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
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
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.
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
The Address to the
People after the convention set out the language of article 11, § 6, and then
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.