Tuesday, November 22, 2011

My (mis)Adventure Exploring Pure Michigan (Pictured Rocks National Seashore)

During the November In-District Work Period, I decided to take a break from my legislative duties of door-to-door constituent contact, issue studies, blog postings, industry tours, Lansing meeting regarding reforming the underfunded MPSERS system, etc., to explore a bit of Pure Michigan. I completed 38 miles (plus four more, but more about that later) of the 42 mile North Country National Scenic Trail in the Pictured Rocs National Seashore on the south shore of Lake Superior just east of Munising in four days.

Day 1, Friday, November 18 (my 62nd birthday): I left at 7:30 a.m. from Ann Arbor and arrived at the Visitor Center in Munising before 2:00 p.m.. (stopping in St. Ignace for the mandatory pasty - pronounced “PASS TEE”). After I obtained my back country permit and left my car at Munising Falls, the Park Superintendent Jim Northrup graciously drove me about an hour’s drive to the starting point of my trip – Log Slide, 4 miles from the east end of the trail at Grand Marais. We overlooked the long, near vertical sand dune down which the loggers slid the majestic white pine logs in the old logging days down to the lake. To the east were huge sand dunes perched above the lake on sandstone cliffs.

I began my 5.9 mile hike towards Benchmark, my first night campsite, about 3:15 p.m., hotfooting it, as dark was quickly approaching. Hmm, I recall hiking with a 40 pound pack being much easier. I began to discover parts of my body I had forgotten I had. Nonetheless, I arrived at Benchmark and got the tent up as dark closed in.

Now, to get some water from the lake to cook dinner. I made my way over the sand dunes and down to the lake by headlamp, only to find that there was no way to get water from the lake without either wading out into it or digging a hole in the sand with a stick beyond waves into which water could seep from which I could then pump water through my water purifier. Hmmm, well, too late to do the latter and I surely was not going wading in that cold water. So, I decided to make the 1/3 liter of water remaining in my water bottle do until I could reach a stream in the morning. Needless to say, it was a dry night and morning as I nursed that meager liquid.

Backcountry Map
Backcountry Map

Day 2, Saturday, November 19: I broke camp and started the 10.5 mile hike towards my next campsite at Coves as soon as daylight permitted. I pushed hard to get to water, as I was feeling dehydrated, and came to Seven Mile Creek after 3.2 miles. Ahh, I needed that.

I pushed on along the Twelve Mile Beach of beautiful white sand with snow pellets falling from time to time, but not enough to accumulate. Views of Grand Portal Point beckoned me from the distance. The lake splashed leisurely waves upon the shore under gray sullen skies. I flushed two deer and a ruffed grouse along the route, but saw little wildlife beyond some squirrels and a few small birds.

At about 4 miles, I felt a blister starting on my right heel. While catching a snack and rest break, I put on moleskin to protect it.

Near Beaver Creek, I discovered the sleeping pad was no longer on my pack. Darn! Sleeping without a pad would not be comfortable on the hard frozen ground without the pad’s insulation. I decided to drop my pack and go back along the trail in hopes of recovering the pad. Two miles back I found the pad at a log lying across the trail where I had had trouble getting past. Note to self: securely fasten all items to the pack!.I returned to my pack an hour and 15 minutes after I had left it, relieved, but a bit more tired than planned. I slowly trudged the 1.3 miles remaining to my Coves campsite as it began to rain.

I got the tent up before it really began to rain hard - too hard to want to start my stove in the rain to cook dinner, so it was cold dinner of Ritz crackers, cheese,  almonds, chocolate chips, and raisins. Three young guys arrived in camp in the rain as it got dark.

It rained hard for several hours and then I heard the rain drops on the tent lessen and then stop. Ice was forming on the tent and I thought surely I would wake to 3 – 4 inches of snow on the ground. The wind had picked up as well to perhaps 20 miles per hour. I slept to the sound of thundering waves.

1 Sandy Beach 2 Grand Portal Point Far Away 
Sandy Beach                          Grand Portal Point in the Distance

3 More Sandy Beach
Twelve Mile Beach

Day 3, Sunday, November 20: I awakened at dawn to discover no snow at all on the ground, but quite a bit colder than the day before, with the wind continuing. The waves were crashing upon the shore and sandstone cliffs. I was becoming more efficient in equipment organization and found I still remembered most of the mountaineering tricks of:

  • making the most of my equipment to stay as comfortable as possible,
  • eating small snacks frequently to maintain blood sugar levels without overloading the digestive system and depriving the legs of blood,
  • a slow and steady pace to avoid stressing the body and minimize effort, gearing down on uphill stretches and lengthening strides on the flats, to maintain as steady an oxygen demand as possible,
  • and regulating heat via multiple pieces of clothing going on and off (especially around my head and neck and hands). I was sleeping well, warm and snug as a bug in a rug.

About two miles down the trail towards my next camp 11.8 miles away I was passed by a young couple. Grand Portal Point with its arch carved by time, water and ice came and went, as I put one foot in front of the other. The trail crunched beneath my feet, on frozen leaves and wet earth. The blister was bigger and reminding me of its presence with each step.

