University of Michigan board of regents special meeting (Feb. 21, 2012): The board and UM president Mary Sue Coleman met via conference call on Tuesday morning in a brief but contentious meeting that focused on Senate Bill 971. It’s a bill that would make explicit that graduate student research assistants (GSRAs) are not entitled to collective bargaining rights under Michigan’s Act 336 of 1947.
Ultimately, the board voted 6-2 to formally oppose the bill, which was to be considered later that morning at a senate committee hearing in Lansing. [The committee later in the day voted to recommend the bill for passage by the full senate.]
The board’s two Republican regents – Andrea Fischer Newman and Andrew Richner – dissented. It was a vote along the same party lines as action taken at the regents’ May 19, 2011 meeting, when the Democratic majority of the board passed a resolution supporting the right of GSRAs to determine whether to organize. Coleman, who chairs the regents’ meeting but is not a voting member, had spoken against the resolution prior to the May vote. At subsequent regents’ meetings, several students and faculty have spoke during public commentary in opposition to the board’s action.
Much of the Feb. 21 special meeting focused on whether the meeting itself was legal. It was convened by invoking a rarely used bylaw that allows either the president or three regents to call a special meeting for emergency action. However, the meeting was apparently not publicly noticed 18 hours in advance, as required by the Michigan Open Meetings Act.
The university’s general counsel, Sue Scarnecchia, was asked by some of the regents to weigh in on the legality of the meeting. She stated that the meeting had been called legally, based on her reading of the regental bylaw. She did not comment explicitly on how compliance with the bylaw might relate to conformance with the OMA.
Meeting Legality: Open Meetings Act vs. Regental Bylaw
The state’s Open Meetings Act states that notice of a special meeting for a public entity must be posted at least 18 hours in advance of the meeting. And a Michigan attorney general opinion issued by Frank Kelley in 1980 interprets that part of the OMA statute to require that the notice be accessible to the public continuously for the 18 hours preceding the meeting.
For the Feb. 21 special meeting of the regents, the media were notified via email at about 11 p.m. on Feb. 20, though the email did not indicate a topic for the meeting or reason for why it was being convened. Regents themselves had been notified of the meeting via an email from UM president Mary Sue Coleman at about 5 p.m. on Feb. 20. It’s not clear that the meeting was otherwise publicly noticed.
Coleman started the meeting by noting that it had been called to consider emergency action, as allowed by regental bylaw 1.01. The bylaw states: ”Emergency action may be taken by the board between meetings if and when any matter arises which, in the opinion of the president, or any three members of the board, requires official action by the board prior to the next meeting. An affirmative vote by telephone, email, or facsimile from five members is required for action.”
Immediately after Coleman called the session to order, regent Andrea Fischer Newman raised the question of the meeting’s legality. She said she didn’t understand how the regental bylaw applied under the Open Meetings Act, and read aloud the relevant sentence from the OMA:
“Nothing in this section shall bar a public body from meeting in emergency session in the event of a severe and imminent threat to the health, safety, or welfare of the public when 2/3 of the members serving on the body decide that delay would be detrimental to efforts to lessen or respond to the threat.”
She asked for an explanation about the need for this “emergency” session.
Board chair Denise Ilitch said it was her understanding that the university’s general counsel believed the meeting was being held legally. When Newman said she hadn’t seen an opinion to that effect, Ilitch replied that the counsel’s opinion had been given verbally. She told Newman that Newman’s objection had been noted.
Suellyn Scarnecchia, UM’s vice president and general counsel, was one of the few executives who were physically present in the Fleming administration building boardroom during the meeting. She reiterated Coleman’s statement that the meeting was convened as permitted under regental bylaw 1.01, and she read aloud the bylaw.
Newman asked how an emergency action is defined. That’s not part of the bylaw, Scarnecchia replied. The bylaw indicates that it’s based on the opinion of the president or three regents.
Andrew Richner asked who had requested the meeting. Coleman said she did not request the meeting, but that three members of the board had requested it. Ilitch said she’d received a phone call from Coleman asking to schedule the meeting, based on discussions that Coleman had with other regents.
One regent suggested that Newman and Richner had been the regents who requested the meeting. Newman responded by saying she had, in fact, wanted to publicly discuss the senate bill and take a position on it, but she assumed that it would be done in a way with sufficient advance notice and detail about the meeting’s purpose. This was not an emergency, she said, and “this is not that meeting.”
Ilitch noted that the senate government operations committee was holding a hearing on the bill later that morning, at 11 a.m. Newman replied that the bill had been introduced on Feb. 15, and that the regents had held their monthly meeting the following day, on Feb. 16. The bill is not moving to a vote today, she said. It’s simply a hearing.
Ilitch again stated that Newman’s concerns had been noted, and said she felt the meeting should move forward. Martin Taylor agreed, saying he believed the meeting was legal but that subsequent determinations can look at whether the meeting is legal or not.
