Commentary

Proposal 1 a Referendum on PA 4

(Editor’s Note: The following is excerpted and abridged from the text of a speech delivered by Michael LaFaive, director of the Morey Fiscal Policy Initiative for the Mackinac Center, to various groups around the state about the ballot proposals on the Nov. 6 ballot. We'll post one part each day this week explaining proposals 1 through 5.)

Proposal 1 on the ballot is a referendum to affirm or reject Public Act 4 of 2011. A "yes" vote keeps the law intact; a "no" vote nullifies it, reinstating the older emergency financial manager law.

The wording of this proposal — and thus whether to vote yes or no — is sowing the most confusion among all state ballot choices.

Public Act 4 is the emergency manager law. It permits the state to appoint managers to fix the finances of failed cities and school districts. The law grants more powers to EMs than did its predecessor, Public Act 72 of 1990. Among other powers, it gave EMs the power to tear up an unaffordable government union labor contract. In every case, these contracts were major contributors to the problems that made the EM law necessary.

This has made union bosses angry and frightened. In response, they backed a drive that put the law up for a popular vote.

Pontiac is one city where the new law appears to have worked. The EM there is Lou Schimmel, who has served as emergency financial manager for another city under the old law and also served as a court-appointed receiver for one city. Among the necessary changes in Pontiac that were made possible by PA 4?

  • Pontiac contracted out its police force to Oakland County and saved $2 million annually while increasing enforcement personnel in the city;
  • Pontiac contracted fire duties to Waterford Township and expects to save more than $3 million a year; and
  • The city consolidated 87 city health care plans to one; saving $5 million annually while still offering very generous benefits at a cost of $20,000 per employee.

One of the raps against this law is that it is "anti-democratic," but that is misleading.

First, a democratic body — the state legislature — passed this law as a response to the fiscal irresponsibility of local units. It is used only in extraordinary cases and is the exception not the rule.

Second, local units are subject to state laws and rules, including the requirement to balance their budgets. Locals do not give the state its power — the reverse is true. Thus, the state has some responsibility for local management when fiscal emergencies arise.

What opponents of Proposal 4 would really seem to prefer are state taxpayer bailouts, which seem to be a non-starter with taxpayers.

Emergency managers have new powers to come in, fix the problem and leave. It will help Michigan's local governments meet the promises they make to residents, workers, vendors and bondholders.

To read more about the Nov. 6 ballot proposals. Please visit www.miballot2012.org.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.

News Story

School District Allows Union, Employees To Exclude Material From FOIA Requests

Legal expert says they are breaking the law

Grandville Public Schools is breaking the law by agreeing to a union contract provision that allows teachers and their union to have a say about what is released in Freedom of Information Act requests, according to the Mackinac Center for Public Policy's legal expert.

The union contract states that the union and the employee can review the documents or files about a teacher and "exclude from release all materials that are untimely, inappropriate, or are excluded under state and federal laws."

The issue is that the contract includes the words, “untimely” and “inappropriate,” which are not covered under the FOIA law. That language is on page three of the union contract.

"This provision should never have been placed in a collective bargaining agreement," said Patrick Wright, senior legal analyst for the Mackinac Center. "FOIA makes it clear we are supposed to have access to public records, not what a teacher and a teacher's union thinks a person should see."

Grandville Superintendent Ronald Caniff cited the Bullard-Plawecki Employee Right to Know Act as to why he says the union contract clause is legal.

"Our definition of 'untimely' and 'inappropriate' is consistent with the language contained within the Bullard-Plawecki Employee Right to Know Act (Act 397 of 1978)," Caniff said in an email. "Under Section 7 of that Act (423.507), 'An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered in a legal action or arbitration to a party in that legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old.'  However, pursuant to other statutory provisions, we would not remove documentation if the employee engaged in what is considered 'unprofessional conduct' even if the violation occurred more than four years ago."

However, James Hohman, fiscal policy analyst for the Mackinac Center for Public Policy, said that statute says that the act can’t diminish FOIA. Basically, the act cited by Caniff cites a few select areas regarding disciplinary issues that do not necessarily have to be provided under the transparency law, but that decision is made by the administration — employees are not allowed to exclude material.

"it doesn't appear that the law allows an employee to discard anything in their record," Hohman said. "It allows them to review the information and, in conjunction with their employer, remove or correct any disagreements in the accuracy of a report.

"You can't use that law to limit FOIA," Hohman said.

Similar issues regarding FOIA requests could arise if Proposal 2 passes.The union-backed initiative deals specifically with collective bargaining and such clauses could be included to shield union contracts from the public's view.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.