The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5499 June 11, 1979 CIVIL SERVICE COMMISSION: Collective bargaining for state troopers STATE POLICE: Collective bargaining CONSTITUTION OF MICHIGAN: Art 11, Sec. 5 (state classified civil service) CONSTITUTION OF MICHIGAN: Art 4, Sec. 48 (disputes concerning public employees) CONSTITUTION OF MICHIGAN: Art 4, Sec. 31 (balanced budget) CONSTITUTION OF MICHIGAN: Art 5, Sec. 18 (governor's budget) BUDGET: Compensation of state classified employees LABOR DISPUTES: Collective bargaining for state troopers The Civil Service Commission is required to conduct the unit representation election permitted by Const 1963, art 11, Sec. 5 as amended by Proposal G (the constitutional amendment authorizing collective bargaining by state police troopers and sergeants). The Commission may also implement collective bargaining aspects of Proposal G until 30 days after collective bargaining has begun. A dispute which remains unresolved after the 30-day period may be resolved by the initiation of binding arbitration proceedings pursuant to the procedures provided in 1969 PA 312. Changes in compensation or fringe benefits bargained for by state police troopers and sergeants pursuant to Const 1963, art 11, Sec. 5 as amended by Proposal G must be included in the same time frame as is currently observed for changes in compensation for other state classified employees and is subject to the waiver provision accorded to the Legislature by Const 1963, art 11, Sec. 5. Increases in rates of compensation arrived at by collective bargaining must be transmitted to the Legislature in the same manner as recommendations for increases in compensation of other state classified employees. Mr. Richard A. Ross State Personnel Director Department of Civil Service Lewis Cass Building Lansing, Michigan You have requested my opinion on the following questions: 1. Does the Civil Service Commission have the responsibility for establishing procedures to facilitate collective bargaining and for resolving disputes arising from collective bargaining as mandated by Proposal G? 2. Must any changes in compensation or fringe benefits as bargained for by the exclusive representative of the troopers and sergeants in the Department of State Police and the designated employer (or as determined by an arbitrator's decision) be accomplished so as to be included in the same time frame as is not followed for consideration of changes in compensation for other state classified employees? 3. Must such increases or changes, additionally, be a part of the governor's message to the legislature and be treated the same as all recommendations for other classified employees unless the legislature waives such notice by a two-thirds vote as provided for by the Constitution? Proposal G amended Const 1963, art 11, Sec. 5 by adding a new paragraph 5. It is useful to read and compare the paragraph added by Proposal G together with the preceding paragraph of Const 1963, art 11, Sec. 5. These two paragraphs state: 'The commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service. 'State Police Troopers and Sergeants shall, through their elected representative, designated by 50% of such troopers and sergeants, have the right to bargain collectively with their employer concerning conditions of their employment, compensation, hours, working conditions, retirement, pensions and other aspects of employment except promotions which will be determined by competitive examination and performance on the basis of merit, efficiency and fitness; and they shall have the right 30 days after commencement of such bargaining to submit any unresolved disputes to binding arbitration for the resolution thereof the same as now provided by law for Public Police and Fire Departments.' Prior to January 1, 1941, the civil service system was based upon statute. (1) In the November, 1940 general election, after a successful initiative petition drive, the electors of the state amended Const 1908, art 6, by adding Sec. 22, which provided for the constitutional status of the Civil Service Commission and a method to select, classify, promote, compensate and provide for the conditions of employment of state employees. That section, with certain revisions, was incorporated into Const 1963, as art 11, Sec. 5. In May, 1975, Joint Resolution X was introduced in the Michigan House of Representatives. House Joint Resolution X would have amended Const 1963, art 11, Sec. 5 to permit State Police Troopers and Sergeants to collectively bargain with their employer. However, House Joint Resolution X never passed. A petition campaign was then mounted to secure sufficient signatures to have a collective bargaining amendment placed on the 1978 general election ballot. The campaign was successful, and the electors of the state of Michigan on November 7, 1978 amended Const 1963, art 11, Sec. 5, by adding a new paragraph 5, supra, which became effective 45 days after the election. Const 1963, art 12, Sec. 2. Subsequent to the general election, but prior to the effective date of the constitutional amendment, Governor William G. Milliken notified the Michigan State Police Troopers Association that the Department of Civil Service would be conducting the certification process, and that he had designated the Department of State Police as his representative primarily responsible to negotiate with the troopers' and sergeants' designated