I set my goal for the next major landmark 2-4 miles ahead. Then the next. The last 3.1 miles from Mosquito campsite to Potato Patch was not fun. I thought that what I was doing was for recreation, and if it no longer was fun, it made sense to quit. I decided to get to the nearest road in the morning and call to Munising to get picked up. In short, I was exhausted.

Meanwhile, in camp I dined on two packages of Top Ramen, together with graham crackers, cheese, etc. and was asleep by 6:00 p.m. I awoke about 2:00 a.m. and ate again, then went back to sleep.

4 Grand Portal Point Closer 5 Grand Portal Point Even Closer
Grand Portal Point Closer       Grand Portal Point Even Closer


6 Grand Portal Point - Finally
Grand Portal Point

Day 4, Monday, November 21: I awoke at 6:48 feeling considerably refreshed.

I was encouraged when I discovered my last day planned was 8.9 miles, rather than over 12 miles as I had remembered it. I decided to head out for the first trailhead along my route and play it by ear. Using my browser on my cell phone, I had determined that no taxi existed in Munising to call. I thought it would be a bit of abuse of my position to call the Park Service and ask then to come get me..I also had always thought that fellow mountaineers ought to take precautions to be able to get themselves out of difficulty and not expect someone else to rescue them, so philosophically, I did not want to do that either.

I hiked the little over a mile to the first trailhead fairly easily. Not a creature was stirring in the empty parking lot. I decided to keep going until the next trailhead at Sand Point, about 4 miles further. I thought if I got there, I could drop my pack and walk the 2.9 miles to the car, then drive back for the pack.

When I arrived at a fork in the trail about a half mile from the Sand Point parking lot, the sign said 2.9 miles to Munising Falls via the other direction. Unsure whether there would be any transportation at Sand Point (not realizing that that was the location of the Park Headquarters) and a further total distance to Munising Falls via Sand Point, I elected to stay on the trail direct to Munising Falls.

7 Almost to Munising Falls 8 Best View of the Trip
Almost to Munising Falls        Best View of the Trip!

About two hours later and three rest stops, I arrived at Munising Falls to see the most beautiful sight of the trip – my car!

I took the opportunity to brush my face and shave my teeth at the Visitor Center before heading home (via St. Ignace and, yes, another pasty) where I arrived before 9:00 p.m.. I had successfully completed the trip as planned. Another item checked off the Bucket List – a beautiful part of Pure Michigan well worth visiting.

Why do people do these kinds of outdoor adventures when they can involve discomfort? That question is similar to people asking, “Why do you climb mountains?” The flippant answer always is, “Because it is there.” But the better reason is the satisfaction of setting a goal and achieving it. It is the classic story line of man vs. nature, or man against himself. With mountain climbing, there is also the camaraderie of the rope team. In this case, I was alone, so missed the camaraderie of a companion, but was glad for that. I would not have wanted to be responsible for another experiencing the discomforts of dehydration, cold, fatigue and blisters of the trip.

But for me, taking the trip was for a greater, deeper reason: because I still can. It has been only four years since I was confined to a wheelchair for six weeks with a excruciating pinched sciatic nerve, not knowing I would ever be able to walk again without extreme pain. Now I can, and I did!

Tuesday, November 15, 2011

State Employee Retirement and Healthcare Reforms Passed by the House

Governor Snyder and the legislature are intent on tackling the hard long-standing issues regarding our state’s finances. We started with balancing a budget by June 30 and revising the tax codes to eliminate the structurally imbalanced budget status that has bedeviled the state year after year in the past. Of equal importance, however, are the large unfunded liabilities existing due to our government employee retirement and healthcare programs. This post will deal only with the State Employee Retirement System (SERS), leaving the Michigan Public School Employee Retirement System (MPSERS) for a future post once the proposed solution to that problem has been selected.

The unfunded liability under SERS is of two parts: the pension and the healthcare components. The unfunded liability for the pension piece was $3.1 billion as of September 30, 2009, at a 78% funded level. http://www.michigan.gov/documents/orsstatedb/SERS_2010_Published_1-10-11_342741_7.pdf, p. 42. The unfunded liability for the healthcare piece on the same date was $12.6 billion. However, more recent calculations would put that number at either $14.7 or $15.1 billion, depending on the calculation date. http://www.michigan.gov/documents/orsstatedb/SERS_-_Health_2010_-_2011-05-16_355930_7.pdf These amounts are obvious symptoms of a problem crying for a solution.

The Michigan House of Representatives has passed House Bills 4701 and 4702 to amend the State Employees' Retirement Act to require state employees in the defined benefit plan to contribute to the funding of their pensions and introduces a new retiree healthcare reimbursement program. The major provisions include:

  • Within two pay periods after the effective date of the legislation, discontinue the existing 3% contribution all State employees are currently making into the irrevocable trust created in the Public Employee Retirement Health Care Funding Act. Contributions made between November 1, 2010, and the discontinuation date would be refunded on or before May 13, 2012, with interest.
  • Require a Defined Benefit (DB) member (an employee hired before March 31, 1997 who chose to stay in the DB plan instead of moving to the DC plan) to choose whether to

- contribute 4% of salary (pre-tax) to remain in the DB system, or

- not pay the 4% and instead "freeze" his or her compensation and years of service and convert to the Defined Contribution (DC) system for future service. The DC plan consists of a state contribution of 4% of wages, plus a 3% employer match to voluntary employee contributions.

