Wayne State University isn't bound by the state's Open Meeting Act and a lawsuit arguing a meeting held by four board members is invalid and should be tossed out, those board members and the university argued in a recent court filing.

The filing is the latest salvo in an ongoing war between Wayne State board members, who are using various issues around the medical school to try to lock down control of the larger university for their side.

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Four board members have sued the other four board members, alleging a meeting held at the end of the June was illegal and all decisions made in the meeting, including renting property for a physicians group tied to the medical school and a tuition increase, should be invalidated.

The suit alleges the board didn't have a quorum to meet. The board members being sued argue they did, because they counted Wayne State President Roy Wilson, an ex-officio member of the board who can't vote, in its quorum count. The suit also alleges the board violated the state's Open Meetings Act.

There was no violation, largely because the law doesn't apply to Wayne State, the university and board members sympathetic to Wilson argued in its court filing. The university is being represented by a Detroit law firm that includes former longtime Wayne State board member Eugene Driker. Driker is listed as one of three lawyers on the filing.

In making its argument, Wayne State relies on several court rulings, including a recent one involving the Free Press suing the University of Michigan, that say the universities aren't subject to the Open Meetings Act because the universities are on the same level in the state Constitution as the state Legislature. Making the schools subject to the Open Meetings Act would, in effect, allow the Legislature to rule the universities, something the Constitution forbids.

"With respect to WSU Board and related meetings, the Governors would not be able to engage in free and frank exchanges and communications," the university said. "Genuine discussion and differences of opinion would be chilled. This would interfere greatly with the Board's handling of the functions, operations, and supervision of the university. Applying the OMA to WSU would infringe on WSU's constitutional power to supervise the institution and its educational and financial autonomy. That is literally a harm of constitutional magnitude."

The filing seeking to get rid of the lawsuit goes on to say the board members who are suing are well acquainted with the board's practice to meet out of the public eye. It includes a list of about 10 different occasions where the board held discussions and took straw votes on property purchases and other matters in closed-door sessions.

The suit centers on a late June board meeting, when half the board didn't show up in an attempt to stop the leasing of a building for a new pediatrician's physicians group. The other half of the board had a legal opinion saying Wilson should be counted when trying to get to a quorum.

Those who were at the board meeting — and are being sued — are Bryan Barnhill, Kim Trent, Mark Gaffney and Marilyn Kelly. The four board members who weren't there and are suing are Michael Busuito, Sandra Hughes O'Brien, Anil Kumar and Dana Thompson.

The filing also claims there is no harm created by the meeting, and the suit is unfounded.

"Plaintiffs' self-inflicted imaginary harm is due to their ploy to get their way and permit no

other outcome at a Board meeting. Their gamble did not work. Any harm they argue to them, of which there is none in reality, pales greatly in comparison to the tangible harm of an injunction to WSU: delaying the implementation of very time sensitive tuition and property decisions that need to be acted upon now for critical university operations and functions; and applying the OMA for meetings going forward to an institution to which, under the Michigan Constitution, the OMA clearly does not apply. An injunction here would also wrongly and unlawfully reward plaintiffs for their conduct of boycotting a meeting, rather than performing their functions as Board members at such a meeting."

Contact David Jesse: 313-222-8851 or djesse@freepress.com. Follow him on Twitter: @reporterdavidj