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Lansing — Gov. Gretchen Whitmer last week stripped protection for state employees for speaking with state legislators when she ruled the language unconstitutional in 13 department budgets.

The whistleblower shield language was among the 72 state budget items that Whitmer ruled unenforceable. Meant to be an additional layer of protection for state workers, the language has been removed by past governors for several years, but always included by the Legislature in the final approved budget, said Sen. Tom Barrett, R-Charlotte. 

Barrett, who served two terms in the House before getting elected to the Senate last year, said he’s been approached by state employees with concerns in the past about possible retribution and has been able to assure them “there are protections in place.”

“What is the public benefit of taking this out of the state budget?” said Barrett, who helped to develop the budgets for the Department of Military and Veterans Affairs, state police, judiciary and corrections. ‘It doesn’t make any sense to me at all.”

The language killed by Whitmer, first reported by Gongwer News Service, violated the separation of powers in Michigan’s constitution, Whitmer wrote in her letter explaining the change last week. The state already has several layers of existing whistleblower protections; any additional ones “must comply with the Michigan Constitution,” said Whitmer spokeswoman Tiffany Brown. 

Attorney General Dana Nessel has opined and state courts affirmed that the provision violated the separation of powers in the state constitution “because a department’s disciplinary policy is a core executive function,” Brown said. 

Nessel’s opinion regarding a state agreement with Enbridge earlier this year also established that a bill whose title is different than its content and purpose is unconstitutional, Brown said. 

“Most bills that included this provision had as their purpose to make appropriations,” Brown said. “This provision, however, did not make an appropriation nor create conditions on the spending of appropriated funds, and therefore violated this constitutional requirement.”

Any language that can ensure an employee's protections when they are trying to provide useful information to legislators is paramount, said Rep. Shane Hernandez, chairman for the House Appropriations Committee. 

"As legislators, particularly on the appropriations committee, our jobs is to appropriate funding as efficiently as possible," said Hernandez, R-Port Huron. "Who better to have information on that from than the employees who are actually delivering those programs.”

The language in the state budgets banned departments from taking “disciplinary action against an employee for communicating with a member of the Legislature or his or her staff.”

The Michigan Department of Transportation had an added clause among its protections that was also struck out by Whitmer, banning the department from requiring “state employees of the department to report communications with a legislator or legislative staff.”

The state already has the Whistleblower Protection Act in place. Whitmer, shortly after taking office, also signed an executive directive requiring state employees to report immediately to their director any “imminent threat to the public health, safety or welfare.” 

The order, largely seen as a means to address shortfalls that resulted in the Flint water lead-contamination crisis, required department directors to address the imminent threat or notify the governor’s chief compliance officer. If directors felt the threat wasn’t being addressed, the directive required them to go directly to Whitmer.

The language in the state budgets would have increased the layers of protection on state employees and recognized the Legislature’s oversight role in state government, while maintaining the “very delicate balance of power between the legislative and executive branches,” Barrett said. 

The governor’s role as chief executive for state government “doesn’t give her limitless authority over each of these state employees,” he said. 

“I think the governor needs to ask herself if this is really the side of this issue she wants to be on,” Barrett said. 

eleblanc@detroitnews.com 

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