  • Exclude overtime premium payments, or payments for services in excess of 80 hours in a biweekly period, from the calculation of compensation for the purpose of pension payments, for overtime after January 1, 2012.
  • Employees hired before March 31, 1997 will see no change in their healthcare plan as they are fully vested in the retiree healthcare premium program.
  • Allow DC employees hired by the State before January 1, 2012, to choose to

- remain in the graded health care subsidy plan for retiree health care (30% vested after 10 years plus 3% per year thereafter) or

- monetize existing years of service and credit that monetization to a 401(k) or 457 plan payable 100% upon retirement or 50% upon separation prior to retirement with 10 years of service and participate in the following DC type healthcare plan.

  • Eliminate retiree health insurance coverage from the State for any new employee hired on or after January 1, 2012, or for any existing DC employee choosing to convert to the 401(k) or 457 plan for health care. Instead, the State would make a matching contribution up to 2% of the employee's compensation to an appropriate tax-deferred account, such as a 401(k) or 457.
  • In addition, for employees hired on or after January 1, 2012, the State would deposit into a health reimbursement account $2,000 when the employee terminated employment after age 60 with at least 10 years of service, or $1,000 upon termination with at least 10 years of service.
    Senate Fiscal Agency analysis,

The many pension and healthcare benefit obligations threaten our future solvency.  These are structural problems that continue to grow and will soon burden our children and grandchildren.  These proposed changes will save Michigan taxpayers billions and make forecasting our finances easier. At the same time, these bills keep the retirement and healthcare benefits programs strong for state employees, securing their future. 

I am sure that these changes will be opposed by the state employees’ unions and their elected legislators. Nonetheless, these changes can also be viewed as not going far enough. See “Public-Sector Retiree Health Care Benefits are Unreasonable” at http://www.michigancapitolconfidential.com/15971

These changes will have significant fiscal impacts. With the reforms in HB 4701 and 4702, taxpayers would continue to pay for retiree health care costs of current employees and retirees, but in a way that caps future taxpayer costs. The bills also call to begin funding the unfunded benefits being paid to retirees. By changing from the current pay-as-you-go system for the healthcare benefits to a pre-funding approach, the annual required contribution (ARC) under accounting rules must be calculated differently. Prefunding benefits at current rates will require annual contributions between $713 and 743 million a year —much more than the pay-as-you-go amounts (an estimated $420 million in FY 2011-12 for retired government workers). The state would be responsible for paying this for the next 26 years to amortize the unfunded liability. The “unfunded liability” would change from the current $15.1 billion on the SERS balance sheet to $9.4 billion with pre-funding, but this is only due to the difference in interest or “discount rate” assumptions the two methods of payment require according to the accounting rules.

These bills are in the State Senate as of this writing (11/15/11), so we don’t know whether the changes made by the House will be those ultimate concurred with by both houses and signed by the Governor. Stay tuned!

Sunday, November 13, 2011

Proposed Changes to Michigan's Workers' Compensation Law

Workers' compensation provides wage replacement, medical and rehabilitation benefits to men and women who are injured while at work.  It is essentially a no-fault system that requires an employer to compensate a worker for any injury suffered in the course of the worker's employment, regardless of who was at fault.

Interpretation of workers' compensation law has changed over the years because of contradicting Supreme Court decisions.  Michigan's current law is continually in flux because it is predicated on the whim of an ever-changing Supreme Court. Different judges have different viewpoints and interpretations. One of the most outrageous examples involved three different court decisions that changed the meaning of "disability."  This example, and many others, have only increased litigation and hindered job growth.

House Bill 5002 will stabilize and modernize Michigan's Workers' Compensation Act to rely less on judicial interpretations and more on clear, concise legal principles, and thus provide a more stable and fair workers' compensation law in Michigan, both for injured workers and state businesses.

Michigan businesses and the workers who are injured deserve to know exactly what to expect of our important workers' compensation law.  HB 5002 brings clarity and certainty to the process. Any confusion with our workers' compensation law means time and money for the state's job providers and a potentially unfair outcome for injured workers. The time is now to reform this outdated law and help bring Michigan into the 21st century.

Our current workers' compensation law tries to apply 19th century language in a 21st century world.  Michigan needs an updated workers' compensation law that has relevance for today, not yesteryear. Our current workers' compensation law does not take into account the huge medical advances that have occurred over the past few decades, which has bogged down the system.  For example, knee replacements simply aren't discussed under current law, so each example of this type of surgery requires legal evaluation of the knee as if the implant was not even there.

HB 5002 was passed by the Michigan House of Representatives, and as of this writing (11/13/11) has been referred to a Senate Committee. One of the more controversial provisions that will certainly be revisited in the Senate is the question of disability and wage loss. The bill attempts to create greater incentives for injured workers to get back to work as soon as possible, in the highest capacity the injury allows, as follows:

“Under the bill, a limitation of wage earning capacity would occur only if a personal injury covered under the Act resulted in the employee's being unable to perform all jobs paying the maximum wages in work suitable to his or her qualifications and training, including work that could be performed using the employee's transferable work skills.

The bill would define "wage earning capacity" as the wages the employee earns or is capable of earning at a job reasonable available to that employee, whether or not actually earned. For the purposes of establishing wage earning capacity, an employee would have an affirmative duty to seek work reasonably available to him or her. A magistrate could consider good-faith job search efforts to determine whether jobs were reasonably available.

