UM Regents Split on State House Lawsuit

Action targets legislation on graduate student research assistants

University of Michigan board of regents special meeting (April 2, 2012): At a special meeting held on Monday afternoon that lasted less than 30 minutes, the board passed a resolution directing UM administrators to file an amicus brief in support of a lawsuit filed by Michigan House Democrats against the GOP majority. The lawsuit indirectly related to recent legislation regarding graduate student research assistants (GSRAs), which had been given “immediate effect” by a voice vote of the legislature.

Julia Darlow, Mary Sue Coleman

From left: University of Michigan regent Julia Darlow talks with UM president Mary Sue Coleman after the April 2 special meeting of the board. Darlow was the only regent physically present for the meeting. All other regents participated via conference call. (Photos by the writer.)

Dissenting in the 5-3 vote were the board’s two Republican regents – Andy Richner and Andrea Fischer Newman – as well as Democrat Libby Maynard. Richner and Newman objected vigorously to the action. Richner said it was inappropriate to intervene in a “political spat,” and worried that the vote could have long-term implications that the regents may regret. Newman said the issue involved House procedural rules that Democrats and Republicans have both used in the past.

Denise Ilitch, who voted with the Democratic majority, said the view of Richner and Newman was hypocritical. She said that they had testified at legislative hearings in support of legislation that had the effect of preventing GSRAs from unionizing. Maynard said her opposition was for very different reasons than those given by Richner and Newman, and indicated that she wasn’t comfortable in general with the university filing amicus briefs.

Except for Julia Darlow, all other regents participated in the meeting via conference call.

A hearing on the lawsuit took place earlier in the day at Ingham County Circuit Court, where judge Clinton Canady III ruled in favor of the Democrats and issued a stay on legislation that had been given immediate effect, including the GSRA legislation. That law – which regents had voted to oppose at a Feb. 21 special meeting – made explicit that GSRAs are not entitled to collective bargaining rights under Michigan’s Act 336 of 1947. There are more than 2,000 GSRAs at the university.

Republicans are expected to appeal Canady’s ruling. The motion that was passed by a majority of regents on Monday directed UM administrators to file an amicus “friend of the court” brief in any appeal as well. Jeff Irwin, a Democrat from Ann Arbor’s District 53, is one of the plaintiffs in the lawsuit.

Background: GSRA Law, Legislative Actions

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 graduate student research assistants (GSRAs) under the state’s Public Employment Relations Act.

At their May 19, 2011 meeting, UM regents debated and ultimately passed a resolution supporting the rights of GSRAs to decide whether to organize and be represented by a labor union. The resolution was introduced near the beginning of that meeting by Julia Darlow, who at that time served as the board’s chair. It stated:

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.

During that meeting, UM president Mary Sue Coleman spoke against the resolution in a statement she read aloud prior to the vote. [.pdf file of Coleman's full statement]

Hearings were subsequently held before administrative law judge Julia Stern, who was expected to make a recommendation to MERC in March of 2012. The purpose was for MERC to determine whether GSRAs are employees. MERC had previously ruled in 1981 that GSRAs were not employees.

But before MERC acted, in mid-February 2012 Republican state Sen. Randy Richardville introduced Senate Bill 971. The bill made explicit that GSRAs are not entitled to collective bargaining rights under Michigan’s Act 336 of 1947. The senate government operations committee, which Richardville chairs, held a hearing on the legislation on the morning of Feb. 21. That same morning, UM regents held a special meeting to discuss a response to the legislation.

After a contentious debate that pitted the two Republican regents against the Democratic majority on the board, regents voted 6-2 to formally oppose the bill. The committee later in the day voted to recommend the bill for passage by the full Senate, and the bill was ultimately passed by both the Senate and the House (HB 4246), and signed into law by Gov. Rick Snyder on March 13.

Under normal circumstances, the legislation would have become law 90 days after the end of a legislative session. However, the legislature’s GOP majority used an “immediate effect” maneuver to enact the law as soon as it was signed by the governor. According to Article IV, Section 27 of the Michigan Constitution, the legislature can give immediate effect to an act by a two-thirds vote of the members in each house. The recent “immediate effect” votes in the House were taken by voice vote, not by roll call, leaving some question about whether the action achieved the required number of votes.

House Democrats – including Rep. Jeff Irwin of Ann Arbor’s District 53 – have demanded roll-calls for “immediate effect” votes, on this and other legislation. According to Article IV, Section 18 of the state Constitution, a roll-call vote must be taken if requested by one-fifth of the members of either the House or Senate. With 110 House representatives, 22 representatives would be constitute one-fifth of the House. There are currently 47 Democratic representatives in the House.

