Michigan’s most recent state constitution became effective in 1963, and one of its sections could be incorrectly used by opponents of merit pay to argue that merit pay is unconstitutional. Const 1963, art 11, § 6 states:
By ordinance or resolution of its governing body which shall not take effect until approved by a majority of the electors voting thereon, unless otherwise provided by charter, each county, township, city, village, school district and other governmental unit or authority may establish, modify or discontinue a merit system for its employees other than teachers under contract or tenure. The state civil service commission may on request furnish technical services to any such unit on a reimbursable basis.
Specifically, a question arises about the statement that a local government entity "may establish, modify or discontinue a merit system for its employees other than teachers under contract or tenure." Public school teachers would seem necessarily to be under contract or tenure, and some could argue the provision suggests that teachers cannot belong to a merit-pay system.
But thorough analysis shows this reading to be incorrect. The constitutional delegates merely sought to exempt teachers from a process that local governments could use to create "a merit system" — a term of art that the constitutional delegates used to denote a kind of civil service system. The delegates did not mean to prevent teachers from receiving merit pay.
When interpreting the constitution, Michigan courts look to the common understanding of the disputed provision. Lapeer Co Clerk v Lapeer Circuit Court, 469 Mich 146, 155 (2003). "Words must be given their ordinary meanings, and constitutional convention debates and the Address to the People, 2 Official Record, Constitutional Convention 1961, p 3355, are relevant, although not controlling." Id. at 156. In Studier v Michigan Public School Employees’ Board, 472 Mich 642 (2005), the Michigan Supreme Court stated, "the proper objective in consulting constitutional convention debates is not to discern the intent of the framers in proposing or supporting a specific provision, but to determine the intent of the ratifiers in adopting the provision." Id. at 656. The court explained:
The debates must be placed in perspective. They are individual expressions of concepts as the speakers perceive them (or make an effort to explain them). Although they are sometimes illuminating, affording a sense of direction, they are not decisive as to the intent of the general convention (or of the people) in adopting the measures.Therefore, we will turn to the committee debates only in the absence of guidance in the constitutional language ... or when we find in the debates a recurring thread of explanation binding together the whole of a constitutional concept.
What eventually became Article 11, § 6 began as Committee Proposal 76 at the 1961 Constitutional Convention.[*] Many local units of government had been frustrated by Legislative inaction or Legislative hostility to the creation of local civil service plans. 1 Official Record, Constitutional Convention of 1961 at 1752. The crux of that Committee Proposal 76 was to create a legislative bypass that would allow Michigan’s localities — more than 1,500 at the time — to individually determine if they wanted to create a civil service system. 1743-44.
Because the original proposal was unclear about which local units of government would be permitted to create a merit system, those units, including school districts, were spelled out in an amendment that was later adopted. Id. at 1749, 1765. That same amendment required that a majority of the voting electors of that unit of government approve the process at an election. Id.
Some delegates expressed concern about the inclusion of school districts, given that many teachers were covered by the Teacher Tenure Act and therefore did not need civil service laws. Id. at 1754. Other delegates responded that school districts should be included anyway because the districts employed more than just teachers. Id. at 1754-56.
The Teacher Tenure Act was enacted in 1937. 1937 PA 4. Then, as now, the law basically gave tenure to teachers who completed a probationary period, which is currently four years. The law made rehiring the most senior teacher with appropriate credentials a priority following any layoff.
During the constitutional convention, the Teacher Tenure Act applied only to districts wherein the electors had voted to implement the act. It was not until 1964 that the law was universally applied in Michigan. See 1937 PA 4 at art. VIII, § 1; 1964 PA 2, § 1.
Thus, during the constitutional convention, delegates raised questions about how any new civil service plans created by a school district would apply to districts whose teachers were governed by the tenure act as well. 1 Official Record, Constitutional Convention of 1961 at 1756-57.
