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 - http://www.ag.state.mi.us)

STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

Section 1250 of the Revised School Code, MCL 380.1250, does not conflict with Const 1963, art 11, § 6. Article 11, § 6 does not prohibit the Legislature from enacting or amending legislation requiring that a school district, public school academy, or intermediate school district establish a performance-based compensation method for teachers under contract or tenure. In carrying out this statutory mandate, a school district, public school academy, or intermediate school district does not violate art 11, § 6.

Opinion No. 7257

December 21, 2010

Honorable Kevin Elsenheimer
State Representative
The Capitol
Lansing, MI

Honorable Bill Caul
State Representative
The Capitol
Lansing, MI

You both ask whether section 1250 of the Revised School Code (Code), MCL 380.1250, as amended, conflicts with Const 1963, art 11, § 6, which authorizes local governing bodies to adopt merit systems with respect to public employment.

In January 2010, the Governor signed into law a series of public acts, 2009 PA 201-205, which comprise the "Race to the Top" legislation. These acts amended the Revised School Code, 1976 PA 451, MCL 380.1 et seq, the Michigan Public Employment Relations Act, 1947 PA 336, MCL 423.201 et seq, and the State School Aid Act, 1979 PA 94, MCL 388.1601 et seq.

2009 PA 205 added section 1249 and amended section 1250 of the Code to require that school boards, working with teachers and school administrators, implement a rigorous, transparent, and fair performance evaluation system that does all of the following:

(a) Evaluates the teacher's or school administrator's job performance at least annually while providing timely and constructive feedback.

(b) Establishes clear approaches to measuring student growth and provides teachers and school administrators with relevant data on student growth.

(c) Evaluates a teacher's or school administrator's job performance, using multiple rating categories that take into account data on student growth as a significant factor. For these purposes, student growth shall be measured by national, state, or local assessments and other objective criteria.

(d) Uses the evaluations, at a minimum, to inform decisions regarding all of the following:

(i) The effectiveness of teachers and school administrators, ensuring that they are given ample opportunities for improvement.

(ii) Promotion, retention, and development of teachers and school administrators, including providing relevant coaching, instruction support, or professional development.

(iii) Whether to grant tenure or full certification, or both, to teachers and school administrators using rigorous standards and streamlined, transparent, and fair procedures.

(iv) Removing ineffective tenured and untenured teachers and school administrators after they have had ample opportunities to improve, and ensuring that these decisions are made using rigorous standards and streamlined, transparent, and fair procedures. [MCL 380.1249.]

Section 1250, as amended, requires school districts, public school academies, and intermediate school districts to implement and maintain methods of compensation for teachers and administrators that include job performance and job accomplishments as significant factors in determining compensation and additional compensation, the measure of which factors will be based on objective criteria, including student growth data:

A school district, public school academy, or intermediate school district shall implement and maintain a method of compensation for its teachers and school administrators that includes job performance and job accomplishments as a significant factor in determining compensation and additional compensation. The assessment of job performance shall incorporate a rigorous, transparent, and fair evaluation system that evaluates a teacher's or school administrator's performance at least in part based upon data on student growth as measured by assessments and other objective criteria. [MCL 380.1250(1); emphasis added.]

With respect to your question, Const 1963, art 11, § 6, provides that:

By ordinance or resolution of its governing body which shall not take effect until approved by a majority of the electors voting thereon, unless otherwise provided by charter, each county, township, city, village, school district and other governmental unit or authority may establish, modify or discontinue a merit system for its employees other than teachers under contract or tenure. The state civil service commission may on request furnish technical services to any such unit on a reimbursable basis. [Emphasis added.]

Against this statutory and constitutional framework, you ask whether section 1250 of the Code conflicts with the merit system exception for teachers under contract or tenure contained in Const 1963, art 11, § 6. Your question calls for an interpretation of Const 1963, art 11, § 6.

When interpreting a constitutional provision, the goal is to give effect to the common understanding of the text:

"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, and ratified the instrument in the belief that that was the sense designed to be conveyed.'" [Wayne County v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004), quoting Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971) (emphasis in original omitted), quoting Cooley's Constitutional Limitations 81.]

OAG, 1965-1966, No 4534, p 313, 315, 319 (June 13, 1966), reviewed Const 1963, art 11, § 6, and determined that it was a self-executing provision authorizing local governing bodies to implement by ordinance or resolution the establishment, modification, or discontinuance of a merit system for its employees upon a majority vote of the electorate approving such ordinance or resolution.

In Sloan v Warren Civil Service Comm, 26 Mich App 555, 563-564; 182 NW2d 815 (1970), the Court ruled that, once a local unit exercises its powers under Const 1963, art 11, § 6, the Legislature may not enact a conflicting state law:

The defendants argue that under the PERA, enacted in 1965, collective bargaining agreements must prevail over civil service provisions. . . . We do not agree.