To establish an initial showing of disability and wage loss, an employee would have to do all of the following:

· Disclose his or her qualifications and training, including education, skills, and experience, whether or not they were relevant to the job the employee was performing at the time of the injury.

· Provide evidence as to the jobs, if any, he or she was qualified and trained to perform within the same salary range as his or her maximum wage earning capacity at the time of the injury.

· Demonstrate that the work-related injury presented the employee from performing jobs identified as within his or her qualifications and training that paid maximum wages.

· If the employee were capable of performing any of the identified jobs, show that he or she could not obtain any of them.

The last showing would have to include evidence of a good-faith attempt to procure post-injury employment if there were jobs at the employee's maximum wage earning capacity at the time of the injury.

Once an employee established an initial showing of disability and wage loss, the employer would bear the burden of producing evidence to refute the employee's showing. In satisfying this burden, the employer would have a right to discovery if necessary. The employee could present additional evidence to challenge the evidence presented by the employer.

The bill would define "wage loss" as the amount of wages lost due to a disability. Wage loss could be established, among other methods, by demonstrating the employee's reasonable, good-faith effort to procure work suitable to his or her wage earning capacity. The employee would have to establish a connection between a work injury and reduced wages in establishing the wage loss.” Senate Fiscal Agency Legislative Analysis for House Bill 5002 (Substitute H-2 as passed by the House) http://www.legislature.mi.gov/documents/2011-2012/billanalysis/Senate/pdf/2011-SFA-5002-S.pdf 

Opposition to the bill has used clever sound bites to characterize this as “yet another attack on workers”, but the intent is to create a more business friendly environment to attract and retain job providers, while at the same time, providing reasonable benefits to injured workers.

Modifying Michigan’s Term Limits–Is This a Fight Worth Fighting?

I have introduced a House Joint Resolution (HJR II) proposing an amendment to the state constitution of 1963, by:

1. Term Limits. Amending section 54 of article IV to modify term limits for state representatives and state senators to a maximum of 14 years, to be served in any combination. This shall first apply in 2015 and for state representatives and state senators first elected as either state representative or state senator in November, 2014 or later. This has the effect of including no legislator currently serving so that no one can claim this change is being made for any current legislator’s self-interest.

This change in term limits is consistent with the proposal previously supported by the Bipartisan Freshman Caucus a couple of years ago.

“And members of the House Bipartisan Caucus have earned support from the last three governors. Governor Jennifer Granholm endorsed the no-budget, no-pay plan in her State of the State speech. And in February, Jim Blanchard and John Engler both cited term limits as a major cause for Lansing’s ineffectiveness.

Citizens agree. The 10,000 citizens who participated in The Center for Michigan’s community conversations put term limits at the top of their list of reforms.
. . .
Our strict term limits – “mandated inexperience” in the words of Lansing political sage Richard McClellan – have hobbled Michigan for years.”

“According to the National Conference of State Legislatures, only 15 out of the 50 states currently have term limits. Michigan and Ohio are the two states in the upper Midwest that have term limits. The others are Maine, California, Colorado, Arkansas, Florida, South Dakota, Montana, Arizona, Missouri, Oklahoma, Louisiana, Nevada and Nebraska. In six others states—Idaho, Massachusetts, Oregon, Utah, Washington, and Wyoming—term limits were repealed by legislative or court action.” http://www.peopleandland.org/Learn_More_Documents/MDM-scorecard_final.pdf

Only California and Arkansas laws are as restrictive as Michigan’s term limits. http://www.ncsl.org/LegislaturesElections/LegislatorsLegislativeStaffData/ChartofTermLimitsStates/tabid/14844/Default.aspx

2. Session Length Limit. Amending section 13 of article IV to limit the legislative session to 170 consecutive days and providing for special sessions limited to 30 days and specified purposes with the approval of 2/3 of both houses. In essence, the legislature would need to be done before the end of June (except in extraordinary circumstances, following provisions of the Washington State Constitution). This "part-time legislature" provision would take effect in 2015 to give all candidates running for election or re-election ample notice of what they are running for and be concurrent with the change in term limits.

3. Special Sessions at the call of the Governor. Amending section 15 of article V to modify convening special sessions by the governor. This change brings the Governor’s power in line with the proposed ability of the legislature to call itself into session for a maximum of 30 days.

Note: The limit to session lengths has been included solely to obtain votes at the polls, as I perceive voters will "need to get something". I am under no illusions that a "part-time legislature" would in fact be a part-time job, with committee meetings, issue research and voter consultation continuing during recesses as occur currently. Even the "part-time" legislators I worked with in Washington State with a 105 day session worked virtually full time as legislators, and few could hold other jobs. That said, it would not cause me heartburn to see this provision stripped out of the legislation during the legislative process. The idea, however, deserves to be fully vetted.

Some have labeled this proposal dead on arrival, but it is a serious issue that we need to keep talking about, although as a "good government" issue, it is not one to rise to the level of passion. See “Term Limits Here to Stay” by Tim Skubick at http://domemagazine.com/skubick/sku111111. However, while we are in the process of “fixing Michigan”, it is prudent to cure the unintended consequences of the term limits enacted by Michigan voters amending the Constitution in 1992.