Richner again asked who had requested the meeting – it hadn’t been him.
Larry Deitch replied that the president had told Deitch the meeting would be held. His understanding was that it needed to happen immediately because of the 11 a.m. senate hearing. He said he had previously asked for a discussion to take place at the regents’ regular Feb. 16 meeting, but he had received no response to that request.
Julia Darlow asked whether Scarnecchia was giving the board her legal opinion about the meeting’s legality. Scarnecchia said that based on the information she was given on Monday evening, the meeting is compliant with regental bylaw 1.01. It does require that the meeting be called by either the president or three regents, she said.
Darlow noted that regents received an email from Coleman on Monday evening, which Darlow took to mean that Coleman was calling the meeting. In that case, there’s no need for three regents to call it, she said, asking for confirmation from Scarnecchia. Yes, Scarnecchia said. If the president calls the meeting, that’s compliant with the bylaw.
Is there any other reason to think that the meeting has been called illegally? Darlow asked. Scarnecchia said there are other considerations that could apply under OMA, but based on her reading of the regental bylaw, ”this has been called legally.”
Richner, an attorney, said he thought he’d heard from Coleman that the issue wasn’t an emergency. [The conference call interactions and sound quality sometimes made it difficult to recognize who was speaking.] If the president doesn’t think it’s an emergency, he said, then who are the three regents that do? He told Scarnecchia that he didn’t see how she could declare that the meeting is compliant.
Again Ilitch told Richner and Newman that their concerns were duly noted. Again Richner asked who had called the meeting. Deitch noted that at 4:49 p.m. on Monday, Feb. 20 the board had received an email from Coleman calling the meeting.
Coleman said she had talked with several regents, and it had been clear that there was a desire to call a meeting and that they could legally do it.
Ilitch said it was very hypocritical on Newman’s part to question the meeting now. Newman replied that she didn’t want a meeting held in this way.
Resolution Opposing Senate Bill 971
At this point, Coleman asked whether anyone wanted to make a presentation. Larry Deitch said he’d like to step back from the previous exchange and calmly present the history and context in which this issue arises. He then wanted to present an explanation and rationale for the resolution.
Andrea Fischer Newman asked if Deitch had shared his resolution with other regents. No one else has seen it, Deitch replied. “Amazing,” Newman commented.
Deitch continued. In April 2011, the Graduate Employees Organization (GEO) and the American Federation of Teachers/Michigan (AFT/MI) filed a petition with the Michigan Employment Relations Commission (MERC) to become the representative of GSRAs under the state’s Public Employment Relations Act. At their May 2011 meeting, the board adopted this resolution in response, supporting the GEO’s efforts:
Consistent with the University of Michigan’s proud history of strong positive and mutually productive labor relations, the Board of Regents supports the rights of university Graduate Student Research Assistants, whom we recognize as employees, to determine for themselves whether they choose to organize.
In 1981, Deitch continued, MERC had ruled with GSRAs are not employees. The regents’ May 2011 resolution is predicated on the judgment that facts have changed materially since that time, he said. Hearings have been held before administrative law judge Julia Stern, who’ll be making a recommendation to MERC in March. The purpose is for MERC to determine whether GSRAs are employees or not, Deitch said, adding that it’s unknown how MERC will rule.
If MERC rules that GSRAs are employees, then it’s highly likely that there will be an election, Deitch said. GSRAs would vote on whether to be represented by the GEO in collective bargaining with the university. If there is an election, Deitch said, it’s not clear whether a majority of the roughly 2,000 GSRAs will vote for a union.
Regents have not taken a position on whether GSRAs should be represented by a union “and we do not do so today,” Deitch said. The decision is predicated on freedom of choice. Others in the university, including the president, have expressed opposition to the idea of GSRAs as employees, but that opposition has not been inhibited by the regents or anyone else, he said.
Deitch noted that Republican state Sen. Randy Richardville introduced senate bill 971 on Feb. 15, and the senate government operations committee, which Richardville chairs, would be holding a hearing on it later that morning (Feb. 21). The bill states:
An individual serving as a graduate student research assistant or in an equivalent position and any individual whose position does not have sufficient indicia of an employment relationship is not a public employee entitled to representation or collective bargaining rights under this act.
Deitch said he believed strongly that the university should oppose this bill, and gave several reasons for his view. The outcome of MERC’s review is unknown. There is no basis for taking away the jurisdiction from MERC. The bill is also an improper incursion into the internal decision-making of the university. It’s tantamount to changing the rules in the middle of the game, and is a violation of due process, he said.
Deitch then moved a resolution stating that UM opposes the adoption of senate bill 971. It directed Cynthia Wilbanks, UM vice president for government relations, to take “all available action” and to articulate UM’s opposition to legislators and, if necessary, the governor’s office. That action could include – but is not limited to – testimony, the development of position papers, or the hiring of lobbyists. The resolution also stated that Wilbanks should report to the chair of the board or a designee on progress related to the legislation.
