June 5, 2016
With the Flint Water Crisis and Detroit Public School’s potential bankruptcy looming large, there was a rush to pass a state budget before Memorial Day so that many Legislators and lobbyists could attend the Detroit Regional Chamber of Commerce annual conference at the Grand Hotel on Mackinac Island.
Threat to Civil Service
Speaker of the House Kevin Cotter (R-Mt. Pleasant) is sponsoring a proposed constitutional amendment to make it easier to discipline or dismiss civil servants. House Joint Resolution MM was introduced on May 19 to amend Article IV, Section 48, and Article XI, Section 5 of the Michigan Constitution.
During the Flint Water Crisis, the Governor and others have attempted to shift the blame for the poisoned water onto civil servants or federal EPA officials and away from the Governor, his immediate staff, emergency managers, some gubernatorial appointees, or others with a plausible connection to the chain of decision-making. The Governor has forced the resignation of the DEQ Director and several of his own appointees as well as reorganized his immediate Executive Office staff. The Department of Environmental Quality accepted one classified civil servant’s resignation, terminated another without criminal charges being filed, and suspended two others without pay after criminal charges were filed. More culpable parties may be identified as a result of ongoing investigations.
Just Cause Modified — The proposed amendment and its tie-barred implementing legislation, House Bill 5677, would redefine the “just cause” standard for discipline as “conduct that directly and negatively impacts the department’s ability to accomplish its statutory duties in a fair, timely, equitable, and transparent manner.”
The “just cause” standard has been used in human resources and labor relations law for over 50 years and thus has a long record of court and arbitrator decisions defining the concept. The proposed new definition is undefined, vague and very subjective. It also would not address off-duty misconduct. It could be easily used by a political appointee to discipline or dismiss civil servants associated with past administrations or unpopular policies or programs. Additionally, the proposal grants limited due process rights and requires the grievant and department to equally share the cost of the proposed one-step grievance procedure. Currently the grievance process is at no cost to non-bargainers if they use a Civil Service hearing officer.
Hearing — At the hearing on the two measures in the House Workforce and Talent Development Committee on May 26, Charles Blockett Jr., a former member of the Civil Service Commission, former Bureau Director in the Department of Civil Service, and international human resources consultant, testified against them, saying the proposals are legislative overreach that would weaken Civil Service and lead to bad government. Former State Rep. Nick Ciaramitaro, now legislative director with AFSCME, testified that the proposals were “ thinly veiled attempts to deflect blame for decisions made by policymakers in numerous areas onto those who have to implement them.”
Michigan SERA opposed the legislation and I testified against it on our behalf.
CSC Statement — In a joint statement by the Civil Service Commission, it said the assumption that it is difficult to dismiss classified state employees is false: terminations are up 45% from the 1990s, though the government workforce is 30% smaller. The CSC statement said “The new grievance process also does not meet federal constitutional due-process requirements and would be subject to challenges on several different grounds.”
In a statement concerning the proposals printed by the Detroit Free Press, Michigan Civil Service Commission Chair Tom Wardrop stated that “During my time on the Michigan Civil Service Commission [since 2011], 2,447 employees have been discharged. The “ almost impossible” is happening almost 300 times a year. And, these numbers likely understate dismissals because they do not include resignations in lieu of discharge.” He also said the implication that civil service rules required waiting until after criminal investigations to suspend or discharge an employee is false.
Terminations increasing — A Lansing State Journal study also found that terminations are actually increasing. Reports from the Civil Service Commission show Gov. Rick Snyder’s administration fired nearly 1,600 employees during his first five years in office, compared to nearly 1,200 fired under Gov. Jennifer Granholm during her last five years. In the budget year that ended September 30, 2015, 336 workers were fired, compared to 212 in Fiscal Year 2006.
More state workers have also quit, waived their right to be recalled from layoff and retired under Snyder, giving Governor Snyder an average employee turnover rate nearly twice that of his predecessor, the LSJ reported. Some employees resign or retire in lieu of discipline, though the commission doesn’t track that figure.
Process — HJR MM requires 2/3 vote in each house of the legislature before it could be submitted to the voters in November. It would need 73 votes in the House, meaning all Republicans and 10 Democrats would need to approve it. In the Senate, Republicans would not need any Democratic votes since they have a 2/3 majority there.