“Term limits’ destructive impacts — most notably the erosion of institutional knowledge, policy expertise, and trust in the Capitol — are of deep concern to just about any interest group with any regular contact with legislators. Even the lobbyists who arguably profit most from the constant changeover in Lansing acknowledge they lose because they can rarely accomplish anything for their clients.” “Bipartisan freshmen demand movement on term limits and budget reforms” at http://www.thecenterformichigan.net/big-news-a-shift-in-public-opinion-on-michigan-term-limits/

“The problems with term limits are many. They make it difficult for lawmakers to learn complex issues or master the arcane rules of legislating. The short tenure in office means lobbyists and long-time staffers become the keepers of institutional memory and wield greater influence than they did before -- the opposite of what voters hoped for when they created ever-freshening bands of "citizen legislators."

In addition, term limits have fueled politics – as if politics needed fueling. Lawmakers in the Senate, for instance, worry that termed-out colleagues in the House may come gunning for their jobs. That can make them watch out for their own interests more than the public interest.” http://www.mlive.com/opinion/grand-rapids/index.ssf/2011/11/expanding_term_limits_in_michi.html

Keen observers also not the lack of time for legislators to develop relationships amongst themselves and even rivalries for higher office between State Representatives within the same State Senator districts as problems.

So why have legislators been reluctant to support a change? The State of the State Surveys conducted by researchers in the Office for Survey Research in the Institute for Public Policy and Social Research specializing in policy, leadership and research within Michigan State University's College of Social Science has found strong general support for term limits:

Winter 2004             72.0%
Fall 2004                 78.5%
Spring 2006             72.9%
Winter 2008             75.2%

However, a State of the State Survey conducted in May and June, 2009 probed deeper into the question.

“Under Michigan’s Constitution, legislators can serve three full terms in the Michigan House and two full terms in the Michigan Senate, a total of 14 years. This spring, SOSS asked: What about keeping the overall limit at 14 years, but allowing all 14 to be in the House, or all 14 in the Senate, or any combination? 53.7% Favor, 41.7% Oppose” http://www.ippsr.msu.edu/SOSS/ElectionsSOSS52.pdf

“When we look beneath the surface, we are able to see things that wouldn’t be apparent if we asked the question in the generic way,” said Dr. Charles Ballard, survey director and MSU economics professor. http://www.ippsr.msu.edu/SOSS/TermLimitsRelease.pdf

The Center for Michigan calls this “Big News: A shift in public opinion on Michigan term limits” at http://www.thecenterformichigan.net/big-news-a-shift-in-public-opinion-on-michigan-term-limits/

U.S. Term Limits President Phil Blumel immediately jumped to the defense of term limits by blasting me with “a Michigan-wide poll on term limits conducted in 2008 found 66% support among voters for the current state term limit law. It is the height of arrogance to demand that voters provide him with the opportunity to be in the state House of Representatives for a longer time because he can’t figure out how to do the job.”
. . .
It is truly amazing that a newly elected politician would become so attached to power that he would seek to create a more permanent political class in Lansing.” http://www.termlimits.org/files/MI%20release%20110311.pdf

Blumel reacted without even knowing the content of the proposal which prevents any current legislator from benefiting. And, he certainly did no research into how prepared I am to fulfill the role of legislator. Many legislators may shy away from considering such a controversial topic when they will be faced by such knee-jerk reactions.

The ability of the current legislature to “get things done” may seem to undercut the argument for modifying term limits. Whether my constituents agree with what we have done, what I hear time and again is, “at least you are getting things done”. Obviously, Republicans having majorities in both the House of Representatives and the Governorship has aided the ability to address longstanding issues that evaded solution earlier.

Nonetheless, is it good government when few of the 63 newly elected State Representatives had little opportunity for input on the many changes we made earlier this year? Despite the many talents of the incoming legislators, both Republican and Democrat, we had little choice but to press a red or green button. The process was far more dominated by the executive branch, the lobbyists and legislative leaders than would have been the case if there had been more experienced legislators.

Despite an apparent lack of support from fellow legislators, I introduced the HJR anyway. I believe a leader is one who works for improvements even before he knows whether there is support for them. I prefer to base my decisions on facts and information, rather than polls and surveys.


Bullying Policies vs. First Amendment Right of Free Speech

In my blog posting of November 10, entitled “House Passes Matt's Safe School Law”, I announced the Michigan House of Representatives passage of House Bill 4163 which requires school districts to develop bullying policies. I voted for the bill, but did so with reservations, due to its implications for restrictions on our free speech rights guaranteed under the U.S. Constitution’s First Amendment.

I expect this law, if concurred with by the Michigan Senate and signed by the Governor, to face serious legal challenges. As George Will eloquently states in his article, “Free Speech Rights: It’s All in the Interpretation” in today’s AnnArbor.com newspaper, p. A18, the right to free speech is not entirely absolute, because there are the unprotected speech areas of defamation, obscenity, fraud, incitement and speech integral to criminal conduct. Nonetheless, the right of free speech is carefully protected, even in the public school setting.

