Proposal 2 on Michigan’s November ballot is creating its fair share of waves for language that would enshrine public and private employee collective bargaining rights in the state constitution. Opponents argue that, by doing so, collective bargaining agreements would be held at the same level as laws passed by the legislature and signed by the governor. This arrangement would mean that collective bargaining agreements could trump laws already on the books.
A recent editorial in the Detroit News by Mike LaFaive, the fiscal policy director at the Mackinac Center, raised the troubling possibility that public unions’ powerful new bargaining rights under Proposal 2 could put FOIA at risk.
Under Prop 2, nothing would prevent state or local government officials from signing a union labor contract that prohibits disclosing information otherwise protected by FOIA. They could even make the collective bargaining agreement itself subject to government secrecy, and the Legislature would be helpless to halt the process.”
By and large, the assessment seems spot on. As the author notes, enshrining collective bargaining rights in the state constitution would make each negotiation “its own constitutional convention.
Supporters of Proposal 2 might insist that while overriding a law like the Freedom of Information Act would be possible, public unions would have little interest in doing so. In some instances, this is entirely believable. One ad urging voters to oppose the measure, for example, has tied the possibility of constitutionally recognized collective bargaining agreements to the chance that these agreements might do away with school bus safety regulations or laws keeping felons out of public schools. This might be possible, but does not seem likely to actually happen.
Keeping the public out of the loop by skirting FOIA laws, though, has been too common of a tactic amongst the powerful looking to advance their own interests through the mechanisms of state and local government. What better way for a group to push the interests of public employees, perhaps at the expense of taxpayers, than to write into their agreements provisions preventing the public from passing a keen eye over important documents and records?
As the editorial suggests, the contracts themselves could become exempt from FOIA. Secretive contract negotiations are already common across the country. One need only look back to the recent strike by Chicago public school teachers for evidence.
The same editorial also charts the troubling FOIA history of Michigan public employee unions. The case of Howell Education Association v. Howell Board of Education involved a journalist’s request for communications sent on school district computers and email accounts by three teachers who were also union officials. When the Howell Education Association sued to prevent release of the documents, the Michigan Court of Appeals sided with the union in holding that the communications, despite being sent through school machines and email addresses, were not subject to FOIA under the law’s personal privacy exemption.
No matter the outcome of Proposal 2 this November, Michiganders should work hard to preserve and protect the basic tenants of transparency found within the Freedom of Information Act.