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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

Emergency mangers reign supreme when it comes to assigning positions of power within their jurisdiction, as demonstrated in <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20150120_C319509_54_319509.OPN.PDF" target="_blank" rel="noreferrer noopener"><em>Martin v. Murray</em></a>, No. 319509.&nbsp; When the Detroit Public Schools (“DPS”) board of education challenged the school system emergency financial manager’s ability to fill a vacancy on the board when a board member resigned, the Court of Appeals sided with the emergency manager. Though the Board has such authority by statute, so does the emergency manager.&nbsp; Because the emergency manager law is more recent and specific than that which empowers the Board, the Court resolved the conflict in favor of the emergency manager.

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When the emergency manager’s candidate showed up for his first Board meeting, the Board refused to acknowledge him, choosing instead to honor its own appointment. Of course, ignoring a problem rarely solves it, litigation ensued, and the Board lost the legal battle.&nbsp; While two statutes give the Board a general power to fill Board vacancies, the emergency manager law, MCL 141.1549(2), -1552(2), also gives the emergency manager such power during his tenure. In fact, MCL 141.1549(2) states that emergency managers are empowered to “remove, replace, appoint, or confirm the appointments to any office, board, commission, authority, or other entity which is within or is a component unit of the local government.” The Court of Appeals held that this more recent and more specific statute trumped the other laws.

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The Court also rejected the Board’s separation of powers argument.&nbsp; The Board also argued that the emergency manager’s appointment power violated the separation of powers doctrine. Michigan case law limits the separation of powers doctrine to the state-level government. Local governments are free to vest executive and legislative powers in the same office. The Court of Appeals, therefore, found that the separation of powers doctrine did not apply.

Finally, the Court disagreed that allowing the emergency manager to select the new board member created a conflict of interest because the Board was intended to remain an independent check on the emergency manager. The Board does have the power to remove an emergency manager after 18 months of service and by a supermajority vote. But, other than that, there is no law that permits Board oversight of the emergency manager. Thus, the Court of Appeals found the Board’s final argument meritless.

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Gaëtan Gerville-Réache

Labor and Employment

Emergency manager’s power to appoint school board official is superior to the board’s appointment power, according to COA

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Emergency manager’s power to appoint school board official is superior to the board’s appointment power, according to COA

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