representatives. (Appendix A) The Office of State Personnel Director, by letter dated December 18, 1978, advised the Michigan State Police Troopers Association that the Department of Civil Service was prepared to proceed with the election process as soon as the Association filed the necessary petition for election. (Appendix B) The correspondence from both the Governor and the State Personnel Director reveals that they were prepared to begin the collective bargaining process with the Michigan State Police Troopers Association. However, on December 22, 1978, the Troopers Association on behalf of Michigan State Police Troopers and Sergeants filed a complaint for mandamus and declaratory judgment in the Michigan Court of Appeals, seeking a declaration as to the respective duties of the Governor, the Director of the Department of Labor, and the Michigan Employment Relations Commission (MERC) and the issuance of a mandatory order directing the same parties to perform such duties. However, in Michigan State Police Troopers Association et al v State of Michigan et al, No. 78-5349 (January 16, 1979), ---- Mich App ----, lv den, 406 Mich ---- (1979), the Michigan Court of Appeals, in an order dismissing the complaint for mandamus, found that 'the proper forum for certifying the bargaining representative of State Police Troopers and Sergeants is the Michigan Civil Service Commission.' During the pendency of the litigation, OAG, 1979-1980, No 5430, p ___ (January 9, 1979) was issued. This opinion concluded that: '. . . the term 'employer' in Proposal G, means the Governor's designated representative.' As previously discussed, the amendment authorizing collective bargaining was placed within the article and section of the Michigan Constitution of 1963 providing for the establishment of the state classified civil service and the Michigan Civil Service Commission. There is neither any mention of nor can any intent be implied from the wording of the collective bargaining amendment that the people of the State of Michigan, who voted its passage, intended any entity other than the Michigan Civil Service Commission to be responsible for the implementation of collective bargaining for State Police Troopers and Sergeants. The Civil Service Commission has promulgated and implemented rules, policies, and regulations pursuant to its rule making powers authorized by Const 1963, art 11, Sec. 5. The amendment leaves untouched this responsibility of the Civil Service Commission to make rules and regulations covering all personnel transactions. The Civil Service Commission has, since August, 1976, been operating within the guidelines of its Employee Relations Policy for the conducting of representation elections. The Employee Relations Policy and implementing regulations provide a mechanism for the determination of proper bargaining units and the certification of the elected representative of a bargaining unit. The Civil Service Commission is therefore required to conduct the unit representation election, Michigan State Police Troopers Association v State of Michigan, supra. The second part of your first question requests a determination of the entity responsible for resolving disputes arising from the collective bargaining permitted by Proposal G. Const 1963, art 4, Sec. 48, provides that the legislature may not enact laws for the resolution of disputes involving state classified employees. This provision states: 'The legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service.' Const 1963, art 11, Sec. 5 which, as amended, authorizes collective bargaining for State Police Troopers and Sergeants states, in pertinent part: '. . . they [State Police Troopers and Sergeants] shall have the right 30 days after commencement of such bargaining to submit any unresolved disputes to binding arbitration for the resolution thereof the same as now provided by law for public police and fire departments.' Thus, 1969 PA 312; MCLA 423.231 et seq; MSA 17.455(31) et seq, sometimes referred to as the Compulsory Arbitration Act for Policemen and Firemen, is referred to within Const 1963, art 11, Sec. 5, supra, as amended. 1969 PA 312, Sec. 3, supra, provides that: 'Whenever in the course of mediation of a public police or fire department employee's dispute, except a dispute concerning the interpretation or application of an existing agreement (a 'grievance' dispute), the dispute has not been resolved to the agreement of both parties within 30 days of the submission of the dispute to mediation, or within such further additional periods to which the parties may agree, the employees or employer may initiate binding arbitration proceedings by prompt request therefor, in writing, to the other, with copy to the employment relations commission.' Therefore, it is my opinion that the Civil Service Commission may implement the collective bargaining aspects of Const 1963, art 11, Sec. 5 as amended until 30 days after collective bargaining has begun. A dispute which remains unresolved after the 30 day period may be resolved by the initiation of binding arbitration proceedings pursuant to the procedures provided in 1969 PA 312, supra. 