(Source: MIRS.news, Published 02/02/2024) The Governor’s directive that prohibited the state from contracting with companies that don’t pay their workers union rates stands after a ruling from the Michigan Court of Appeals, that said the issue wasn't moot despite the Legislature reinstating prevailing wage.
In a 3-0 published opinion Thursday from Judge Christopher M. Murray, the panel held that the Department of Technology, Management and Budget’s decision to apply a prevailing-wage policy to state construction contracts “is permitted by its discretionary power established” in state statute.
Derk Wilcox, senior attorney for the Mackinac Center for Public Policy, said the plaintiffs are "not planning an appeal because this issue is likely moot, as Michigan lawmakers have re-instituted the state's prevailing wage law.”
“We participated in this case primarily as a check on administrative power,” he said. “The governor's office was using unelected bureaucrats to override clear state law essentially via press release. Regardless of the political party in charge, the Mackinac Center is skeptical of the administrative state unilaterally re-interpreting laws.”
A DTMB spokesperson said the department is reviewing the Court of Appeals decision.
In October 2021, Gov. Gretchen Whitmer ordered DTMB to require contractors and subcontractors on jobs worth more than $50,000 to pay their employees prevailing wage – a union rate determined by region by the department.
The requirement took effect on projects bid after March 1, 2022, and the following July the Associated Builders and Contractors of Michigan (ABC) filed its lawsuit in the Court of Claims.
In October 2022, the trial court held DTMB didn’t violate the law when it implemented the policy (See “Judge: DTMB Prevailing Wage Policy Doesn’t Violate Law,” 10/11/22).
ABC appealed, and DTMB as well as intervenor (MBCTC) argued it was moot because the Legislature enacted a new prevailing wage effective in March, but the appeals panel disagreed.
“If we were to agree with ABC and reverse the Court of Claims grant of summary disposition, that judgment will still have a practical legal effect on the existing controversy through March 2024,” Murray wrote with concurrence from Judges Michael J. Riordan and Michael J. Kelly. “This appeal is not moot.”
