The Building Tradesman Newspaper

Friday, May 04, 2018

State board declines to OK prevailing wage repeal petitions

By Marty Mulcahy, Editor

LANSING - The Michigan Board of State Canvassers on April 26 deadlocked 2-2 on whether to certify petition language that would repeal the state Prevailing Wage Act of 1965. The vote was evenly split between the two Republicans and two Democrats on the panel. A majority vote is needed for approval.

The deadlock, for now, stops the petition's repeal language from being presented for a vote before the Michigan Legislature. Protect Michigan Taxpayers, the front group for the Associated Builders and Contractors- Michigan which sponsored the repeal petition, will now take the case of whether the petitions should be approved to the Michigan Court of Appeals. 

"This is really what we expected would happen all along, that it would end up in the courts," said Patrick Devlin, secretary-treasurer of the Michigan Building and Construction Trades Council. He's also co-chairman of Protect Michigan Jobs, the labor/contractor front group for the opposition effort to prevailing wage repeal. "It was another very sloppy petition drive, and we think there's an excellent case to be made for denying thousands of additional petition signatures, and ultimately getting the repeal effort thrown out." 

The Board of Canvassers' vote came during a consequential week for the prevailing wage repeal saga. Late last year the ABC/Protect Michigan Taxpayers submitted some 378,000 signatures to the state as part of their effort to repeal the prevailing wage law. An initial sampling of 535 petition signatures found barely enough ineligible names to trigger a greater sampling of 4,443 names. On April 23, after a nine-week review of that higher sampling of signatures, the Michigan Bureau of Elections reported the prevailing wage repeal initiative had 3,139 valid signatures. If the sampling universe were carried out, it would mean that there were an estimated 268,403 valid signatures - more than the 252,523 needed.  

Union-backed Protect Michigan Jobs maintained that the petition effort should be scuttled because thousands of petition signatures were on sheets submitted by petition circulators who should be disqualified. Numerous petition pages had up to eight signatures – but PMJ’s research found that many petition circulators didn’t provide a current, correct residential address, as required by the petition language.

PMJ attorney John Pirich has argued that petition circulators should be able to be reached if there are questions about the validity of the signatures that they gathered. And in this petition drive, numerous circulators provided nonexistent addresses, or addresses for post office boxes or UPS stores. 

However, the staff at the Bureau of Elections used as guidance a letter (but not an official "opinion") from Attorney General Bill Schuette's office, that appeared to try to quash PMJ's reasoning. On March 28, state Sen. Arlen Meekhof (R-Grand Haven) sent a letter to Michigan Attorney General Bill Schuette asking for an opinion on whether the Board of State Canvassers may reject a challenge to a petition based on a circulator's failure to include a correct residential address in the circulator's certificate. 

Schuette's chief legal counsel, Eric Restuccia, submitted a response on April 6. "A challenge on this basis may be submitted to the Board of State Canvassers, however, such a challenge does not provide a basis for invalidating a petition," he wrote.

Here's his reasoning: Petition circulators must sign each petition sheet, date them and provide their home address. Some of the sanctions under Michigan law for a circulator providing a wrong address, or an "obviously fraudulent" signature, could be misdemeanor jail time or a fine. "None of these permitted sanctions, however, include disqualifying petition sheets or signatures on the petition," Restuccia wrote. "Thus, while a person may file such a challenge, even if successful, it will not defeat the petition or otherwise provide a basis upon which the Board could decline to certify the petition as sufficient."

In other words, you can prosecute a petition collector for providing false information on the petition, but even if he or she is guilty, state law does not discuss whether all the names on that sheet should be disqualified.

A brief filed by Pirich and the union-backed PMJ team said that under the state attorney general's logic, "if the circulator puts Mickey Mouse on every single circulator certificate with 1234 Main Street as its address...if the circulator is 10 years old, if the circulator is not a U.S. citizen, or if the circulator allowed persons to sign the petition multiple times, the Board would not have the authority to invalidate any of the signatures procured by the circulator." 

In addition: "Indeed if this board concludes that it does not have the power to invalidate a signature of an elector based on the conduct of a person collecting the signature, this board will be inviting massive fraud into this process."

A similar prevailing wage petition repeal effort in 2015 was tossed out in 2015 by the Bureau of Elections, which found invalid signatures at a rate of more than 40 percent.

This year Schuette's letter provided some guidance for the Bureau of Elections, whose staffers recommended to the Board of Canvassers that the petition is approved. But they didn't have the last word. Two members of the Board of State Canvassers declined to accept the Bureau of Elections' recommendation, and now the case appears headed to an appeals court and perhaps ultimately the state Supreme Court. 

“Repealing prevailing wage would hurt Michigan workers and slam the brakes on Michigan’s economic comeback,” said Steve Claywell, president of the Michigan Building Trades Council. “We appreciate today’s leadership by members of the Board of Canvassers who recognized the sloppy and unethical tactics used in this attack on prevailing wage.”