House Democrats have said they presented sufficient signatures to force roll-call votes on immediate effect, but that those attempts were ignored by the House Republican majority. So on March 27, the House Democratic leadership announced that they were filing a lawsuit against their Republican counterparts over the refusal by the GOP majority to hold recorded roll-call votes. Irwin is one of the plaintiffs in the lawsuit, which was filed in Ingham County Circuit Court. [Lansing is located in Ingham County.]

On April 2, Judge Clinton Canady III held a “show cause” hearing, which concluded prior to the UM regents’ special meeting that afternoon. At the conclusion of the hearing, Canady granted the Democrats’ request for a preliminary injunction, preventing House Republicans from using voice votes to give legislation immediate effect. Canady also enjoined the enactment of immediate effect on three House bills: HB 4246, related to banning the unionization of GSRAs; HB 4929, which banned public schools from collecting dues for teachers unions; and HB 5063, which required future ballot proposals to be approved by the Board of State Canvassers before being circulated. HB 5063 has not yet passed the Senate.

HB 4246 directly affects UM’s 2,000-plus GSRAs.

Pre-Meeting Exchanges

Unlike the previous special meeting on Feb. 21, which was sparsely attended by executive officers, the April 2 meeting drew several UM executives to the boardroom, including provost Phil Hanlon, CFO Tim Slottow, vice president and secretary Sally Churchill, and Cynthia Wilbanks, vice president for government relations. UM president Mary Sue Coleman, who participated in the last special meeting via conference call, was in the room as well this time to chair the session.

Suellyn Scarnecchia, UM’s general counsel, attended the meeting in person. Also attending in person were Ora Pescovitz, UM’s executive vice president for medical affairs, and Doug Strong, CEO of the UM Hospitals and Health Centers.

All regents – with the exception of Julia Darlow – participated via conference call. Before the official start of the meeting, Libby Maynard asked about an email that regents had received from Nancy Asin, assistant secretary of the university, regarding an issue related to the UM hospital. Coleman told her that wasn’t the topic of this meeting, and Churchill quickly added that Maynard was speaking at a public meeting with others in the room. Churchill said there would be an “informal discussion” with regents on the topic that Maynard had broached, following the public meeting.

Maynard asked who was in the room, and Coleman replied that several executive officers, the media, and “other interested parties” were there. [In addition to The Chronicle, other media included representatives from the Detroit News, Detroit Free Press, and the Michigan Daily.]

Also prior to the meeting’s start, regent Martin Taylor  – speaking via conference phone – noted that the judge had already issued a decision in the case. Denise Ilitch, the board’s chair, said she still thought they should proceed, and Taylor agreed. The case will likely be heard in appeals, he said. “Exactly,” Ilitch replied.

Special Meeting: Amicus Brief

Mary Sue Coleman called the meeting to order and turned to Suellyn Scarnecchia, UM’s general counsel, who said it was her understanding that the meeting had been called to determine if the university would take an official position regarding the legal challenge to the legislature’s “immediate effect” actions. She reported that the judge had issued a decision earlier in the day – she noted that she had already emailed this information to UM executives and regents.

The judge’s ruling from the bench was in favor of the Democratic legislators, Scarnecchia said, and stayed the “immediate effect” enactment of recent legislation but did not address the substance of the legislation.

The question is whether to file an amicus brief with the court, Scarnecchia said – the judge had indicated that he would allow it – and also whether to file if the judge’s decision is appealed to the Michigan Court of Appeals. She noted that David Fink and Darryl Bressack – with the Bloomfield Hills law firm Fink + Associates – were acting as outside counsel for UM and were on the conference call. Bressack had been in the courtroom earlier in the day when the judge made his ruling, she said.

Noting that he was actually out of the country, Fink told regents that he and Bressack were there to answer questions. As far as procedural moves, it’s inevitable that the case will be appealed, he said. The ruling that day was of particular relevance, he added, because it stayed the immediate effect of Public Act 45. [The law is also known as the Public Employment Relations Act, and states that graduate student research assistants (GSRAs) are not public employees.]

Fink said the intent is now to ask the the Michigan Employment Relations Commission (MERC) to move forward with its own ruling on whether GSRAs are employees. Fink also reported that the judge had said there’s nothing precluding the legislature from taking a vote on immediate effect – it would pass if it received a two-thirds majority. “I don’t know if they would do that,” Fink said. Regardless, he added that his firm will anticipate taking the university’s position to the appeals court.

Regent Martin Taylor said he was ready to make a motion directing counsel to file a friend-of-the-court brief in this lawsuit. Although the judge has issued an opinion, Taylor noted, briefs can still be filed. Taylor moved to file an amicus brief in the Ingham County Circuit Court and any other court through the appeals process. The motion was seconded by Denise Ilitch.

Libby Maynard said she didn’t want anyone to be surprised by her vote, but she didn’t feel good about the university filing an amicus brief so she wouldn’t support this motion. She indicated that she didn’t want to go into further detail about her decision, but later said that it’s for totally different reasons than the ones cited by other regents – Andy Richner and Andrea Fischer Newman – who also opposed it.