The flaw in defendants' argument is their contention that the state legislature has modified the civil service provisions applying to employees of cities by the enactment of the PERA. It is hornbook law that statutes are to be read in conformity with the constitution. We do not accept the proposition inherent in defendants' argument that what the constitution gives the legislature can take away. We conclude that the commission had jurisdiction in the instant case to determine the skills and abilities needed for various jobs and the equality of the different job classifications. [Emphasis added.]

In Council 23, AFSCME v Wayne County Civil Service Comm, 32 Mich App 243, 248; 188 NW2d 206 (1971), the Court cited Sloan for the proposition:

The language of art 11, § 6 is permissive. Local governments may establish civil service systems. Once those systems are established they are independent of legislative control.

The plain and unambiguous words of Const 1963, art 11, § 6 empower local governmental units and authorities, including school districts, to "establish, modify or discontinue a merit system for its employees other than teachers under contract or tenure." If a local unit elects to exercise that power, the Legislature may not enact laws purporting to override the terms of the local merit system.

But with regard to teachers under contract or tenure, Const 1963, art 11, § 6 expressly does not empower local units to adopt a merit system. Unlike a law for employees generally, a law concerning a merit system for teachers under contract or tenure could not conflict with the powers conferred on local units, including school districts, by Const 1963, art 11, § 6.

Additionally, the plain language of Const 1963, art 11, § 6 does not purport to restrict the Legislature, in contrast to local units, from enacting a merit system for teachers under contract or tenure. In the absence of a constitutional restriction, the Legislature is free to legislate in any area of public interest. "The Michigan Constitution is a limitation on the Legislature's power, not a grant of power to it." Federated Publications, Inc v Michigan State Univ Bd of Trustees, 460 Mich 75, 83; 594 NW2d 491 (1999). Neither Const 1963, art 11, § 6 nor any other provision of the constitution precludes the Legislature from enacting laws pertaining to a merit system for teachers under contract or tenure.

In Council 23, the Court of Appeals recognized the authority of the Legislature to enact laws concerning merit systems, so long as doing so does not conflict with a merit system duly adopted by a local unit of government under art 11, § 6:

Article 11, § 6 must be read to intend the plain meaning of its words. Its words do not, in their plain meaning, prevent the legislature from amending statutes which organize local civil service systems not organized under art 11, § 6. [Council 23, 32 Mich App at 248.]

Since local merit systems for teachers under contract or tenure would not be established under art 11, § 6, the Legislature remains free to enact or modify laws concerning such systems.

This conclusion based on the plain language of Const 1963, art 11, § 6 is further supported by the circumstances surrounding its adoption. See, e.g., Federated Publications, Inc, 460 Mich at 85 (A provision's meaning may also be clarified by considering the circumstances surrounding the provision's adoption and its intended purpose). The constitutional convention comments for § 6 (Committee Proposal 76) indicate that teachers were excluded because their employment was considered subject to other regulations or laws, like the Teachers' Tenure Act, MCL 38.71 et seq, or were otherwise controlled by contract. 1 Official Record, Constitutional Convention 1961, pp 1754-1758, 1763. For example, Delegate Bentley observed:

[I]t is pretty clearly understood that this [committee proposal] would not conflict with the teachers' tenure act, this would only apply to so called nonteaching employees in an administrative or custodial capacity [.] [1 Official Record, Constitutional Convention 1961, p 1755.]

In summary, art 11, § 6's exclusion for teachers under contract or tenure does not purport to limit the Legislature's ability to enact or amend legislation authorizing or requiring school employers to establish a performance-based compensation method for teachers under contract or tenure. The Legislature, not the local unit, has the constitutional authority to prescribe a merit system for teachers under contract or tenure. Such legislative authorization for a merit system is independent of any constitutional authorization under art 11, § 6. By carrying out the terms of MCL 380.1249 and 380.1250, the school districts are not establishing, modifying, or discontinuing a civil service merit system for teachers under contract or tenure in violation of art 11, § 6. Rather, the school districts will be fulfilling the independent mandate of the Legislature that they establish a performance-based compensation method for their teacher employees.

It is my opinion, therefore, that section 1250 of the Revised School Code, MCL 380.1250, does not conflict with Const 1963, art 11, § 6. Article 11, § 6 does not prohibit the Legislature from enacting or amending legislation requiring that a school district, public school academy, or intermediate school district establish a performance-based compensation method for teachers under contract or tenure. In carrying out this statutory mandate, a school district, public school academy, or intermediate school district does not violate art 11, § 6.

MIKE COX
Attorney General