News Story

Whitmer's 'Enhanced' Executive Order Penalties Appear Outside The Law And Constitution

State sidestepping state of emergency law by pulling sanctions from a different law

The state of Michigan may be violating a court ruling by issuing much larger fines than allowed for businesses that violate one of Gov. Gretchen Whitmer’s COVID-19 executive orders.

On Aug. 21, the state of Michigan announced it had cited six businesses for violations for “not taking the appropriate steps to protect employees and their communities from the spread of COVID-19.” A state agency issued a press release headlined, "State Issues COVID-19 Citations for Workplace Safety Violations, Urges Businesses to Protect Employees"

The violations were related to social distancing and face mask use, issues covered in Whitmer’s executive orders.

In June, the Court of Claims ruled that in seeking to increase penalties specified in her own executive orders, the governor's team were acting outside the law.

On behalf of builders and landscapers, the Mackinac Center Legal Foundation filed a lawsuit in May arguing that it violated the state constitution to increase the penalties beyond those specified in the same law authorizing emergency executive orders.

In Executive Order 97, Whitmer implemented “strict workplace safety measures” that increased penalties for executive order violations by businesses. The previous penalty was a 9-day jail sentence and $500 fine.

By transferring enforcement to the Michigan Occupational Safety and Health Administration (MIOSHA), the penalties (a three-year felony and a fine as much as $70,000) were increased to those authorized by a different law. The court ruled that the fines and penalties had to be limited to those specified in the law authorizing executive orders, which are misdemeanors subject to a $500 fine.

The Whitmer administration is trying to get around that court ruling by citing what it calls “general duty” clause under MIOSHA law.

The state said in a press release, “The MIOSHA ‘general duty’ clause requires an employer to provide a workplace that is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to the employee. A general duty clause citation carries a fine of up to $7,000.”

For example, the state cited a Speedway gas station in Waterford where employees were inadequately wearing face masks under the nose, and that was not providing face coverings to employees free of charge, among other violations. MIOSHA fined the gas station $6,300.

Under this interpretation, the penalties that would apply in these cases are those specified for actions that “cause or likely to cause, death or serious physical harm to the employee.”

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.

Analysis

Underfunded? Detroit Is State's 15th Best Funded Larger School District

Gets less from some sources and more from others

In 2018-19, the Detroit Public Schools Community District received $15,891 per pupil (including local, state and federal money), making its total funding the 15th highest among Michigan school districts that enroll 1,000 or more students.

The state average per student revenue for all 827 school districts and charter schools that year was $13,457 per pupil.

That means per-pupil funding at Detroit’s school district was 18% higher than the average Michigan school district.

Yet, there has been an ongoing effort in the media to make it appear Detroit’s school district is underfunded.

The latest example comes in the form of a Q&A between Crain’s Detroit Business and Detroit Public Schools Community District Superintendent Nikolai Vitti.

Here is the exchange in which Crain’s Senior Editor Chad Livengood asked Vitti about school funding:

“Livengood: I always look at Southfield as an example of this — a neighboring district to you, they get $11,300 per kid, you get less than $8,200 from the school aid formula and you are in competition (for students) with Southfield, I would imagine.

Vitti: Yeah, that's one of the better examples …”

Total revenue to Southfield Public School District of $17,352 per pupil in 2018-19 made it the fifth most highly funded Michigan school district of more than 1,000 students.

Pointing to a state “foundation allowance” that is just one of the revenue streams flowing into Michigan school districts, not total funding, Livengood said he “always” looks to compare Detroit to one of the state’s best-funded districts.

Southfield has a higher “foundation allowance” amount due to the complex formula created by a 1994 voter-approved school funding reform ballot measure called Proposal A. This created a system that raised-up the funding level of districts that collect less property tax without punishing a small group of so-called “hold harmless” districts that get more revenue from that source.

Ben DeGrow, the Mackinac Center for Public Policy director of education policy, described hold-harmless districts this way:

“Before Michigan adopted its current school funding system in 1994, school districts across the state heavily depended on local property taxes that led to wide funding disparities. Proposal A limited local districts’ ability to raise property taxes and created a broader pool of state tax funds that put districts on a more equal footing for per-pupil funding. The negotiations to create Proposal A included a deal that the highest-funded districts could be held harmless from having to cut their per-pupil allocation by being able to raise additional property taxes. Over the last 25 years, lawmakers have regularly increased the minimum foundation allowance at a faster rate, which has significantly closed the district funding gap. In 2019-20, three-fourths of the state’s 537 conventional districts and all of its 294 charter schools received the same foundation allowance of $8,111, while only 43 districts could still collect extra property taxes to receive more than the hold-harmless rate of $8,409.”

Local school property tax levies bring in less to the Detroit district because property in the city is worth less. So narrow comparisons of just this revenue stream between Detroit and the handful of districts with a very rich tax base can make Detroit school funding appear subpar.

Detroit schools are well funded because as a matter of deliberate policy they get a larger share of other revenue streams. The recent allocation of the federal COVID-19 aid to school districts illustrates this policy.

Southfield was approved for $1,384,613 of the state’s federal coronavirus money, or $240 per pupil. Detroit’s school district was approved for $85,120,566 of COVID-19 relief, or $1,707 per pupil.

That $1,467 per pupil funding gap is one of several where Detroit received more federal money than Southfield.

 

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.