Effect — The effect of HJR MM and HB 5677 is to shift the power and authority to regulate the disciplinary process from the Civil Service Commission to the Legislature, using the allegations against some civil servants associated with the Flint Water Crisis as an excuse. Capturing the grievance system would be an important first step in dismantling the merit system and moving back to a patronage system for employee selection and retention.
Seniors Driver License Renewal
An initial hearing was held recently on House Bill 5171 sponsored by State Rep. Ben Glardon (R-Owosso) that would require drivers 75 years of age or older to renew their driver’s license in person at a Secretary of State branch office rather than by mail or on-line. The effect would be to give the 75+ person a 5-minute vision test every 4 years instead of every 8 years, according to the bill sponsor. At the hearing, there were many anecdotes about bad or sometimes fatal driving by seniors as well as the angst felt by the baby boomer committee members who have to deal with taking away their elderly parent’s vehicle keys.
The Secretary of State’s office opposed the bill saying a vision test isn’t the best indicator — there is also cognitive ability. There is a mechanism in place to flag problem drivers for traffic safety division follow-up, the SOS staffer said. AARP did not testify but opposed the bill.
Non-bargainers Lose 3 Percent Raise
The Michigan Supreme Court recently backed the Civil Service Commission’s decision to rescind a 3 percent pay increase for 15,000 non-exclusively represented employees. In 2008 the Office of the State Employer and the Michigan Association of Governmental Employees agreed to a 1 percent raise in 2009-10 and a 3 percent raise in 2010-2011. This was approved by the Civil Service Commission. Due to the Great Recession, the OSE asked the CSC to rescind the 3 percent raise and it agreed.
Although MAGE won in the trial court, the MSC reversed unanimously saying “ The Civil Service Commission has ‘plenary and absolute‘ authority to set rates of compensation and to determine the procedures by which it makes those compensation decisions.”
Detroit Public School Crisis
The House met from noon until 10 p.m. on June 2 to gain the 55 votes it needed to pass a revised second plan to help the Detroit Public Schools avoid bankruptcy. The Governor and Senate had agreed upon a bi-partisan plan last month. No Detroit area Democrats voted for the revised House plan. Eight Republicans joined all 45 Democrats in opposing the main bill, HB 5384.
The plan includes $150 million in transition money for a newly-created school district and $617 million to help pay down the DPS debt. The new House plan also approved a school board election for this November, but retained allowing non-certified teachers to be hired.
The new plan permits only $25 million of the transition costs to be used for building improvements even though the Department of Treasury identified the need as $65 million. However it was an overall improvement from the earlier House plan that would have provided only $33 million total for transition costs.
The House did not include a Detroit Education Commission that was in the Senate plan, and instead includes an advisory board that would produce a report on where schools are needed in the city and on a potential citywide transportation plan for students.
Flint Water Crisis Update
Flint Mayor Karen Weaver told the Detroit Regional Chamber Mackinac Policy Conference that the city has identified about 15,000 water service lines that will need to be replaced. And as the lines are replaced, she said, trust among city residents will begin to grow again. But she emphasized that Flint residents need economic development and jobs, both now and in the future.
Budget help — In an interview with MIRS, Lt. Gov. Brian Calley said he expects the state will pay to remove all of the lead service lines and most of the galvanized lines out of Flint at a cost of $27 million this year.
The administration estimates there are less than 10,000 lead service lines in Flint and an unknown number of galvanized pipes leading to homes that have soaked up the lead collected from the lead pipes preceding it. Virginia Tech University professor Marc Edwards has recommended flushing the lines first of lead debris and coating them with special chemicals so more lead doesn’t leach into the water when they are disturbed. In Washington D.C., city officials faced a similar problem and began removing pipes out of the ground without coating them first. The result was that lead levels went up for homeowners, not down, Calley said.
To encourage Flint residents to run their water faucets daily to better circulate corrosion control treatment through the city’s water service lines, the state announced it will pay for water usage for the whole month of May.
Investigation snafu — The Flint Water Crisis has prompted many investigations and probes. Now it seems some of them are impeding the others. At the request of Michigan Attorney General Bill Schuette and Genesee County Prosecutor David Leyton, the Auditor General will stop its investigation of the Department of Health and Human Services. U.S. Attorney Barbara McQuade has also criticized the Michigan State Police’s investigation of the Department of Environmental Quality as well.