The debates show that the concept of "merit system" was not meant to be synonymous with pay for performance, or "merit pay." Overwhelmingly, delegates were using "merit system" as a synonym for "civil service." A couple of other delegates thought the phrase might be confusing in the school context, however. For example, Delegate Faxon stated:
I am looking at the words "merit system" and the words "merit system" may have a definite meaning when you talk with regard to civil employees of cities, townships, counties and villages. But it has a different connotation when you discuss it in terms of schools and teachers. Now, if the intent of this is not to include teachers, then you would have to put in nonteaching personnel in school districts and I would have no objection to such an addition.
Id. at 1757. Later, Delegate Faxon continued:
My only worry is not in the teachers as far as the security of their job is concerned, but in the introduction of another idea which is that of a merit-pay system. Now, I don’t want to get into the whole merits of this, but it just seems to me that the use of the words here tends to give the impression that this is something that could be done just as one would adopt teacher tenure, or something of that sort. I, for one, choose not to get involved in that particular conflict.
Id. at 1758. In other words, Delegate Faxon was concerned that the constitutional provision as it stood at the time would imply to local voters that they could establish a merit-pay system for teachers by a popular vote.
The next speaker, Delegate Hanna, was the author of the disputed amendment that had included school districts. He indicated that "merit system" and "merit pay" meant different things:
Mr. Faxon, if I thought that I could slip into this constitution a provision for merit pay for teachers, I certainly would do it; but I am sure that a merit system merely means a classification based upon the job held and the length of time in grade and the qualification for that grade. And we have never applied the bonus or piecework system to the janitor or to the top executive in any civil service. I think your worries that "merit system" may go to the argument in the school system concerning merit pay are unreasonable.
Id. A request to strip school districts from the proposal failed. Id.
An amendment proposed later sought to change the words "merit system" to "civil service system." Id. at 1762-63. This request was made by two delegates who were concerned about potential confusion over the phrase "merit system" in relation to school districts. Id. at 1763.
Delegate Hanna then recommended a way to obviate the concern: "May I suggest that you withdraw your amendment and after the word ‘employees’ put ‘except teachers under contract or tenure’ so that it is clear that the civil service within school districts does not extend to teachers under contract or tenure." Id. Note that there was no indication that this compromise language was meant to foreclose merit pay in the schools. That language was offered to remove any confusion between a "merit system" and "merit pay" for teachers whenever a school district considered the implementation of a civil service system. (Note that the language also removed any conflict between a district’s civil service system and the Teachers’ Tenure Act by exempting teachers covered under the act from a civil service system.) One of the delegates concerned about the impact of the provision on the schools stated, "It seems clear that the intent of the amendment was not to encompass school teachers and the additional words here would take this into account." Id. This amendment was approved and made part of the proposal. Id at 1764.
The Address to the People after the convention set out the language of article 11, § 6, and then stated:
This is a new section permitting the establishment, modification or discontinuance of civil service merit systems in political subdivisions of the state, providing a majority of the voters of the unit affected approve. Teachers under contract or tenure are excluded in the provision. The state civil service commission is authorized to furnish technical services to local units on a reimbursable basis, if requested.
2 Official Record, Constitutional Convention of 1961 at 3405-06.
Thus, article 11, § 6, was enacted to create a shortcut, allowing localities to enact a civil service plan without any action on the part of the Michigan Legislature. Teachers were exempted from this shortcut because the delegates believed that the Teachers’ Tenure Act acted sufficiently like "a merit system" (i.e. like a civil service system), and the delegates wanted that act to take precedence. The fact that teachers were exempted from this civil service shortcut in no way indicated that the Legislature or local school districts were precluded from allowing pay for performance (that is, merit pay).
Since 1963, the Michigan Legislature has not behaved as if merit pay were impermissible. Michigan Public Act 289 of 1995 contains a provision that states, "A school district or intermediate school district may implement and maintain a method of compensation for its employees that is based on job performance and job accomplishments."
[*] The debates are titled “State of Michigan Constitutional Convention 1961 Official Record,” despite the fact that the convention extended from 1961 into 1962.