Judge freezes COVID hazard pay approved by Shiawassee commissioners

Flint — A Genesee County judge has ordered a freeze on COVID-19 hazard payments to dozens of Shiawassee County employees after a lawsuit alleged the county board violated Michigan's Open Meetings Act while approving the payments. 

Circuit Judge Mark Latchana said Monday he will sign an order granting a preliminary injunction pulling back the payments until the Shiawassee County Board of Commissioners meets again to reconsider the appropriation. 

The board's next meeting is Aug. 12.

It is not yet clear whether Latchana's order will apply to all COVID-19 hazard payments — about $557,000 to 250 county employees — or only to those payments that were above $5,000. 

The decision comes amid furor over the Republican board's July 15 decision, which resulted in $65,000 in hazard pay for the commissioners themselves, including a $25,000 bonus for the commission chair. 

Shiawassee County Prosecutor Scott Koerner issued a statement Friday saying he would return his pay and opined that the Michigan Constitution bars additional compensation for elected officials “after services had already been rendered,” the Argus-Press in Owosso reported. 

Koerner did not immediately respond to questions regarding the potential for a criminal investigation into the matter. Attorney General Dana Nessel's office said the office would not become involved unless there were a criminal complaint from which Koerner recused himself and asked for a special prosecutor.

After Koerner's statement Friday, Shiawassee County commissioners said they would also return their $65,000 in bonuses.

But the suit before Latchana argued the entire distribution should be invalidated because the board discussed the money almost entirely during closed session, in violation of the Open Meetings Act. Latchana was assigned the case after a Shiawassee County judge recused himself.

"The problem is they did all their deliberation leading up to that vote in closed session when they did not have a reason for doing so," said Philip Ellison, the lawyer for plaintiff Nicole Ruggiero.

Ellison argued the money should be pulled back in case a court or the board should reconsider the decision and have to recall money that's already been spent by employees.

"We hope every front-line worker who helped with the pandemic gets a reasonable and thoughtful hazard pay; we're not against supporting our community members and those who helped us," Ellison said. "What we don't support is those who are trying to take advantage of a pool of money that they're not entitled to."

Thomas Beindit, who represented the county at the hearing, argued there was discussion and a vote in public on the distribution. 

"They deliberated, they discussed this matter in open session ... and then they voted," Beindit said. 

But Commissioner Marlene Webster testified commissioners were only told in closed session that they'd be approving an average of about $2,000 per employee. There was no breakdown of how the payments would be distributed, she said. 

"There was not a single mention of commissioners" pay, Webster said.

Additionally, once the commission re-entered open session to vote, the in-person public participants had left the meeting, Webster said. A livestream of the meeting continued.

Regardless of the board's reconsideration of the payments, Ruggiero and Ellison plan to continue pursuing their open meetings lawsuit and add several more counts and alleged violations, Ellison said. 

"You can't violate the basic process and transparency laws of our state without there being some kind of repercussion," Ellison said. 

eleblanc@detroitnews.com