When Gov. Rick Snyder took a seat at the Burton International Academy in Detroit last week, a sense of déjà vu hung heavy in the air.
With emergency manager Jack Martin's 18-month term about to expire in two days, the stage was set, at least theoretically, for the elected school board to regain some measure of power. Instead, Snyder came to the elementary school on Detroit's west side to announce that Martin was stepping down and being replaced by Darnell Earley, the appointed emergency manager in Flint.
In other words, democracy was being put on ice — for the fourth time in less than six years.
First there was Robert Bobb, appointed by then-Gov. Jennifer Granholm to be the district's emergency financial manager in 2009.
Then came former General Motors executive Roy Roberts, appointed by Snyder to be the district's "emergency manager," a new title with greatly expanded powers created when Public Act 4 was signed into law in 2011.
After voters went to the polls and rejected that statute as too far-reaching in a November 2012 referendum, the state legislature and Snyder hastily enacted PA 436, a replacement law containing many of the same provisions as its predecessor.
Snyder said at the time that the new law incorporated changes specifically designed to address a major voter concern about PA 4, namely that it placed too much unchecked power in the hands of the unelected officials given unprecedented authority over financially struggling cities and school districts.
"This legislation demonstrates that we clearly heard, recognized and respected the will of the voters," Snyder said in a statement announcing the signing. "It builds in local control and options while also ensuring the tools to protect communities and school districts' residents, students, and taxpayers."
The governor's reference to "local control and options" included a key provision of PA 436 that appeared to set a limit on the amount of time a city or school district would remain under state control.
"If the emergency manager has served for at least 18 months after his or her appointment under this act, the emergency manager may, by resolution, be removed by a 2/3 vote of the governing body of the local government," according to the law.
In fact, after opponents of PA 436 filed a federal lawsuit challenging its constitutionality, lawyers from the state attorney general's office defended its legality, in part, by arguing that "there was a clear and decisive 18-month limit to emergency management if a public body chose to remove an EM."
That's according to court documents filed by attorney Herb Sanders, who represents the school board.
Here's why that's important:
In March 2013, when PA 436 took effect, Roberts — who was already controlling the district's purse strings as the appointed "emergency manager" — automatically became an emergency manager. Along with the greatly expanded powers that brought, the clock started ticking on the amount of time he could hold the position.
After Roberts resigned last May, Martin was appointed to fill his seat. Then in September 2014 — as the 18-month anniversary of Roberts' appointment approached — the board of education voted to remove Martin. When Martin refused to step aside, a lawsuit was filed.
The key question was this: Did the 18-month provision apply to the length of time a district would have to be under emergency management, or did it apply to the time a specific emergency manager could be in place?
Instead of contending that the impact of emergency managers was mitigated by the fact that they could be removed after 18 months — as they apparently did when defending the law before a federal judge — lawyers from Attorney General Bill Schuette's office made the argument that, according to the language in PA 436, the clock could be re-set if an emergency manger left office before their term expired and a replacement was appointed.
(Because there's ongoing litigation surrounding the issue emergency manager law, a spokesperson for Schuette declined to comment about the allegation that the state's attorneys essentially argued both sides of the same issue in two different courts.)
Could it really be that the state could keep control in perpetuity?
That question was answered by Ingham County Circuit Court Judge Joyce Draganchuk, who ruled in October 2014 that the 18-month clock could be re-set if an emergency manager stepped down before his term expired and a replacement was appointed.
"Maybe [the law] was written in a disingenuous way because I do agree with counsel [representing the school board] that it would allow, the way it is written clearly, it would allow the governor to appoint a new emergency manager every 17 months," said Draganchuk.
And so, two days before his term was set to expire, Martin, offering no reason, resigned, with Earley appointed to take his place.
What makes all this even more convoluted is Snyder's recent admission that state control of Detroit's schools has failed to produce the financial stability and academic achievement state officials claimed it would bring.
"I don't think this has been a very good exercise of how the emergency manager law should work, the case of Detroit Public Schools," Snyder told the Detroit Free Press last December. "We've been there too long."
But, at least in his view, still not long enough.
Curt Guyette is an investigative reporter for the ACLU of Michigan. His work, which focuses on Michigan's emergency management law and open government, is funded by a grant from the Ford Foundation. You can find more of his reporting at aclumich.org/democracywatch. Contact him at 313-578-6834 or [email protected].