“Students do not, the Court tells us in Tinker vs. Des Moines, "shed their constitutional rights when they enter the schoolhouse door." But it is also the case that school administrators have a far greater ability to restrict the speech of their students than the government has to restrict the speech of the general public. Student speech cases require a balancing of the legitimate educational objectives and need for school discipline of administrators against the First Amendment values served by extending speech rights of students.

In Tinker, perhaps the best known of the Court's student speech cases, the Court found that the First Amendment protected the right of high school students to wear black armbands in a public high school, as a form of protest against the Viet Nam War. The Court ruled that this symbolic speech--"closely akin to pure speech"--could only be prohibited by school administrators if they could show that it would cause a substantial disruption of the school's educational mission.” http://law2.umkc.edu/faculty/projects/ftrials/conlaw/studentspeech.htm

School districts will need to carefully draft their bullying policies to be sure that prohibited speech would “cause substantial disruption of the school’s educational mission.”

Further, a statute (or any school policy enacted) that is vague (i.e., a person of ordinary intelligence cannot distinguish permitted from prohibited activities) is unconstitutional on its face and can be successfully challenged even by those who could be regulated if the statue (or school policy) were clear and narrowly drawn. The difference between punishable bullying and protected speech is a very gray area. What is the difference between something someone does not like and something hateful? Tone of voice? How menacing you look? How different you look? How close you stand? How many you communicate with? Very tough questions that will likely employ attorneys for years.

Thursday, November 10, 2011

House Passes Matt's Safe School Law

Michigan's State House of Representatives approved today House Bill 4163 which amends the Revised School Code to include a section known as Matt's Safe School Law.

The State Board of Education asked districts to adopt anti-bullying policies in 2001, and issued a model policy for them to emulate in 2006 in response to ten reported cases of bullying-related suicides in Michigan in the last decade.

Michigan is one of three states without anti-bullying laws. The Senate passed SB 137 on November 3 which has received national attention. The House bill does not include the inflammatory language from the Senate Bill known as the "religious exemption". We are taking a new approach. This bill does not give anyone an excuse to bully anyone else.  It protects every student -- and their rights. The religious exemption is legally unnecessary and would only cause confusion.  The First Amendment protects the people’s right to talk about their religious faith or moral beliefs and always will.  No bill can undo that, and no bill could add to it.

The House bill also does not enumerate specific groups for special protection. That is, the bill does not include language specifying race, religion, socio-economic status, disability or sexual orientation in the definition of bullying. Everyone is equally protected from bullying because bullying anyone is wrong.  When you start listing reasons why someone can’t be bullied, you open the door to reasons they can be.

This bill requires schools to come up with solid plans within six months of the bill becoming a law to prevent bullying and create safe learning environments equally for all of our children.

The bill creates a three step process for public school districts, ISDs and PSAs in Michigan:

  • Districts must hold at least one public meeting about a potential anti-bullying policy.
  • Districts will then approve and adopt a policy tailored to their students.
  • That plan will be submitted to the Michigan Department of Education.

The bill defines bullying as abuse that interferes with the victim's ability to take part in education opportunities and other benefits and programs offered by the school.  It includes actions that place victims in reasonable fear of physical harm or emotional distress. The policy applies on school premises, school buses and off-site school activities. Existing school policies are grandfathered in if they meet the requirements of the bill. 

Every student deserves the opportunity to learn and grow in a safe environment, without the fear of physical and emotional harm.  We can give them that opportunity with this bill.

This bill brings many different groups with many different priorities together to do the right thing and put an end to bullying.  We are finding consensus and coming together to get this done for Michigan's children. Our children deserve no less.

Sunday, November 6, 2011

Efforts to Delay Michigan’s Natural Gas Development Would Inhibit Job Creation in Michigan

Much excitement exists for the potential massive expansion of natural gas production in Northern Michigan in the Utica and Collingwood shale formations. Energy companies in May, 2010 spent $178 million at a single auction to buy oil and gas leases for state-owned land, more than seven times the state's previous auction record of $23.6 million set in 1981.

This flurry of interest was spurred by the results of a test well owned by Petoskey Exploration LLC, a subsidiary of Canada-based Encana Corp., a leading North American natural gas producer which produced about 2.5 million cubic feet daily in natural gas in its initial 30-day test period.

Energy companies have also acquired many mineral leases on private lands, all in anticipation of what new horizontal drilling and hydrologic fracturing technologies can squeeze from the Utica Shale, a formation beneath much of northern Michigan. (The Utica and Collingwood shale formations are not the only gas producing shale in Michigan, as the gas industry has been exploiting the shallower Antrim Shale for many years, which has produced more than 2.6 Tcf of gas since development began.)

Similar deposits in Ohio are estimated to create more than 200,000 jobs, increase Ohio’s economic output by $22 billion and increase tax revenues by more than $478 million per year according to an independent study commissioned by the Ohio Oil & Gas Education Program. The hope is that Michigan could benefit much the same.

“Michigan DEQ [Department of Environmental Quality] officials today announced a series of new regulations for the oil and gas industry that will increase public disclosure and better protect public health and the state's natural resources.

Hydraulic fracturing, or ‘fracking,' is a process used to extract natural gas by pressurizing underground wells with water and sand and chemicals to break-up formations and maximize well production. The process came under national scrutiny in recent months as other states discovered environmental damage from the ways that certain operators disposed of used ‘fracking fluid' and constructed their wells.

