Honorable Wayne Kuipers
State Senator
The Capitol
Lansing, MI

You have asked several questions concerning 2009 PA 201, which amended section 15 of the Michigan Public Employment Relations Act (PERA), MCL 423.201 et seq.

Materials included with your request reveal that school districts around the State have received letters from various bargaining units asking to bargain over the bidding process the school district uses to contract with a third party for noninstructional support services.¹ These units seek to bargain the specific content of any Request for Proposal (RFP) the school district develops for noninstructional support services; the procedures to be followed if and when bidding occurs; the scope of the contract between the school district and any potential third-party bidder; the administrative oversight to be provided; and any other matter concerning the overall bidding process. The bargaining units point to section 15(3)(f) of PERA, MCL 423.215(3)(f), in support of their argument.

You ask whether section 15(3)(f) of PERA, as recently amended, allows bargaining units to use the collective bargaining process to help craft an RFP, and otherwise assist in developing the competitive bidding process for noninstructional support services in Michigan public school districts, and then bid on the RFP. You also ask whether such involvement in developing the bidding process would preclude the bargaining unit from then bidding on the contract, "on an 'equal basis' as other bidders," as provided in section 15(3)(f) of PERA.

Before the 2009 amendment to PERA, bargaining units had no legal right to bid on any contract for noninstructional support services, and this was a prohibited subject of collective bargaining. Section 15 of PERA, as amended by 1994 PA 112, provided in relevant part:

               (2) A public school employer has the responsibility, authority, and right to manage and direct on behalf of the public the operations and activities
          of the public schools under its control.

               (3) Collective bargaining between a public school employer and a bargaining representative of its employees shall not include any of the following
          subjects:

                                                                                                                                               * * *

               (f) The decision of whether or not to contract with a third party for 1 or more noninstructional support services; or the procedures for obtaining the
          contract; or the identity of the third party; or the impact of the contract on individual employees or the bargaining unit.

                                                                                                                                               * * *

               (4) The matters described in subsection (3) are prohibited subjects of bargaining between a public school employer and a bargaining representative of
          its employees, and, for the purposes of this act, are within the sole authority of the public school employer to decide. [Emphasis added.]

Section 15 of PERA was amended by 2009 PA 201, one of five bills tie-barred in a school reform package, commonly known as the Race to the Top legislation.² 2009 PA 201 added the following italicized language to section 15 of PERA, MCL 423.215, which now provides in pertinent part:

               (2) A public school employer has the responsibility, authority, and right to manage and direct on behalf of the public the operations and activities of
          the public schools under its control.

               (3) Collective bargaining between a public school employer and a bargaining representative of its employees shall not include any of the following
          subjects: 

                                                                                                                                               * * *

               (f) The decision of whether or not to contract with a third party for 1 or more noninstructional support services; or the procedures for obtaining the
          contract for noninstructional support services other than bidding described in this subdivision; or the identity of the third party; or the impact of the
          contract for noninstructional support services on individual employees or the bargaining unit. However, this subdivision applies only if the bargaining
          unit that is providing the noninstructional support services is given an opportunity to bid on the contract for the noninstructional support services on
          an equal basis as other bidders.

                                                                                                                                               * * *

               (4) Except as otherwise provided in subsection (3)(f), the matters described in subsection (3) are prohibited subjects of bargaining between a public
          school employer and a bargaining representative of its employees, and, for the purposes of this act, are within the sole authority of the public school
          employer to decide. [Emphasis added.]

Before the 2009 PA 201 amendment, the first sentence of subdivision (f) listed four items that were prohibited subjects of collective bargaining: (1) "the decision of whether or not to contract with a third party for 1 or more noninstructional support services;" (2) "the procedures for obtaining the contract;" (3) "the identity of the third party;" and (4) "the impact of the contract on individual employees or the bargaining unit." The italicized words added to the first sentence by 2009 PA 201 created an exception listed in the second prohibited subject of bargaining, "other than bidding described in this subdivision." You ask what that exception means.

The answer to your question requires the application of several rules of statutory construction. The foremost rule of statutory construction requires courts to give effect to the intent of the Legislature. Wickens v Oakwood Healthcare System, 465 Mich 53, 60; 631 NW2d 686 (2001). The statutory language must be read and understood in its grammatical context, unless it is clear that something different was intended. Herman v Berrien County, 481 Mich 352, 366; 750 NW2d 570 (2008). Courts consider the plain meaning of the critical word or phrase and its placement and purpose in the statutory scheme. Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999). Statutory provisions are not to be read in isolation; rather, context matters, and statutory provisions must be read as a whole. Robinson v City of Lansing, ___ Mich ___; ___ NW2d ___ (April 8, 2010), (Docket No. 138669), 2010 Mich LEXIS 694, p 22. "It is the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation." Kales v City of Oak Park, 315 Mich 266, 271; 23 NW2d 658 (1946), quoting Hopkins v Hopkins, 287 Mass 542; 192 NE 145; 95 ALR 1286 (1934). Amendments of a statute must be construed harmoniously with other provisions of the statute, and a change in the statutory language is presumed to reflect a change in meaning. Michigan Millers Mut Ins Co v West Detroit Bldg Co, 196 Mich App 367, 373; 494 NW2d 1 (1992). Courts presume that every word of a statute should be given meaning and no word should be treated as surplusage or rendered nugatory if at all possible. Altman v Meridian Charter Twp, 439 Mich 623, 635; 487 NW2d 155 (1992).

The exception in question appears in the first sentence of subdivision (f) as an exception to the second-listed prohibited subject of collective bargaining: "the procedures for obtaining the contract for noninstructional support services other than bidding described in this subdivision." (Emphasis added.) Grammatically, given its placement in the sentence, the exception is to that second-listed prohibited subject – not to the other three prohibited subjects of collective bargaining.

