Kent County Court Rules That Straightforward Provision of State Public Bargaining Law Is Essentially Unenforceable

‘The court’s decision should send the Michigan Legislature back to the drawing board,’ says Mackinac Center lawyer

For Immediate Release
Tuesday, March 1, 2011
Contact: Patrick Wright
Director, Mackinac Center Legal Foundation
Michael Jahr
Vice President for Communications
Mackinac Center for Public Policy

MIDLAND — In a ruling issued today, Kent County Circuit Court Judge James R. Redford held that five county taxpayers represented by the Mackinac Center Legal Foundation do not have standing to challenge a “no-privatization” clause inserted in the collective bargaining contracts in 10 Kent County school districts. The clause, which states, “All districts agree not to privatize any KCEA/MEA unionized services for the life of this agreement,” is a clear violation of the Michigan Public Employment Relations Act, which prohibits school districts and school employee unions from bargaining over “whether or not to contract with a third party for 1 or more noninstructional support services.”

“The judge appeared to recognize that the contract provision was illegal, since he stated that his ruling ‘should not be construed as approval’ of the language,” noted MCLF Director Patrick Wright. “But the court’s decision inevitably leaves enforcement of state law in the hands of the very parties that violated the law in the first place. The fox is now the only one watching the chicken coop.”

“The judge seemed frustrated — and rightly so — that lawmakers hadn’t explicitly provided a means of enforcing this law,” Wright added. “The court’s decision should send the Michigan Legislature back to the drawing board. Legislators should consider whether criminal and civil penalties for school board members and union negotiators would be appropriate in instances where these individuals violate the public trust by willfully bargaining over prohibited subjects.

“More fundamentally, state lawmakers should recognize that certain subjects were prohibited precisely because legislators believed that school districts were sometimes unable to defend the public interest when they bargained with school employee unions. If the districts cave in, as they did here, even when the law is clearly on their side, why should they be trusted to bargain with unions over other serious issues like salaries and benefits? It may be time for more sweeping changes in collective bargaining in local government.”

Wright and his clients will consider whether to appeal today’s ruling to the Michigan Court of Appeals.