The three law enforcement officials said in separate letters to the Governor that state employees were being told their jobs were on the line if they did not participate in the investigation. Such testimony could be treated as compelled testimony and inadmissible in court.
In the report of the Flint Water Task Force appointed by the Governor and reported by the Detroit News, Chief Deputy Director of DEQ Jim Sygo stated in an interview with the Michigan State Police in March 2016 that the two state employees fired or punished for their roles in the Flint water crisis, Lianne Smith and Mike Prysby, were “thrown under the bus,” proper disciplinary procedures were not followed, and the discipline was politically motivated.
Child Lead Poisoning Prevention Board — Lt. Governor Brian Calley will chair a new statewide 12-member board created in Executive Order 2016-9 charged with finding ways to eliminate childhood lead poisoning in the state. The board will include experts in the prevention and mitigation of child lead poisoning, and may include representatives from pediatric hospitals, local government, education, nonprofit and health agencies. Ballot Proposals
Initiatives — Of 12 initiative or constitutional amendment petitions approved by the Board of State Canvassers, only one has submitted petitions. The Michigan Comprehensive Cannabis Law Reform Committee turned in signatures in support of a proposed initiated law to create the Michigan Marihuana Legalization, Regulation, and Economic Stimulus Act. MI Legalize, the group behind the measure, said it had filed enough signatures to make the ballot, but that will only be true if the Bureau of Elections accepts the group’s effort to resurrect stale signatures over 180 days old.
All the other active petition drives to repeal the prevailing wage law, establish paid sick leave requirements, and ban fracking have suspended their efforts although they all have until July 11 to submit petitions.
Constitutional Amendments — In a surprise move, the Michigan House passed 107 – 1 a proposed Constitutional amendment, House Joint Resolution N, to amend Article I, Section 11 to require the government to obtain a search warrant in order to access a person’s electronic data or communication.
Currently, Section 11 protects against unreasonable searches and seizures by the government. A warrant cannot be issued to search a place or seize a person or things without describing them and it must show probable cause, supported by oath or affirmation to a court.
The House Judiciary Committee held a hearing on House Joint Resolution MM to add the word “sex” to Michigan’s equal protection clause in Article I, Section 2. No vote was taken.
Snyder Recall — Rev. David Alexander Bullock of Detroit, head of the Committee to Recall Governor Snyder, announced recently that the campaign is extending its petition drive by three weeks to gather the necessary 789,133 valid voter signatures in a 60-day window period. Campaign finance records show the Snyder recall committee had raised just $925 through April 25 and spent $770 of that on petition printing and supplies. The campaign has relied on volunteers to collect signatures and also provided a petition download option on its www.StopSnyder.com website. Groups that have placed initiated legislation or referendums on the statewide ballot — efforts that require fewer signatures gathered in triple the time as a recall— often spend in excess of $1 million and hire petition circulators.
Money in Michigan Politics
The Michigan Campaign Finance Network recently reported that Michigan’s largest political action committees are raising record amounts for a presidential election year, up 17 percent over 2012. The top 150 PACs raised $26 million as of April 20, the most recent reporting period.
The top fundraisers among the traditional PACs included Blue Cross Blue Shield of Michigan ($796,808), the Realtors ($661,174) and the Michigan Beer and Wine Wholesalers ($553,640).
The number of Super PACs has also increased from eight in 2014 to 14 this year, with the largest Super PACS being Michigan Pipe Trades Association Independent Expenditure Committee ($461,157), Business Leaders for Michigan ($440,000) and the Detroit Regional Chamber’s Powering the Economy Super ($434,014).
This year the focus of state PACs will primarily be on the Michigan House races as Democrats attempt to take control of the House by regaining at least nine of the 110 seats and Republicans seek to defend their majority. Currently there are 63 Republicans and 46 Democrats with one vacant seat. The Michigan Senate is not up for election this year.
Editor’s note: Mary Pollock is the Lansing SERA Chapter and SERA Council’s Legislative Representative. She may be contacted at 1200 Prescott Drive, East Lansing, MI 48823-2446; Phone 517-351-7292; E-mail email@example.com.
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