The Mackinac Center Legal Foundation sued 10 Kent County school districts and the Kent County Education Association to remove illegal contract language that states that the school districts will not privatize non-instructional functions. The suit was brought on behalf of five Kent County taxpayers.
CASE UPDATE: The case was dismissed, but many of the districts changed the challenged collective bargaining language in their next contracts.
The current collective bargaining agreements negotiated between the Kent County Education Association and 10 Kent County school districts contain a “no-privatization” clause. Such a clause violates a 1994 Michigan law that was intended to give school boards maximum flexibility in setting their district budgets. The Mackinac Center Legal Foundation is suing to challenge the inclusion of the illegal clause.
According the Michigan School Privatization Survey 2010 published by the Mackinac Center, nearly half of Michigan school districts contract out with private companies to provide support services, such as food, custodial and transportation, saving the districts millions of dollars. In 1994, the Legislature decided that the best way to provide school districts with the necessary flexibility to explore these savings was to prohibit the discussion of privatization during contract negotiations. MCL 423.215(3) of Michigan’s Public Employment Relations Act enshrines privatization as an activity that cannot be bargained away. The Michigan Supreme Court interpreted this law to mean that no collective bargaining agreement can include a provision banning privatization.
This case arises from a blatant violation of MCL 423.215(3). In March 2010, Kent Intermediate School District and nine Kent County school districts (Byron Center, Comstock Park, Godfrey Lee, Godwin Heights, Grandville, Kenowa Hills, Lowell, Northview and Rockford) entered into a one-year agreement with the Kent County Education Association and its various local affiliates. This agreement contained a provision stating that no privatization of KCEA’s or its affiliates’ services would occur during the agreement. The provision states: “All districts agree not to privatize any KCEA/MEA unionized services for the life of this agreement.”
In a March 19 Michigan Capitol Confidential article, Kent ISD’s legal counsel, Coni Sullivan, admitted that the privatization provision is illegal:
Coni Sullivan, assistant superintendent for human resources and legal services for Kent ISD, said both the school districts and bargaining units understood that the no-privatization clause was unenforceable.
“We can put that provision in there, but it is not enforceable,” Sullivan said. “The districts knew it was unenforceable. The MEA knew it was unenforceable.”
Sullivan said it was inserted “in the spirit of collaboration.”
In a recent issue of its “MEA Voices” newsletter, the Michigan Education Association highlighted the “unorthodox” contract, which it says included concessions in return for “promises the districts will not outsource the jobs of support professionals.”
The no-privatization clause expires with the rest of the agreement in March 2011. Since the unions and the school districts are clearly violating PERA, the MCLF’s goal is to challenge the no-privatization clause. While this was supposed to be a limited, one-year agreement, there will be strong economic and political pressure to include this in later contracts. Absent a public or legal challenge, this temporary agreement will likely become permanent, hamstringing future boards and harming students.
Our clients — Chris Jurrians, Lila Deline, Thomas Norton, Rina Sala-Baker and Gail Schuiling — were five Kent County taxpayers. They sued Kent public schools for misusing taxpayer money by illegally prohibiting savings options. By agreeing to this illegal arrangement, the combined districts are closing the door on an estimated $6.9 million in savings (using state per-pupil averages). At a time when schools are cutting programs due to budget shortfalls, privatization offers tangible benefits.
The case as dismissed for a lack of standing by the Kent County Circuit Court, and the Mackinac Center Legal Foundation ultimately decided not to appeal the ruling. However in the following years many of the districts changed their collective bargaining language to more closely resemble the Mackinac Center Legal Foundation’s ideal language.