Opinion #6686

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. 6686

July 10, 1991

CIVIL SERVICE COMMISSION:

Collective bargaining for state troopers

STATE POLICE:

Collective bargaining

LABOR DISPUTES:

Collective bargaining for state troopers

1969 PA 312 controls the resolution of disputes between State Police troopers and sergeants and their employer.

The term "comparable communities" in 1969 PA 312, MCL 423.239(d); MSA 17.455(39)(d), permits, but does not require, the arbitration panel to consider the terms and conditions of employment of state police forces of comparable states in resolving disputes between State Police troopers and sergeants and their employer.

Any amendments to 1969 PA 312 after November 7, 1978, would have no effect on the resolution of disputes between State Police troopers and sergeants and their employer.

Honorable Curtis Hertel

State Representative

The Capitol

Lansing, Michigan

You have asked three questions concerning the 1978 amendment to Article 11, Sec. 5, of the 1963 Michigan Constitution and two related public acts. The 1978 Amendment granted the right to troopers and sergeants of the Michigan State Police to "bargain collectively with their employer concerning conditions of their employment...." If bargaining collectively does not resolve all disputes, then the 1978 amendment gave the State Police troopers and sergeants "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." (Emphasis added.)

1969 PA 312 (hereinafter Act 312), MCL 423.231 et seq; MSA 17.455(31) et seq, provided for compulsory arbitration of labor disputes in municipal police and fire departments in 1978. In response to the 1978 constitutional amendment, the Legislature passed 1980 PA 17 (hereinafter Act 17), MCL 423.271 et seq; MSA 17.455(81) et seq, which provides for compulsory arbitration of labor disputes of State Police troopers and sergeants pursuant to the 1978 amendment. Your three questions are:

1) Does Act 312 or Act 17 control the resolution of disputes between State Police troopers and sergeants and their employer?

2) If Act 312 controls the resolution of disputes, does the term "comparable communities" in MCL 423.239(d); MSA 17.455(39)(d), permit the arbitration panel to consider terms and conditions of employment for state police forces of comparable states in resolving disputes between State Police troopers and sergeants and their employer?

3) If Act 312 controls the resolution of disputes, what would be the effect of any amendments to Act 312 after November 7, 1978, on the resolution of disputes between State Police troopers and sergeants and their employer?

The primary rule of constitutional interpretation is that of the "common understanding" of the people who adopted the constitution. It has been described as follows:

"A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. 'For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding....' (Cooley's Const Lim 810." ... [quoting] [Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). Emphasis in original.]

Livingston County v Department of Management & Budget, 430 Mich 635, 642; 425 NW2d 65 (1988).

The language of the 1978 amendment is clear. State Police troopers and sergeants are granted the right "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." Const 1963, art 11, Sec. 5. (Emphasis added.) At the time the 1978 amendment was passed, Act 312 provided for compulsory arbitration of labor disputes in municipal police and fire departments. OAG, 1979-1980, No 5499, p 191, 194 (June 11, 1979). It is my opinion, therefore, in answer to your first question, that Act 312 controls the resolution of disputes between State Police troopers and sergeants and their employers. 1980 PA 17 is inconsistent with Const 1963, art 11, Sec. 5, and, therefore, unconstitutional. The provisions of 1980 PA 17 are only applicable to compulsory arbitration involving State Police troopers and sergeants and their employers. Because the provisions of 1980 PA 17 are not "the same as" the provisions of 1969 PA 312, as the latter act existed on November 7, 1978, 1980 PA 17 is unconstitutional.

Your second question is whether the term "comparable communities" in MCL 423.239(d); MSA 17.455(39)(d), permits the arbitration panel to consider the terms and conditions of employment for state police forces of comparable states in resolving disputes between State Police troopers and sergeants and their employer. MCL 423.239(d), MSA 17.455(39)(d), provides that the arbitration panel instituted under Act 312:

[S]hall base its findings, opinions and order upon the following factors, as applicable:

(d) Comparison of the wages, hours and conditions of employment of the employees involved in the arbitration proceeding with the wages, hours and conditions of employment of other employees performing similar services and with other employees generally:

(i) In public employment in comparable communities.

(ii) In private employment in comparable communities.

The primary rule in interpreting a statute is to give effect to the legislative intent. Luttrell v Dep't of Corrections, 421 Mich 93, 100-101; 365 NW2d 74 (1984). The Legislature in passing Act 312, however, did not consider the issue of whether the term "comparable communities" included other states because Act 312 was intended to provide for compulsory arbitration of labor disputes only in municipal police and fire departments in Michigan. Moreover, in 1969 there was no form of collective bargaining authorized for State Police troopers and sergeants under art 11, Sec. 5.

