On September 20, the Michigan Court of Appeals issued an opinion regarding the calculation of pension benefits in the case of Macomb Co v AFSCME Council 25 Locals 411 & 893 (Docket No. 296416, for publication), affirming the Michigan Employment Relations Commission's (MERC) ruling in favor of the unions.

Macomb County has an Employees Retirement System Ordinance, which provides pension benefits for employees who are members of the system. Under the ordinance, an independent retirement commission decides (among other things) which mortality tables are used to calculate pension benefits. Since 1982, the County had used mortality rates of 100% female/0% male to calculate joint and survivor pension benefits. However, in 2006, the County's retirement commission adopted a new mortality table with rates of 60% female/40% male, resulting in lowering of monthly retirement benefits for those under the joint and survivor pension. The employees (charging parties) demanded bargaining over this change. The County rejected the demand, and the charging parties filed Unfair Labor Practice charges with MERC, asserting violation of the Public Employee Relations Act (PERA).

MERC ruled that, under PERA, the County has a duty to bargain over the method by which the joint and survivor pension benefits are determined, and that the 24-year practice of using the 100% female mortality table constituted a tacit agreement that the practice would continue where a key term in the ordinance ("actuarially equivalent") was undefined and ambiguous. MERC found that this unilateral change in the mortality table used to calculate benefits constituted an Unfair Labor Practice under PERA.

The County appealed MERC's decision to the Michigan Court of Appeals, arguing that it had no duty to bargain over which mortality table is used because actuarial assumptions are the sole responsibility of the independent retirement commission established by the ordinance. The Court of Appeals, in a 2-1 decision, rejected that argument, and agreed with MERC that the County "violated [its] duty to bargain when, without bargaining, they changed the method used to calculate joint and survivor pension benefits under the parties' collective bargaining agreement."

Judge Markey dissents, and would hold that, under the County's ordinance, mortality tables and actuarial assumptions are not a mandatory subject of bargaining under PERA but, even if they are, these matters are covered by the collective bargaining agreement already in place.

The County has 42 days from the date of the opinion to seek leave to appeal from the Michigan Supreme Court.

For more information about collective bargaining agreements and PERA, please contact Mark Koerner at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

The Michigan Court of Appeals issued a published opinion on the matter of People v Bylsma on Tuesday, September 27, 2011.  According to the opinion, a registered primary caregiver can only grow or tend plants for those registered qualifying patients that are connected to the caregiver through the registry system.

The Court denied the immunity and affirmative defense privileges to the Defendant, who was a registered primary caregiver for two registered qualifying patients.  Defendant owned or operated a locked facility with 88 plants, some of which belonged to other caregivers or patients.  These caregivers and patients testified that the Defendant was assisting them in the growth process as they were novice.  It was claimed that the plants were identifiable by tags and particular strands as to which one belonged to whom.  Court's opinion was based on the finding and analysis that the Michigan's Medical Marijuana Act did not authorize possession of the plants by more than one person, and that person could either be the patient or the caregiver he was connected through the registry.

This recent opinion by the Court of Appeals is likely to add to the list of opinions that have deeply affected both the medical marijuana users and the industry that have flourished around it.

The opinion can be found at People of Michigan v Bylsma.

On Saturday, September 24, 2011, Governor Snyder signed Senate Bill 7, making it the law of the State.  Beginning on Jan. 1, 2012, a public employer such as a city, county or township will be limited from paying more than $5,500 for health benefits annually for a single employee, $11,000 for an employee plus spouse or $15,000 for family coverage. These amounts are tied to inflation based on the medical component of the Consumer Price Index.

Alternatively, a public employer may split the cost of medical coverage with its employees, who will have to pay a proportion of their health insurance costs. Under this option, a public employer may pay no more than 80 percent of the annual cost of medical benefits.

A local unit of government that is held to this new standard may exempt itself from these requirements with a two-thirds vote of its governing body.