 2020 edition of Michigan Counties.

Does the Freedom of Information Act, MCL 15.231, et seq. (“FOIA”), apply to public officials’ use of non-governmental email accounts?

In FOIA, it is the stated policy that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials. FOIA’s specific provisions require full disclosure of public records in the possession of a public body. However, these bright-line principles may be blurred when the public official uses a non-governmental email account to conduct government business. 

FOIA subjects all “public records” to possible disclosure unless specifically exempted by statute.  A “public record” is a writing that is prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. Under this broad definition, emails, text messages, social media posts, and even voice mails would be subject to disclosure under FOIA if made in the furtherance of government business.  In Competitive Enterprise Institute v. Office of Science and Technology Police 827 F.3d 145 (D.C. Cir. 2016), the U.S. Court of Appeals for the District of Columbia interpreted this very issue under the federal FOIA statute, wherein it opined:

[A]n agency always acts through its employees and officials.  If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them takes them out the door or because he is the head of the agency.

The Court further commented:

If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his department emails on an account in another domain, that purpose is hardly served … It would make as much sense to say that the department head could deprive requesters of hard-copy documents by leaving them in a file at his daughter’s house and them claiming they are under her control.   

Governmental communications on a private device or personal account should be retained by the government official if they constitute public records. When individual public employees act in their official capacity, they are transacting business of the public body.

However, in practice, the access to certain emails under FOIA is particularly daunting to municipalities when these communications are saved on personal devices and not under the governmental body’s possession or control.

The fact that a personal email account has been used to send or receive public records does not necessarily transform all communications sent or received on that account into public records that would be subject to FOIA. Similarly, social media communications should be retained by the public entity in the same manner as emails if they concern the function of government. This may be problematic in that certain social media platforms automatically delete content.  

While the FOIA law clearly favors disclosure, the Michigan Court of Appeals recently determined in Bisio v. The City of the Village of Clarkston (COA Docket 335422, July 3, 2018, lv granted) that if documents are held by agents of a public body such as a city attorney, the agent is not considered a public body that can be compelled under FOIA to release documents. The Court opined that the statute was clear, in that the definition of “public body” provided in MCL 15.232(d)(iii) does not include officers or employees acting on behalf of cities, townships and villages. In contrast, MCL 15.232(d)(i), which defines a “public body” relevant to the executive branch of government, does include officers and employees acting on behalf of the public body. 

The Bisio case is now before the Michigan Supreme Court and could be reversed, as the decision by the Court of Appeals appears to conflict with the intent of FOIA. Ultimately, time will tell if the Supreme Court opts to follow the Court of Appeals’ narrow interpretation and continue to blur the line between private and public communications, or will overturn Bisio to clarify that FOIA applies to records kept in the hands of municipal officers and employees, regardless of where and how they are kept.  Recently, the Supreme Court entertained oral argument on March 5, 2020, and will release its decision before the end of its current term on July 31, 2020.

One potential solution to provide clarity is to develop a county policy regarding the use (or prohibition) of private email to conduct government business.

Christian K. Mullett is an associate with the Lansing law firm of Cohl, Stoker & Toskey, P.C.

By Wylie Wong

In Michigan’s Muskegon County, some departments need 24/7 access to computers, applications and the IP-based phone system, including the Muskegon County Sheriff’s Office, the Muskegon County Juvenile Transition Center and the Muskegon County Wastewater Management System.

To improve uptime, the county recently upgraded its IT infrastructure and turned its primary and secondary data centers into an active-active environment. Now, if one data center goes down, the second site automatically continues IT operations. “We are a 24-hour operation. Downtime is not an option,” says Ivan Phillips, information systems director for the county.

Local governments are increasingly embracing active-active data center ­configurations to improve resiliency and bolster continuity, says Greg Schulz, founder and senior analyst at StorageIO, an IT consulting firm in Stillwater, Minn. Government agencies rely on ­critical applications such as 911 systems, and residents increasingly want anytime access to services, such as the ability to pay property taxes during off hours.