Fracking began in the 1940s. Michigan oil and gas operators have used the system on nearly 12,000 wells around the state since the 1960s without any instance of environmental harm from the fracturing process. Michigan's environmental safety record is attributable in large part to the state's tight standards for well construction and water disposal.

. . .

In recent Congressional hearings, Michigan has been lauded as a regulatory model for responsible production of gas and oil reserves. Today's announcement is part of the state's effort to further ensure environmental protection and public transparency.” http://www.michigan.gov/deq/0,1607,7-135--256844--,00.html, May 25, 2011.

The U.S. Environmental Protection Agency (“EPA”) in a 2004 study concluded, “. . that there was little to no risk of fracturing fluid contaminating underground sources of drinking water during hydraulic fracturing of coalbed methane production wells.” http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/wells_hydrowhat.cfm

The EPA is doing an exhaustive study about fracking, with the preliminary report expected in late 2012 and a final report sometime in 2014. See http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/index.cfm

Meanwhile, a group of Michigan legislators have filed House Bills 5149, 5150 and 5151 with the intent to prevent any permit being issued that allows fracking in Michigan until well after the EPA study is concluded. A Michigan study would need to consider the EPA study, engage an advisory committee, hold public hearings on its proposed study findings or report, wait for the advisory committee’s recommendations, etc. 2015 is likely the earliest date that any permit could be issued under that timeline, and perhaps well past 2015.

We all want to protect our environment. And it makes sense to keep a keen eye on the study that the EPA is conducting. However, when Michigan needs to develop jobs for its citizens and produce revenue for the state to pay for education and other important needs, it seems unnecessary to delay increased production of our domestic energy resources when the Michigan DEQ, our environmental watchdogs in the state, believe it is safe to proceed under our rigorous current regulations.

Update December 9, 2011:

Additional support for the development of our resources using fracking comes from Pennsylvania, with the following report:

EPA: Drinking Water in Dimock, PA Uncontaminated by Fracking

December 5, 2011 at 2:10 pm

“EPA’s findings comport with administrator Lisa Jackson’s previous statements regarding the effects – or lack thereof – of hydraulic fracturing on drinking water. Earlier this year, Jackson told a House committee that she was “not aware of any proven case where the fracking process itself has affected water.”

Scott Perry, director of the Pennsylvania Department of Environmental Protection’s Bureau of Oil and Gas Management, echoed that position. “There has never been any evidence of fracking ever causing direct contamination of fresh groundwater in Pennsylvania or anywhere else,” Perry said in April.”

It is noteworthy, however, to see APNewsBreak: EPA theorizes fracking-pollution link. where it is reported that,

“The U.S. Environmental Protection Agency announced Thursday for the first time that fracking — a controversial method of improving the productivity of oil and gas wells — may be to blame for causing groundwater pollution. . . .

The EPA said its announcement is the first step in a process of opening up its findings for review by the public and other scientists.

"EPA's highest priority remains ensuring that Pavillion residents have access to safe drinking water," said Jim Martin, EPA regional administrator in Denver. "We look forward to having these findings in the draft report informed by a transparent and public review process."

The EPA also emphasized that the findings are specific to the Pavillion [Wyoming] area. The agency said the fracking that occurred in Pavillion differed from fracking methods used elsewhere in regions with different geological characteristics.

The fracking occurred below the level of the drinking water aquifer and close to water wells, the EPA said. Elsewhere, drilling is more remote and fracking occurs much deeper than the level of groundwater that would normally be used. . . . “

Nonetheless, we can expect the environmental groups jumping on this “possible” link as “PROOF” that fracking should not be used. In fact, the article goes on to say, “Environmentalists welcomed the news of the EPA report, calling it an important turning point in the fracking debate.” It sounds strange for an environmental group to celebrate possible pollution. But, it is all politics….. – and it does aid the environmental groups’ fundraising efforts.

For more information, see:

  1. Record amount spent on oil, gas leases: Energy companies spend $178 million at single auction, Traverse City Record-Eagle, May 8, 2010, http://record-eagle.com/local/x1522096090/Record-amount-spent-on-oil-gas-leases
  2. Hydraulic Fracturing of Natural Gas Wells in Michigan, Updated May 31, 2011, http://www.michigan.gov/documents/deq/Hydrofrac-2010-08-13_331787_7.pdf
  3. Hydraulic Fracturing in Michigan, http://www.michigan.gov/deq/0,4561,7-135-3311_4111_4231-262172--,00.html 
  4. Hydraulic Fracturing in Michigan, http://www.mogpef.org/docs/Hydraulic%20Fracturing%20v9_2%20FINAL.pdf
  5. Horizontal Wells – Hydraulic Fracturing in Michigan, http://www.mogpef.org/docs/Fact%20Sheet%209_22%20new.pdf
  6. For a pictoral history of gas wells in Michigan by five year increments, see http://www.michigan.gov/deq/0,4561,7-135-3311_4111_4231-146189--,00.html 
  7. Map showing the distribution of the Utica-Collingwood Activities and a
    List of Utica-Collingwood wells
  8. Research & Commentary Hydraulic Fracturing in Ohio, by John Monaghan, Heartland Institute, October 24, 2011, http://heartland.org/policy-documents/research-commentary-hydraulic-fracturing-ohio

