Aerial view of the Dowagiac campus

SMC Trustees receive legal update from attorney

05/24/2018 - 9am

Southwestern Michigan College Board of Trustees heard from its attorney Monday about the unanimous 37-0 Michigan Senate vote on May 15 advancing legislation sponsored by Sen. John Proos to clarify a statewide issue and establish once and for all that part-time college student workers should not be enrolled in the teachers’ retirement system.

Leading up to the Senate action, Attorney General Bill Schuette released a statement supporting both Senate Bill 888 and Rep. Aaron Miller’s House Bill 5679. “Our community colleges have been operating in good conscience since the beginning,” Schuette said.

With regard to a separate matter, a pending lawsuit against the Office of the Auditor General “has everything to do with the Auditor General’s constitutional authority to conduct independent investigative audits, which they do not have under the Michigan Constitution,” attorney Matthew S. Derby of Kotz Sangster said. “They do have the authority to test audits once they’ve audited a state agency, but that’s not what happened here.”

While the Michigan Court of Appeals denied SMC’s motion to remand the case to the Court of Claims, it did take “judicial notice” of the claims in the motion, which was a very favorable result for SMC. Derby told trustees the Court of Claims made reversible errors in basing its initial decision on unsupported OAG claims. “Everything the college submitted was supported by affidavit. The court rule is very clear that when you make a decision on facts outside of the pleadings, and those facts are not supported by any kind of evidentiary basis, that’s reversible error, which is really the crux of our appeal,” said Derby.

The OAG had faulted SMC for failing to contribute to the teacher retirement pension system for part-time student workers. In March, however, a Senate Fiscal Agency report found a majority of Michigan’s community colleges had interpreted the ORS guidance the same way as SMC and also did not include part-time students in the Michigan Public School Employees Retirement System (MPSERS).

At the conclusion of his presentation, Board Chairman Thomas F. Jerdon asked the attorney to address citizen comments seeking an open forum with trustees on this issue.

“There are specific bylaws with respect to the conduct of your meetings,” Derby said. “Nowhere in the bylaws is there any allowance for open forums. The Open Meetings Act doesn’t address these issues, and there is no tradition in Robert’s Rules of Order for an open forum except deliberations within the board itself. The board also needs to keep in mind we have pending legislation with the State of Michigan. It would be very unwise for the board to have any sort of free-flowing discussion on the matter. That would not be prudent.”