2. Must any changes in compensation or fringe benefits as bargained for by the exclusive representative of the troopers and sergeants in the Department of State Police and the designated employer (or as determined by an arbitrator's decision) be accomplished so as to be included in the same time frame as is now followed for consideration of changes in compensation for other state classified employees? Proposal G, supra, approved as a constitutional amendment by the electorate in November, 1978 provided only for certain specific privileges for a certain category of classified state employees (State Police Troopers and Sergeants). It did not purport to, nor did it in fact, alter or amend any other provision of the state constitution. Thus, while Proposal G, supra, delineates the method (collective bargaining) to be used to arrive at the rate of compensation for the described class of employees, it does not provide any directions for determining the effective date for such compensation. Although subject to collective bargaining, the bargained for compensation can only be placed into effect in compliance with the Constitution. Const 1963, art 11, Sec. 5, reads in part: 'Increases in rates of compensation authorized by the commission may be effective only at the start of a fiscal year and shall require prior notice to the governor, who shall transmit such increases to the legislature as part of his budget. The legislature may, by a majority vote of the members elected to and serving in each house, waive the notice and permit increases in rates of compensation to be effective at a time other than the start of a fiscal year. Within 60 calendar days following such transmission, the legislature, may, by a two-thirds vote of the members elected to and serving in each house, reject or reduce increases in rates of compensation authorized by the commission. Any reduction ordered by the legislature shall apply uniformly to all classes of employees affected by the increases and shall not adjust pay differentials already established by the civil service commission. The legislature may not reduce rates of compensation below those in effect at the time of the transmission of increases authorized by the commission.' Therefore, agreements as to rates of compensation between the Civil Service Commission and employees must either be processed in accord with the time frame provided or they must receive the approval of a majority of the members of both houses of the legislature in order to be effective at a time other than the start of the fiscal year. In addition, it should be noted that the duties of the Governor with respect to providing budget information to the legislature are enunciated in Const 1963, art 5, Sec. 18 as follows: 'The governor shall submit to the legislature at a time fixed by law, a budget for the ensuing fiscal period setting forth in detail, for all operating funds, the proposed expenditures and estimated revenue of the state. Proposed expenditures from any fund shall not exceed the estimated revenue thereof. On the same date, the governor shall submit to the legislature general appropriation bills to embody the proposed expenditures and any necessary bill or bills to provide new or additional revenues to meet proposed expenditures. The amount of any surplus created or deficit incurred in any bond during the last preceding fiscal period shall be entered as an item in the budget and in one of the appropriation bills. The governor may submit amendments to appropriation bills to be offered in either house during consideration of the bill by that house, and shall submit bills to meet deficiencies in current appropriations.' This section contemplates a balanced budget. To comply with this mandate, the Governor must be aware of proposed expenditures for employee compensation prior to the date on which the budget is to be submitted to the legislature. With that knowledge, the Governor will be able to allocate the available revenues and submit the constitutionally required 'balanced budget.' Further, having knowledge of the rates of compensation will allow compliance with the requirements of art 11, Sec. 5 by giving prior notice of rate increases to the Governor and thereby allowing him to transmit such information to the legislature as part of his budget. One other constitutional provision is important to the legislature and their consideration of appropriating finances for any rates of compensation approved in the collective bargaining process. Const 1963, art 4, Sec. 31, provides that: 'The general appropriation bills for the succeeding fiscal period covering items set forth in the budget shall be passed or rejected in either house of the legislature before that house passes any appropriation bill for items not in the budget except bills supplementing appropriations for the current fiscal year's operation. Any bill requiring an appropriation to carry out its purpose shall be considered an appropriation bill. One of the general appropriation bills as passed by the legislature shall contain an itemized statement of estimated revenue by major source in each operating fund for the ensuing fiscal period, the total of which shall not be less than the total of all appropriations made from each fund in the general appropriation bills as passed.' This section points out the practicality of having all rates of compensation submitted to the legislature via the Governor's budget message. Attempts to read the provisions cited above in harmony with each other prove unavailing due to the provision allowing the legislature to waive notice to the Governor. Therefore, we are guided by the following rule concerning conflicting provisions of the Constitution as enunciated in McDonald v Schnipke, 380 Mich 14, 19; 155 NW2d 169 (1968): "In such a case, if there is a conflict between a general and a specific provision in a constitution, the special provision must prevail in respect of its subject matter, since it will be regarded as a limitation on the general grant, but the general provision will be left to control in cases where the special provision does not apply.' 