MIOSHA appeals process, record retention policies targeted by House Oversight Committee

Beth LeBlanc
The Detroit News

Lansing — The Michigan House Oversight Committee on Thursday launched what is expected to be a multi-hearing review of business interactions with the Michigan Occupational Safety and Health Administration, including a controversial case involving the city of Port Huron.

A citation against the city was dismissed after a lengthy appeal process found documents pertinent to the case had been destroyed. 

Lawmakers zeroed in on the policy that allowed the documents to be destroyed as well as an appeals process that, in many cases, makes it more expensive to appeal than to admit guilt and pay a fine — regardless of a business's ultimate guilt or innocence. 

"There’s a business decision that needs to be made by most businesses cited by MIOSHA: Is it worth the fight?” said Port Huron City Manager James Freed. He estimated the city spent $15,000 to $20,000 fighting the citation for more than a year, though officials were offered a settlement of about $3,000 shortly after the $6,300 citation was issued.

"I informed him that we will never pay, ever, and we will never plead guilty to something we didn’t do," Freed said.

Port Huron's city manager testified for nearly an hour before the committee about the city's interactions with the agency related to a $6,300 citation in August 2020 that was eventually dismissed. Freed noted that the inspector in part based his findings on a "general feeling" that the city was digressing from following COVID-19 policies.

In a document released after the hearing, MIOSHA said it issued 99 general duty clause citations related to COVID-19 during the pandemic. Thirty-four employers contested their citations and about half settled with the agency. Port Huron was one of six whose appeal resulted in a dismissal.

"The dismissal or settlement of MIOSHA citations during the appeal process is a demonstration that the process is working as intended to provide employers a fair and objective review of their citations," MIOSHA Director Bart PIckelman said in prepared remarks shared with The Detroit News.

Port Huron City Manager James Freed testified before the Michigan House Oversight Committee on Thursday as the panel launched what is expected to be a multi-hearing review of business interactions with the Michigan Occupational Safety and Health Administration. A citation against the city of Port Huron was dismissed after a lengthy appeal process found documents pertinent to the case had been destroyed by an agency inspector.

Before the city had a chance to appeal the August citation, the state had sent a press release announcing Port Huron and several Michigan businesses had been cited for COVID violations.

Freed called the press release "humiliating" and an insult to the workers of Port Huron who were following COVID guidance. He acknowledged some of the businesses cited couldn't fight the citation in the same way Port Huron could. 

"We were never looking for a fight," Freed said. "Coming to Lansing to shed light on misconduct of a state agency, it's pretty intimidating. We fear retaliation. A lot of small business owners probably won't challenge it because if you challenge MIOSHA, what would happen?"

The city of Port Huron has maintained it is not guilty of the violations listed in the citation issued by the agency in summer 2020, an argument buoyed by the inspector himself who noted during his inspection that he had not seen any clear violations. Even if the city were guilty, Port Huron argued in its appeal, the citation should be overturned because the Michigan Supreme Court ruled the executive orders on which it was based unconstitutional. 

MIOSHA has argued the executive orders were just one set of guidance underpinning general duty citations issued during the pandemic, but the inspector's testimony at deposition indicated it was the primary basis for the citations in Port Huron. 

Pickelman was in the audience during Thursday's hearing and was scheduled to testify after Freed but was unable to do so before the committee hearing concluded.

The agency shared his prepared remarks after the hearing, which contained a denial that MIOSHA destroyed "any information, records or evidence." The notes that the inspector said were destroyed were considered draft documents that, under state policy, could be destroyed if they were "fully transcribed and replaced by final versions."

"The inspector’s deposition statements have been taken out of context," Pickelman's statement said. "Information in his handwritten field notes were transcribed into the typed narrative that is included in the case file."

As for emails related to the case, Pickelman said they were retrieved from the "deleted items" folder in Microsoft Outlook and provided to Oversight Chairman Steve Johnson.

It was not clear why the agency would supply the emails to Johnson, but deny a subpoena from the city of Port Huron for the emails during the appeal process based on a determination that retrieval of the documents would be "too cumbersome."  

The agency previously has said the MIOSHA inspector was following record retention rules requiring the destruction of confidential information that wasn't included in the official case file when he destroyed handwritten notes from his investigation. 

The inspector was working from home, which was why he burned some of those notes, the agency said. 

"Staff are instructed to purge nonessential matter such as additional copies of documents that are already in the official case file," Pickelman said in a November statement. 

In November, after news of Port Huron's dismissed citation and the burned records came out, Johnson asked the agency for all documents associated with the 2020 workplace citation leveled against Port Huron. 

Johnson, R-Wayland, said he was concerned the actions involving the city of Port Huron were not isolated to the city but could impact other businesses subject to a MIOSHA citation. He said he'd like to clarify what the agency's document retention policy is and the mechanics of the appeal process.

"We want to make sure we have a system in place where innocent business owners, municipalities aren't subject to paying a fine that they're not actually guilty of just by way of, it's cheaper to do that," Johnson told reporters after Thursday's hearing. "That's what we're looking for."

Rep. David LaGrand, D-Grand Rapids, acknowledged that some mistakes may have been made in Port Huron's case but he cautioned against making policy changes based on a single case. 

"There’s an old, old axiom that bad cases make bad law," LaGrand said. 

Freed said he didn't intend to question MIOSHA's role in keeping businesses safe nor to make a political statement about the administration, but felt the issues Port Huron experienced may point to some agency-wide problems.

"Before all this happened, we found MIOSHA to be quite reasonable," he said.