Resolution Opposing Senate Bill 971: Board Discussion
Andrea Fischer Newman started the discussion by questioning whether this resolution qualified as an emergency action. In her 17 years on the board, regents have never used this process and never called a meeting that wasn’t given 18-hours notice as required by the Open Meetings Act, she said. To take action without the opportunity for public commentary flies in the face of openness and inclusion. Even the meeting notice itself didn’t indicate a topic, she observed. Newman said she hadn’t planned to participate until she learned that a quorum would be present.
The issue of whether UM is subject to the state’s Public Employment Relations Act (PERA) has been settled, Newman said – the Graduate Employees Organization (GEO) is a reflection of that. The legislature sets broad policy goals, then state agencies create more detailed regulations to carry out legislative mandates. This general principle applies to MERC as well. To say that the legislature should stay out of the issue reflects a misunderstanding of the basic operation of government, she said, and it’s embarrassing.
Newman noted that while six regents have taken the position that GSRAs are employees, two regents – along with the president, provost, deans, and more than 800 students and faculty – disagree, she said. It could fundamentally alter the relationship between faculty and students.
Although she opposed this resolution, Newman asked that all regents be kept informed about action in Lansing. Any information provided to one regent should be provided to all, she said.
Andrew Richner supported Newman’s remarks. The meeting notice was inadequate, he said, and he would have appreciated more public input. He said he hoped they could table he resolution in order to have a more thoughtful and broader discussion. However, he did not make a formal motion to table the resolution.
Like Newman, Richner noted that many UM administrators, faculty, staff and students opposed the view that GSRAs should be treated as employees. In its 1981 ruling, MERC stated that the assistantships are like athletic scholarships, and their essential nature is educational. He believed the board should support the state legislation.
Katherine White weighed in by saying it was her understanding that the president and Newman had wanted this meeting, and that the university’s general counsel said that the meeting was appropriately called. She supported the resolution.
Denise Ilitch spoke next, saying she has a strong belief in freedom of choice – it’s a value of the university. She said the president called the meeting, and that other regents supported it. Under the advice of general counsel, it was an appropriately called meeting, she said.
Libby Maynard described Deitch’s resolution as articulate but more detailed than she would have made it. She felt the university should advocate against the bill. She said she didn’t think they’d be successful, however, because they don’t have control of the legislature or the governor’s office. [She seemed to be referencing the Democratic majority of the board in her statement. The university itself is not an overtly partisan institution.]
When Coleman asked whether Maynard wanted to offer an amendment, Maynard replied that it was difficult to amend something that you can’t see – a reference to the fact that Deitch’s resolution had not been distributed to the regents in written form.
Newman asked for a clarification. The resolution stated that Wilbanks would report to the board chair, not the board. It’s been the practice for university executives to report to the entire board, she noted. Deitch indicated that he would accept it as an amendment – it was his intent for Wilbanks to report to the board. Taylor said if that was Deitch’s intent, there was no need to go through the “rigmarole” of voting on an amendment.
Julia Darlow noted that the context of the senate hearing was relevant to the question of asking for a meeting that morning. She observed that PERA is general legislation that’s not in conflict with the constitutional autonomy of the university. But senate bill 971 specifically picks out the university, and therefore does conflict with UM’s autonomy.
Darlow also clarified with Deitch that his intent for the phrase “all available action” was in the context of what’s appropriate in the changing and “unique” legislative environment.
Coleman took a roll call vote of the regents.
Outcome: By a 6-2 vote, regents approved the resolution opposing senate bill 971 and directing Wilbanks to advocate against it. Dissenting were Andrea Fisher Newman and Andrew Richner.
Outcome of Senate Committee Hearing
Michael Benson, UM graduate student body president, attended the 11 a.m. hearing of the senate government operations committee on Feb. 21. He reported that the committee heard testimony from six people – three who supported the bill, and three who opposed it. Benson said that he spoke on the issue from a neutral platform, while others submitted comment cards voicing their views.
Update after publication: According to a report in the Michigan Information & Research Service (MIRS), Cynthia Wilbanks – UM vice president for government affairs – was one of the people who testified in opposition to the bill. Wilbanks told the committee that the bill would ”interfere in the internal decision-making of the university,” according to MIRS.
After the hearing, committee members – in a 3-2 party line vote – recommended the bill for passage by the full senate, which will take up the bill at a later date.
Present (via conference call): Mary Sue Coleman (ex officio), Julia Darlow, Larry Deitch, Denise Ilitch, Olivia (Libby) Maynard, Andrea Fischer Newman, Andy Richner, Martin Taylor, Kathy White.
Next board meeting: Thursday, March 16, 2012 at 3 p.m. at the Fleming administration building on UM’s central campus. [confirm date]
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