“More and more are doing active-active. It used to be for the large, high-profile organizations,” Schulz says. “There was a perception and belief that smaller organizations didn’t need it. But the reality today is that smaller organizations — whether they are small state agencies, counties or cities — are realizing that information access is time- sensitive, and that the risk and cost of not doing active-active outweighs the expense of doing it.”

Minimize downtime with active-active data centers 

Bad winter storms have the potential to knock out power in Muskegon County. And while the county uses uninterruptible power supplies and generators, its information systems department doesn’t want to take chances. It’s moving from an active-passive to an active-active data center model this spring.

With approval from the county board of commissioners, the IT staff replaced aging servers and storage equipment that were reaching capacity with new Cisco Unified Communications System servers, flash storage from Pure Storage, the latest VMware vSphere server virtualization software and VMware Horizon desktop virtualization software.

Each data center is now powered by 10 Cisco UCS B200 M5 blade servers and a Pure Storage X50R2 150-terabyte flash array, which provides enough capacity for growth for the next five years, Phillips says.

It’s converged infrastructure that’s pre-validated and configured to seamlessly work together, making it easier to deploy and manage, says Mark Hansen, the county’s information systems manager.

The county hosts about 150 virtual servers and about 600 virtual desktops for its employees. Nearly every county department relies on the IT infrastructure, including the county airport and a court system that is going electronic and paperless, Phillips says.

The county spent more on hardware to deploy the active-active configuration, but it’s worth it, Phillips says. In the past, a prolonged power outage would have forced the IT staff to manually bring applications up in the secondary data center.

Now, with Pure Storage software, data replicates from one data center to another while the county operates the virtual servers and desktops as a single stretched cluster, meaning they are load balanced, with half the virtual machines running in the main data center and the other half in the second data center, Hansen says.

If one data center goes down, VMware software will automatically migrate those VMs to the second data center. “If servers go down, our users will never know it. There will be no disruption in service, which is our goal,” Hansen says.

The active-active configuration also allows the IT staff to update software and firmware without causing downtime. “We can upgrade and do maintenance and keep operations running,” says Dave Majeski, the county’s system administrator. 

Wylie Wong is a freelance journalist who specializes in business, technology and sports. He is a regular contributor to the CDW family of technology magazines.

This article originally appeared at StateTech Magazine. It was reprinted with permission in the April 2020 edition of Michigan Counties.

MAC opens ‘Camp Counties’ for summer webinars

With in-person gatherings still discouraged, but the need to share information and best practices never more acute, MAC has responded with a new educational series for summer 2020: Camp Counties.

Replacing our traditional in-person Regional Summits, the webinars of Camp Counties are free to all employees of MAC member counties and designed to provide practical information and tips that can be put to immediate use. All webinars will start at 11 a.m. on their scheduled dates. The webinars will be recorded for post-event, on-demand viewing on our website.

“The five topics are designed to both provide something of an interest to members across the state and deliver practical information that can be put to immediate use as we all continue to navigate the COVID crisis,” said Stephan Currie, MAC’s executive director. “I’m also pleased that we are able to deliver so much to members at no additional costs to them or their counties.”

Major support for Camp Counties comes from Enbridge and Envirologic, with additional support from three of MAC’s sponsored programs: Blue Cross Blue Shield, Nationwide Retirement Solutions and Abilita.

For all the latest camp happenings, visit the Camp Counties page on the MAC website.

June 10: Benzie’s Broadband Journey and Funding Challenges Looking Forward

Click to register.

June 17: Planning and Winning Millage Elections in a COVID World

Click to register.

June 24: Using Uniform Fees to Boost Appeals in Criminal Cases

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July 8: How Will COVID Affect Community and Work Life in the Months Ahead?

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July 15: Basic Steps for Counties to Enhance Election Cybersecurity

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For additional details on each webinar, review the camp agenda flier.