The list of PERA’s prohibited subjects of public school collective bargaining is found in MCL § 423.215(3)(a)-(p). These limitations on the scope of bargaining were meant to ensure that negotiations did not stray into core school management areas and broader policy issues. Examples of prohibited subjects of bargaining include:
- Decisions regarding “who is or will be the policyholder of an employee group insurance benefit” (meant to address the issue of the costs associated with the Michigan Education Special Services Association, as described earlier)
- “Establishment of the starting day for the school year and the amount of pupil contact time required to receive full state school aid”
- Whether “to provide or allow interdistrict or intradistrict open enrollment opportunity in a school district”
- Whether “to contract with a third party for [one] or more noninstructional support services”
- “The use of volunteers in providing services at its schools”
- The “use and staffing of experimental or pilot programs and decisions concerning use of technology to deliver educational programs and services”
- Decisions “regarding teacher placement” (i.e., teaching assignments)
- “[P]olicies regarding personnel decisions when conducting a staffing or program reduction” (meant to end the “last-in-first-out” policies discussed above)
- “[D]ecisions about how an employee performance evaluation is used to determine performance-based compensation” (meant to permit merit pay)
- Decisions about “the notification to parents and legal guardians” when a student is placed with an ineffective teacher.
There is clear evidence that the items above are plausible targets of nullification under Proposal 2. Earlier this year, the Michigan Education Association distributed to its collective bargaining negotiators a three-page list of laws vulnerable under Proposal 2, so that the negotiators could target these laws during contract negotiations after November. The MEA’s list includes some of the PERA provisions set out above (see Appendix B for a copy of the memo). That list also includes several of the laws discussed below.
Others have concluded a broad range of laws would be open to challenge under Proposal 2. In a July 20, 2012, memo to Gov. Rick Snyder, Michigan Attorney General Bill Schuette wrote that Proposal 2 “represents breathtaking changes to governmental branches’ and units’ prerogative to perform their constitutional function, establish their goals and objectives, determine budgets, compensation, retirement, medical or other benefits, and control terms and conditions of public employment.” The attorney general estimated that Proposal 2 could abrogate in whole or in part more than 170 existing Michigan laws.”
Regardless of what the exact number of vulnerable laws is, the laws below are clearly among those susceptible to challenge.