Thursday, November 3, 2011

Statement in Support of Governor Snyder’s Infrastructure Message

Co-Chair of Bipartisan House Work Group on Transportation will help move proposal forward

LANSING (10/26/11) – State Rep. Rick Olson (R-Saline), co-chair of the bipartisan house work group on transportation funding today issued the following statement on Governor Rick Snyder’s message on infrastructure and transportation unveiled this afternoon:

"I was pleased to hear Governor Snyder being bold and proposing up to $1.4 billion of new revenue to maintain our roads and bridges. The report Representative Roy Schmidt and I released as the Transportation Funding Work Group showed that we will need to spend at least $1.4 billion more on our roads and bridges to attain and maintain them 85% to 95% good or fair condition. As the report says, " The bottom line is: if the investments projected by these models are not done, either the deferred costs of maintaining our roads will be much higher OR we choose to accept lower quality roads. From a business perspective, the set of investments recommended is the lowest long-term costs of maintaining our roads."

I hope that my colleagues in the legislature will join with me in supporting Governor Snyder’s recommendation protecting citizens’ pocketbooks in the long-term, keep families safe on our roads, and creating good-paying jobs right now. I look forward to working with the Snyder administration and my fellow state leaders to move this bold solution forward in the legislature.

I am sure the legislature will want to fully vet this set of proposals just as it does every other executive branch proposal. But, based on numerous conversations I have had with Senators and Representatives from both sides of the aisle - both Republicans and Democrats - I sense a genuine desire to finally cure our problem of crumbling bridges and potholed roads on a bipartisan basis. After all, I don't recall ever hitting a Democrat pothole or a Republican pothole - only non-discriminating, non-partisan potholes.

Many of us in the legislature wish to be fiscally responsible, and not run budget deficits as is being done at the federal level. The simple truth is, to the extent that we fail to act and defer maintenance on our roads and bridges, that is exactly the same as pushing the expense onto future taxpayers - our children and grandchildren. I consider that irresponsible and feel we need to raise more revenue for our road and bridges, as much we know no one likes additional revenue proposals, even if they are user fees.

Some people may like this set of proposals because of the short-term construction jobs it will create. But I look upon it as a business decision - if we don't spend at least $1.4 billion more on preserving our roads and bridges, we will pay much more in the future. You know, "Pay me now, or pay me more later." as the oil change add says. That just seems like simple, American common sense.

One study says we are already paying for our bad roads, with an estimated additional cost of $370 per year per car to repair our cars' blown tires, bent rims, wheel alignments, etc. Last spring, I received an e-mail from a lady saying that she had had 14 cars turn into her driveway just that week to change their blown tires due to the potholes in Samaria Road.

The Governor's message also contained some proposed "best management practices" that are designed to make sure we are getting value for our taxpayer money spent. I am sure those will be carefully studied and perhaps expanded upon to make sure we are getting the biggest bang for our buck. Our taxpayers deserve no less."

Wednesday, November 2, 2011

Choosing our Future: Where Does Transit Fit in Washtenaw County?

Last summer I had the opportunity to do some field research in major international cities to use their transit systems. I observed the ease in getting about to all the major attractions. I also noticed that the people in the cities did not suffer from the obesity epidemic we face here in the U.S. with our reliance on our cars. These observations were in addition to the transit oriented development I had seen previously around Washington, D.C. Hmm, this set me to thinking about the future of our state and especially of Washtenaw County.

Michigan has been in a deep recession. It is hard to think long term when facing the daunting challenges of the immediate future. Nonetheless, we must begin to prepare for the future now, as it certainly will arrive whether we prepare well for it or not. The United States' population is expected to grow by 100 million people in the next 40 years. With Michigan's population of just under 10 million, that is equivalent to 10 Michigans. Michigan will get its share of that growth in population. Michigan will grow again! But, where is that growth most likely to occur?

I expect Washtenaw County will be one of the preferred places in Michigan to live. The Ann Arbor area has the high level of intellectual talent that the knowledge based businesses of tomorrow are looking for. Google locating an office here is just one example of that. The University of Michigan and Eastern Michigan are important attractors. Our world-class medical facilities are invaluable job creators. Washtenaw County has rich resources in the arts. The county also has a very livable environment. Pittsfield Township, for example, has multiple walking and biking trails connecting neighborhoods. Two major freeways intersect in the county. It is only a very short ride to the airports at Detroit Metro and Willow Run.

What Washtenaw County does not have is a world-class transit system. The Ann Arbor Transportation Authority (AATA) with their "Transit Vision for Washtenaw County" seeks evolve our existing bus system to create that. Gov. Snyder's message regarding transit envisions regional connectors to Detroit Metro Airport, Dearborn and Detroit, as well as increased speed of rail passenger service west to Detroit. Such systems will induce high-density development around those systems as has happened in city after city.

These steps to prepare for the future are not cheap, but failure to prepare could be even more costly, in terms of more expensive infrastructure in the future with urban sprawl gobbling up our countryside, congestion on our streets and highways and opportunities lost for failure to attract the "millennium generation" who are looking for living environments that provide such amenities.

The choice is ours - prepare for the future or allow the future to happen to us. I prefer the proactive approach, to maximize the opportunities for current residents, and for our children and grandchildren. We can not only prepare for the future, we can create our future.