16 Am Jur 2d, Constitutional Law, Sec. 69, p 247, and cases there cited.' See also Advisory Opinion on Constitutionality of 1978 PA 426, 403 Mich 631; 272 NW2d 495 (1978). In applying the rule cited above, it is my opinion that the specific authority granted to the legislature to permit increases in rates of pay at times other than the start of a fiscal year prevails over the provisions of art 4, Sec. 31, supra, and art 5, Sec. 18, supra, as they are conched in broader and more general terms than the specific override provision contained in art 11, Sec. 5, supra. Therefore, it is my opinion that any changes in compensation or fringe benefits bargained for by the State Police Troopers and Sergeants must be included in the same time frame as now followed for changes in compensation for other state classified employees and are subject to the waiver provision accorded to the legislature by Const 1963, art 5, Sec. 11. 3. Must such increases or changes be a part of the governor's message to the legislature and be treated the same as all recommendations for other classified employees? It is my opinion that increases in rates of compensation arrived at via collective bargaining must be transmitted to the legislature in the same manner as recommendations for increases in compensation of other classified state employees. The specific constitutional language, art 11, Sec. 5, supra, requires that the Civil Service Commission shall give 'prior notice to the governor who shall transmit such increases to the legislature as a part of his budget.' Further, the Governor is bound by the constraints of Const 1963, art 5, Sec. 18, supra, which imposes the following requirement: 'The governor shall submit to the legislature at a time fixed by law, a budget for the ensuing fiscal period setting forth in detail, for all operating funds, the proposed expenditures and estimated revenue of the state. . . .' Reading these two sections of the Constitution in concert, it is evident the people intended that the Governor's budget to the legislature should include all proposed expenditures for the ensuing fiscal year. The Convention Comments regarding art 11, Sec. 5, supra, contain the following discussion: 'Increases in compensation can be authorized by the commission only at the start of a fiscal year and after prior notice to the governor so he can accommodate the increases in the budget he submits to the legislature.' (Official Record, Constitutional Convention, Vol. II, 1961, p 3405) However, the delegates to the convention were not unmindful that an argument might be made that the Governor could control civil service pay raises by virtue of the transmittal requirement. It should be noted that the delegates to the convention considered this possibility and it was stated: 'It is not intended that the governor would have the power to control pay rates by virtue of the requirement that proposed increases be included as part of his budget. Only an orderly procedure is sought and intended.' (Official Record, Constitutional Convention, Vol 1, 1961, p 659) Therefore, it is my opinion that such increases or changes must be a part of the Governor's message to the legislature the same as other recommendations for classified civil service employees. Frank J. Kelley Attorney General December 15, 1978 December 19, 1978. Gordon M. Gotts, President Michigan State Police Troopers Association 6920 South Cedar Street, Suite 1 Lansing, Michigan 48910 Dear Sergeant Gotts: I appreciate your letter of December 5, 1978, informing me of your request for recognition as the exclusive representative of state troopers and sergeants. I am forwarding your correspondence to the Department of Civil Service which will be conducting the certification process. I note that you did not enclose showing of interest petitions with your letter to me and those should appropriately be delivered to Mr. Ross. You will be interested in the fact that I have designated the Department of State Police as the agency with primary responsibility to negotiate with the designated representatives of troopers and sergeants. The Department of Management and Budget will also assist in this process. My letter to Colonel Hough is enclosed for your information. Kind personal regards. Sincerely, Governor William G. Milliken Governor DEPARTMENT OF CIVIL SERVICE Lewis Cass Building 320 S. Walnut Street, Box 30002 Lansing, Michigan 48909 Richard A. Ross State Personnel Director December 18, 1979 Sergeant Gordon M. Gotts, President Michigan State Police Troopers Association 6840 South Cedar Cedarview Building, Suite 4 Lansing, Michigan 48910 Dear Sgt. Gotts: The Governor has forwarded your December 5, 1978 letter on recognition. You should recognize that you could file a petition at any time for an election under the current Employee Relations Policy and Regulations and that we have been prepared to proceed with the election process as soon as we have received your petition. Sincerely, Richard A. Ross State Personnel Director (1)