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

JENNIFER M. GRANHOLM, ATTORNEY GENERAL


CIVIL SERVICE:

COLLECTIVE BARGAINING:

EMPLOYEES:

STATE POLICE:

WHISTLE-BLOWERS' PROTECTION ACT:

Application of Whistle-Blowers' Protection Act to state police troopers and sergeants


The Whistle-Blowers' Protection Act does not apply to troopers and sergeants employed by the Michigan Department of State Police.


Opinion No. 7007

February 22, 1999


Honorable Mike Rogers
State Senator
The Capitol
Lansing, Michigan

You have asked whether the Whistle-Blowers' Protection Act applies to troopers and sergeants employed by the Michigan Department of State Police.

The Whistle-Blowers' Protection Act (Act), 1980 PA 469; MCL 15.361 et seq; MSA 17.428(1) et seq, provides protection to "employees" who report a violation or suspected violation of state, local, or federal law. Under specified circumstances, the Act prohibits an employer from disciplining an employee who reports violations of the law. The Act creates a cause of action providing various forms of relief, including civil fines. Section 1(a), which defines those employees protected by the Act, excludes state classified civil service employees.

"Employee" means a person who performs a service for wages or other remuneration under a contract of hire, written or oral, express or implied. Employee includes a person employed by the state or a political subdivision of the state except state classified civil service.

(Emphasis added.)

The dispositive question, therefore, is whether troopers and sergeants employed by the Michigan Department of State Police are members of the state classified civil service. If they are, the Act does not protect them; if they are not, the Act does protect them.

The Michigan Constitution largely answers this question. Const 1963, art 11, 5, which establishes the Civil Service Commission and enumerates its powers and responsibilities, provides, in pertinent part, as follows:

The classified state civil service shall consist of all positions in the state service except those filled by popular election, heads of principal departments, members of boards and commissions, the principal executive officer of boards and commissions heading principal departments, employees of courts of record, employees of the legislature, employees of the state institutions of higher education, all persons in the armed forces of the state, eight exempt positions in the office of the governor, and within each principal department, when requested by the department head, two other exempt positions, one of which shall be policy-making. . . .

***


The [civil service] 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 percent 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.

(Emphasis added.)

The third paragraph quoted above resulted from a 1978 amendment to the Michigan Constitution which granted state police troopers and sergeants the right to bargain collectively with respect to conditions of employment.

In order to interpret these constitutional provisions, we need simply to consider the ordinary meaning of the language used. The primary rule of constitutional interpretation is that of the "common understanding" of the people who adopted the constitution. The Michigan Supreme Court has described the rule 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.'"

Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), quoting Cooley's Const Lim 81. (Emphasis in original.)

Applying this rule of interpretation to the plain language of Const 1963, art 11, 5, supra, that section provides that "[t]he classified state civil service shall consist of all positions in the state service . . .," except for those positions specifically exempted. Since they are not listed among the stated exceptions of Const 1963, art 11,  5, employees of the Michigan Department of State Police fall within the state classified civil service. The Michigan Supreme Court has held that all state executive branch employees, except for the few who are specifically exempted, occupy "positions in the state service." Civil Service Comm v Dep't of Labor, 424 Mich 571, 576, 615-616; 384 NW2d 728 (1986).

The 1978 amendment to Const 1963, art 11,  5, does not exempt from the state classified civil service, troopers and sergeants employed by the Michigan Department of State Police. Rather, this amendment establishes an exception to the constitutional provision that grants to the Civil Service Commission plenary authority to establish procedures to review grievances of state civil service employees. Moreover, the 1978 amendment explicitly retains the Civil Service Commission's plenary authority to determine "promotions" for state police trooper and sergeant positions, consistent with all state classified civil service positions, based upon "competitive examination and performance." Therefore, the 1978 amendment did not remove troopers and sergeants from civil service coverage. As members of the state classified civil service, state police troopers and sergeants are excepted from the Act's definition of "employee" and are thus not subject to the provisions of the Act.

It is my opinion, therefore, that the Whistle-Blowers' Protection Act does not apply to troopers and sergeants employed by the Michigan Department of State Police.

Despite this lack of coverage under the Act, state classified civil service employees who disclose violations remain protected. Rules adopted by the Michigan Department of Civil Service prohibit an appointing authority from engaging in reprisals against such employees for reporting a violation or suspected violation of state law, federal law, or state or local administrative rules. See, Civil Service Rule 2-23.


JENNIFER M. GRANHOLM
Attorney General