March Legislative Report by Todd Tennis
The Michigan Legislature is in the middle of a two-week spring recess. Over the last month, House and Senate Appropriation Subcommittees have been holding hearings to review Governor Snyder’s budget proposal. We are approximately half-way through the budget process and most subcommittees are preparing their initial reports for their individual departmental spending numbers.
The election season is also starting to heat up with frontrunners beginning to emerge in the statewide races. The Legislature will return to session on April 10 and will continue through May and possibly into June to complete the budget process.
MDOC in Process of Hiring 350 Food Service Workers
After Governor Snyder announced that the state would not be renewing the contract with current contractor Trinity to provide food service to Michigan prisons, the department has begun the process of hiring hundreds of food service workers. MDOC officials have admitted that it will be a challenge to recruit the necessary 350+ employees by the July 31 end of the Trinity contract. Moreover, the department is still getting some push back from some legislators over abandoning the privatization effort in the first place. The department has received some skepticism regarding staffing levels, with legislators noting that even the private contractors had chronic understaffing problems. MDOC spokespersons asserted that higher pay and benefits, along with having possibly permanent career path rather than being a contract worker for a private company, should help to attract and retain more staff.
Senator Jon Proos (R-St. Joseph), the chair of the Senate Appropriations Subcommittee on Corrections has been a fervent supporter of privatization schemes, both in the MDOC and in other areas of state government. He has been very skeptical since the Governor announced the end of private contracts for food service. Senator Proos has recently convened a work group to explore the possibility of expanding the use of prisoners to work in correctional prisons. The bulk of kitchen workers have traditionally been prisoners supervised by either state workers or, in recent years, private contractors. Senator Proos believes that even more of these jobs, most notably the Cook 7 classification, could also be done by prisoners. The department has expressed a willingness to explore all options relating to use of prison labor provided that safety and supervision is not infringed.
Legislature Examines Governmental Immunity in light of MSU Scandal
The history of what is colloquially known as “governmental immunity” dates back to jolly old England and a time when – per the law – the “king could do no wrong.” Today, state and federal laws set out broad protections for those in governmental service against civil litigation based on actions in furtherance of their governmental responsibilities. That may soon be changing in Michigan, at least as far as it pertains to issues of sexual assault.
The explosive outcome of the trial against former MSU doctor Larry Nassar uncovered numerous examples of possible negligence on behalf of Nassar’s supervisors, university staff and leadership. A large number of lawsuits have already been filed against the university alleging failures in supervision, hiring practices and other administrative responsibilities. These lawsuits are seeking damages in the hundreds of millions. Michigan State University has already filed to have these lawsuits dismissed based on governmental immunity laws. However, legislation that recently passed the Senate would strip those protections from MSU, and from every other public entity in Michigan.
Senate Bill 877 would expressly state that a “member, officer, employee or agent of a governmental agency, or a volunteer acting on behalf of a governmental agency who engages in sexual misconduct while in the course of employment or service or while acting on behalf of the governmental agency is not immune under this act from tort liability.” However, the bill goes beyond removing immunity from the perpetrator, but also strips immunity for the agency itself with the following language:
A governmental agency is not immune under this act from tort liability for sexual misconduct that a member, officer, employee, or agent of the governmental agency engages in during the course of employment or service or while acting on behalf of the governmental agency if either of the following applies:
(a) the governmental agency was negligent in the hiring, supervision, or training of the member, officer, employee, or agent.
(b) the governmental agency knew or should have known of the sexual misconduct and failed to report the sexual misconduct to an appropriate law enforcement agency.
Governmental immunity has never applied to criminal charges, only to civil claims. However, this would represent the first major weakening of governmental immunity in Michigan this century. MAGE members responsible for supervising, hiring and firing of employees could potentially expose the state to lawsuits should they be found to be negligent in the oversight of an employee who commits sexual misconduct.
The package of sexual assault legislation that includes SB 877 passed the Senate before the spring recess and will likely be taken up in the House soon after they return to session on April 10.
Criminal Liability in Flint Water Crisis could Expand
A spate of new activity in the investigations and prosecutions surrounding the Flint Water Crisis has hit Lansing over the last month. Investigators from the Attorney General’s office testified to a Senate committee that they are currently following “spin-off” investigations that relate to initial decisions to create a new water authority and leave the Detroit water system. Details were light, but the testimony hinted that new charges may be filed against as yet unknown defendants. The charges would likely relate to financial fraud according to the testimony.
Meanwhile, the preliminary exam against DHHS Directory Nick Lyon has entered its fifth month. Dr. Eden Wells, the state’s chief medical executive, has also been charged and her preliminary exam is likewise underway. Both Mr. Lyon’s and Dr. Wells’ defense rely on Virginia Tech professor Marc Edwards – a nationally recognized expert. Mr. Edwards testified that allegations against Mr. Lyon and Dr. Wells regarding an outbreak of Legionnaire’s Disease are misguided. Mr. Edwards claims that the blame for the outbreak falls more on McLaren Health Center, where the bulk of the disease was found. Mr. Edward’s testimony also pointed more of the blame at the Department of Environmental Quality and largely vindicated the efforts from the Department of Health and Human Services.
In another interesting development, Mr. Edwards not only attacked the reports of witness for the prosecution – Wayne State University Researcher Shawn McElmurry – he attacked Mr. McElmurry’s credentials themselves. In March, Edwards filed a licensing complaint against Mr. McElmurry claiming that McElmurry’s claims of previous work on the Flint Water Crisis were taken from the work product of another researcher. Mr. McElmurry has denied the allegation and the complaint is ongoing within the Department of Licensing and Regulatory Affairs.
Union Leave Ban Reported from Senate Committee
A bill seeking to prohibit unionized public employee unions from receiving paid union leave time was reported out of the Senate Education Committee on March 14 by a party-line vote. Senate Bill 796 would ban collective bargaining agreements with public employers from having clauses that allow for employer-paid union leave time. Public sector unions, as well as a large number of public employer organizations, have come out in opposition to the bill as unnecessary. Many public employers offer paid union leave so as to make it easier to resolve problems relating to discipline, grievances and contractual disputes in a timely manner. Proponents of the bill claim that unions themselves will pick up the tab for such work, but that is contradicted by unanimous voices from public employee unions who claim that instead the bill will merely result in less efficient labor-management negotiations taking place after normal business hours.
The bill is awaiting action in the full Senate.