Where the Legislature has no intent on a specific question, then " 'what the judges have to do is, not to determine what the legislature did mean on a point which was present in its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present.' " Wayne County Civil Service Commission v Board of Supervisors, 384 Mich 363, 368; 184 NW2d 201 (1971) (per curiam) (footnote omitted), quoting Cardozo, The Nature of the Judicial Process (1921). (Emphasis added by the Wayne County Civil Service Commission court.) It is what the 1969 Legislature would have done if presented with the question that controls. Id. at 373.

The purpose of Act 312 was to provide for compulsory arbitration as an alternative dispute resolution mechanism because municipal police and fire department employees were prohibited from striking. MCL 423.231; MSA 17.455(31). It was to be liberally construed in order to maintain the high morale of such employees. Id.

The Legislature granted the arbitration panel broad authority to determine what were comparable communities and what factors to consider in arriving at an award. The word communities is a broad word which includes unincorporated townships, home rule cities, and all the other types of municipalities in Michigan. The Legislature left it to the arbitration panel to determine what factors to use in determining comparable communities. The Legislature further gave the arbitration panel the authority to consider "[s]uch other factors, not confined to the foregoing, which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining...." MCL 423.239(h); MSA 17.455(39)(h).

There is no reason to think that the 1969 Legislature, if it had been presented with the issue of whether the term "comparable communities" included comparable states, would have decided the issue any more than it decided which municipal communities were comparable. The Legislature would have given the discretion to the arbitration panel to determine which states, if any, were comparable to Michigan. It is my understanding, moreover, that bargaining parties ordinarily consider other states as well as communities within Michigan for comparison purposes during collective bargaining.

The 1980 Legislature, when it drafted Act 17, MCL 423.280(d); MSA 17.455(90)(d), changed the term comparable communities to "comparable states." While the intent of the 1980 Legislature is not controlling, it is relevant. Wayne County Civil Service Commission, supra, 384 Mich at 374-375.

It is my opinion, therefore, in answer to your second question, that the term "comparable communities" in Act 312, MCL 423.239(d); MSA 17.455(39)(d), permits, but does not require, the arbitration panel to consider the terms and conditions of employment of state police forces of comparable states in resolving disputes between State Police troopers and sergeants and their employer.

Your third question is what would be the effect of any amendments to Act 312 after November 7, 1978, on the resolution of disputes between State Police troopers and sergeants and their employer. The 1978 constitutional amendment authorized compulsory arbitration "as now provided by law for Public Police and Fire Departments." The principle of law involved in and determinative of the issue raised in your question is adoption or incorporation by reference. As observed by the court in City of Pleasant Ridge v Governor, 382 Mich 225, 244; 169 NW2d 625 (1969):

The principle of statutory adoption or incorporation by reference is no stranger to Michigan.

In People v Malsch, 119 Mich 112, 77 NW 638 (1898), the court had before it substantially the same issue as that which your third question presents. It resolved that issue as follows at p 115:

The law of 1885 refers to the then-existing disorderly act, instead of repeating the substance of its pertinent provisions. By such reference, such act became a part of the act of 1885; and it is an established rule that in such a case it is not affected by a subsequent repeal of the act referred to. See End.Interp.Stat. Sec. 492.

Similarly, in Haveman v Kent County Road Commissioners, 356 Mich 11, 18; 96 NW2d 153 (1959), the court stated:

It is an established rule that when one statute adopts by reference a definition in a former statute such definition becomes a part of the later statute and is not affected by the subsequent amendment or repeal of the earlier act containing the definition. People v Malsch (1898), 119 Mich 112 (75 AmStRep 381); Wayne County Prosecuting Attorney, ex rel. Taxpayers, v City of Highland Park, 317 Mich 220.

Thus, it is clear that the legal principle of adoption by reference is firmly established in this State and that if the original statute is later amended or repealed, this later action has no effect upon the adopted statute.

In addition, the people authorized a specific form of collective bargaining for State Police troopers and sergeants. It was not a general grant of authority to the Legislature to regulate collective bargaining for State Police troopers and sergeants in the state classified civil service. OAG, 1979-1980, No 5499, at 192. The constitutional prohibition against the Legislature enacting laws providing for the resolution of disputes concerning public employees in the state classified civil service was unchanged by the 1978 amendment. Const 1963, art 4, Sec. 48. Id. at 192-193.

It is my opinion, therefore, in answer to your third question, that any amendments to Act 312 after November 7, 1978, would have no effect on the resolution of disputes between State Police troopers and sergeants and their employer.

Frank J. Kelley

Attorney General