To fully discern the meaning of the exception, however, consideration must be given to the second sentence of subdivision (f) that was also added by 2009 PA 201:

               (3) Collective bargaining between a public school employer and a bargaining representative of its employees shall not include any of the following
          subjects:

                                                                                                                                               * * *

               (f) The decision of whether or not to contract with a third party for 1 or more noninstructional support services; or the procedures for obtaining the
          contract for noninstructional support services other than bidding described in this subdivision; or the identity of the third party; or the impact of the
          contract for noninstructional support services on individual employees or the bargaining unit. However, this subdivision applies only if the bargaining
          unit that is providing the noninstructional support services is given an opportunity to bid on the contract for the noninstructional support services on
          an equal basis as other bidders. [MCL 423.215(3)(f); emphasis added].

The plain language of that second sentence provides a condition that must be satisfied before the prohibitions in the first sentence apply: "[T]he bargaining unit that is providing the noninstructional support services [must be] given an opportunity to bid on the contract for the noninstructional support services on an equal basis as other bidders." Stated differently, unless the bargaining unit is given an opportunity to bid on an equal basis as other bidders, none of the prohibited subjects of collective bargaining in subdivision (f) apply.

Standing alone, the language of the second sentence allows the public school employer to decide whether to allow the bargaining unit to bid on an equal basis. Deciding how to select a third party to provide noninstructional support services, including whether to adopt a process in which the bargaining unit will be allowed to bid on an equal basis with other bidders, falls within "the procedures for obtaining the contract for noninstructional support services" – a prohibited subject of collective bargaining under the first sentence of subdivision (f). By inserting the words, "other than bidding described in this subdivision," the Legislature carved out an exception to that particular prohibited subject of collective bargaining. The only "bidding described in this subdivision," is the bidding described in the second sentence. There are no other references to bidding in subdivision (f). Thus, subdivision (f) does not prohibit collective bargaining on the narrow subject of whether a public school employer that decides to contract with a third party for noninstructional support services will allow the bargaining unit to bid on the contract on an equal basis as other bidders. With that narrow exception, if the bargaining unit that is providing the noninstructional support services is given an opportunity to bid on the contract for those services on an equal basis as other bidders – whether as a consequence of collective bargaining or otherwise – the prohibitions against collective bargaining on the four listed subjects in subdivision (f) apply.³

The legislative intention to otherwise retain the prohibitions against collective bargaining on the subjects listed in subdivision (f) is shown not only by the plain language of that subdivision, but by the introductory clause added by 2009 PA 201 to subsection (4), and the remainder of subsection (4), which recognized the newly-created exception and the retention otherwise of the prohibitions:

               (4) Except as otherwise provided in subsection (3)(f), the matters described in subsection (3) are prohibited subjects of bargaining between a public
          school employer and a bargaining representative of its employees, and, for the purposes of this act, are within the sole authority of the public school
          employer to decide. [Emphasis added.]

Finally, if the collective bargaining units were allowed to bargain over all of the procedures for obtaining a contract for noninstructional support services, or more, it would be impossible for them to participate in bidding on the contract, "on an equal basis as other bidders." The procedures developed in that collective bargaining process would create the appearance, if not the substance, of a competitive advantage for the collective bargaining unit. That would render subdivision (f) meaningless because its prohibitions only apply if the bargaining unit is given an opportunity to bid on an equal basis as other bidders.

It is my opinion, therefore, that under section 15(3)(f) of the Public Employment Relations Act, MCL 423.215(3)(f), as amended by 2009 PA 201, if, and only if, the public school employer decides that the bargaining unit that represents employees providing noninstructional support services will be given an opportunity to bid on a third-party contract for those services on an equal basis as other bidders, the subjects of (1) the decision of whether to contract with a third party for one or more noninstructional support services, (2) the procedures for obtaining the contract for noninstructional support services, (3) the identity of the third party, and (4) the impact of the contract on individual employees or the bargaining unit, are prohibited subjects of collective bargaining. Section 15(3)(f) does not, however, prohibit collective bargaining over the ability of the bargaining unit to have an opportunity to bid on a contract for those services on an equal basis as other bidders, should the public school employer decide to contract with a third party for one or more noninstructional support services.

MIKE COX
Attorney General

¹ Noninstructional support services include transportation, food services, and custodial or maintenance services.

² The Race to the Top fund is a competitive federal grant program created under the American Recovery and Reinvestment Act of 2009.  The program is designed to encourage and reward States that are creating the conditions for education innovation and reform; achieving significant achievements in student outcomes; and implementing ambitious plans in core education reform areas.  (Race to the Top Program Executive Summary, U.S. Department of Education, November 2009, p 2.)  See <http://www2.ed.gov/programs/racetothetop/executive-summary.pdf> (accessed June 3, 2010). 

³ This construction of the statute is consistent with the events leading to passage of HB 4788 by the House and Senate and signed into law as 2009 PA 201.  The House passed HB 4788 on June 25, 2009, with the language of MCL 432.215(3)(f) completely stricken.  This would have eliminated the four listed prohibited subjects of collective bargaining.  On December 9, 2009, the Senate passed a version of HB 4788 with MCL 432.215(3)(f) reinstated.  The bill was referred to the conference committee.  2009 Journal of the House 2572 (No. 110, December 17, 2009).  On December 19, 2009, the Senate adopted the conference report with the amendatory language in section 15(3).  2009 Journal of the Senate 2547 (No. 106, December 19, 2009).  The amended language thus appears to be a compromise between the House, which favored deleting the prohibitions of section 15(3)(f) entirely, and the Senate, which favored retaining all of section 15(3)(f), with no exceptions.