Mary Sue Coleman

UM president Mary Sue Coleman at the April 2 special regents meeting.

Richner asked Coleman what her views are on the matter. Coleman replied that she had made her comments last year, and that she wouldn’t comment on this case. It’s something the board needs to decide, she said.

Coleman was referring to remarks she made at the May 2011 regents meeting. At that meeting on a 6-2 vote, regents passed a resolution supporting the rights of GSRAs to decide whether to organize and be represented by a labor union. Before the vote, Coleman had spoken out against the move, describing the relationship between graduate researchers and faculty as a special one that was fundamentally different than an employee-employer relationship. Changing the nature of that interaction could affect the university in significant ways, which she said caused her deep concern. Richner and Newman, the only two Republican regents, had voted against the resolution.

At the April 2 meeting, Richner asked whether the university had done anything like this in the past, in terms of filing an amicus brief: “Isn’t this unprecedented?” Scarnecchia replied that it hadn’t happened during her tenure as general counsel. [She was appointed in June of 2008.]

Larry Deitch pointed out that the board had been fully behind the UM administration during the affirmative action lawsuit against the university, which was appealed all the way to the U.S. Supreme Court. Newman observed that the case didn’t involved the board moving to file an amicus brief, however.

Richner asked Coleman what her view was regarding the amicus brief. She replied that it’s certainly within the board’s purview to do this, and she wouldn’t question it. However, she added, it’s a rare action to take.

Richner wondered whether the administration would be filing an amicus brief, if the board didn’t direct them to do so.  That determination hadn’t been made, Coleman replied. Those discussions haven’t taken place among the executive staff.

Newman said she didn’t think it was appropriate to file an amicus brief. The university’s interest is only tangential at best, she said, and the board shouldn’t get involved in legislative procedural issues. It doesn’t do the university any good to take sides on a procedural move that both Democrats and Republicans have used over the years, she said.

Newman then said she found the circumstances of this meeting to be troubling. She noted that she had expressed these same views regarding the previous special meeting in February. She understood that public notice of the meeting had been given. [An email message regarding the Monday afternoon meeting had been sent to media on Saturday, March 31. 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.]

But Newman observed that no topic had been indicated in the meeting notice – she felt the topics should be included in all such notices.

There’s nothing to be gained by not having public commentary on this issue, Newman said. [No agenda was made available, and there was no opportunity for public commentary during the meeting.] She said the regents tend not to share information on this topic, unlike anything else they do at the institution. She repeated that she found it troubling.

Richner agreed with Newman. Weighing in on a political spat between political parties is unprecedented and could have long-term implications that the regents may regret. In the past, he noted, the university has taken a position on certain legislation that it wanted to take immediate effect. He said he understood the passion on the issue –  presumably referring to the GSRA law – but this lawsuit goes well beyond that, and he didn’t think they should take a position on it.

Ilitch said she deeply disagreed with some of the observations that had been made. With respect to noticing meetings, she said the board has conducted itself as it always has. She supported Taylor’s motion, saying that it’s important to the values of the university. It’s scary to her when legislation is passed that takes immediate effect. Historically, there have been awful laws passed, she said.

Ilitch also said it was hypocritical to talk about not taking political positions, when Richner and Newman had testified in support of the GSRA legislation. “You can’t have it both ways,” she said.

Deitch said that Ilitch had articulated the reasons why he also supported Taylor’s motion. The university is an institution that’s about free speech, and about the right of the minority to be heard, he said. The rules of due process were not followed by the legislature. There were written requests for a roll-call vote, he noted, but those requests were ignored.

The university is an institution that’s about upholding certain values, Deitch said, and the actions of the GOP legislators are inconsistent with those values, in his judgment.

Newman responded by saying that she hadn’t seen the brief filed by Republicans in this case, but she didn’t believe the lawsuit had anything to do with the rules of due process. These are House rules, she said, and both Democrats and Republicans have used them. It’s not the board’s business to intervene. It has nothing to do with the principles of free and open speech. In the future when meetings like this are called, she hoped that the topic would be provided in advance and that people would have the chance to speak during public commentary. She hoped the future meetings would allow the kind of free speech “that we all cherish so dearly.”

Outcome: On a 5-3 roll-call vote, the board passed a resolution directing the administration to file an amicus brief in support of the state House Democrats’ lawsuit. Dissenting were Libby Maynard, Andrea Fischer Newman and Andy Richner.

Present: Mary Sue Coleman (ex officio), Julia Darlow. Also present via conference call: Larry Deitch, Denise Ilitch, Olivia (Libby) Maynard, Andrea Fischer Newman, Andy Richner, Martin Taylor, Kathy White.

Next regular board meeting: Thursday, April 19, 2012 at 3 p.m. at the Fleming administration building on UM’s central campus. [confirm date]

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