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Judge Annette Berry strengthens EM law

Judge Annette Berry

Judge Annette Berry

By T. Kelly
The Michigan Citizen

DETROIT — Wayne County Circuit Court Judge Annette Berry added to the powers of the emergency manager in Public Act 436, with a ruling Nov. 22 that emergency managers have the right to appoint persons to elected boards.

Berry’s ruling allows the emergency manager to bypass the election requirements for board appointments expressed in state law and in the boards’ by laws. The ruling also seats members with the likelihood of more loyalty to the EM than to the taxpayers, expanding the possibility for the extension of emergency manager rule.

The judge ruled that since the EM has all of the board’s powers, he gets to make that decision as well, said elected board President Lamar Lemmons.

When former Detroit Public Schools EM Roy Roberts bypassed the elected school board to appoint Jonathon Kinloch to a seat vacated by Carol Banks, the board sued. Banks resigned her seat when Roberts offered her the newly created, $54,000 a-year ombudsman position. Current EM Jack Martin has upheld the Kinloch appointment.

“What did Jonathon Kinloch win?” asked Helen Moore, founder of the Keep the Vote No Takeover. “He was appointed by our enemies. That makes him our enemy. We can never trust him.”

In a June 2013 public session the board interviewed three candidates for the position left vacant by Banks. After interviewing three candidates at a public meeting, board members elected educator and union organizer Sherry Gay-Dagnogo to fill the seat.

Kinloch, however, insisted on being seated and disrupted board meetings to be heard when President Lamar Lemmons refused to acknowledge him.

“We don’t believe the judge quite understood the conflict of interest,” said Lemons at the Nov. 25 special meeting of the board.

With this ruling, he said, “a state contractor can appoint elected officials. How do citizens recall an individual never elected?”

Board member Elena Herrada asked, “If the EM stacks the board in his favor, when it comes time to vote the EM out, will he vote against the hand that fed him?”

Under the “illegal, ungodly law,” board member Wanda Redmond said, “the emergency manager has superior powers. All powers of elected officials are bestowed on the emergency manager. How do we counteract?”

Lemmons said the judge noted elected board powers under PA 436 are restricted to section 19. Under section 19, after 18 months, elected bodies can ask the governor to remove the emergency manager and restore democracy.  “This usurps section 19 power to remove the emergency manager,” Lemmons said.

Also section 19 allows elected bodies to present alternatives to the EM actions costing more than $50,000. DPS board has criticized this provision, saying they do have access to information or resources to present alternatives.

Under PA 436, the board must have a super majority to seek remove the EM, Lemmons said. With Berry’s ruling, the door is open for the emergency manager to stack the board with appointees who will not oppose him.

Kinloch said in an earlier interview his purpose is to help the district. He ran unsuccessfully in 2006 for the school board and then tried to get appointed by the board in 2008. The board bypassed Kinloch, and elected Herrada who has since run successfully for the seat representing District 4.

Kinloch’s term on the Detroit Library Board was also contentious. He resigned from the Library Commission the week of July 15 to take the DPS board appointment. Kinloch was president of the Library Commission in November 2012 when it was raided by the FBI and operating with a $10 million deficit.

The DPS board voted to appeal Berry’s ruling. Lemmons announced during meetings he would not call Kinloch by his name, but rather, “the EM’s appointee.”

When Michigan voters rejected emergency management by voting the repeal of PA4 in the Nov. 2012 election, the Republican-controlled legislature within a month rushed through passage of PA436, a new Emergency Manager law with an appropriation attached, making it impossible for voters to repeal it.

Upon signing the bill into law, Gov. Rick Snyder praised what he said were democratic elements of the new law. “This legislation demonstrates that we clearly heard, recognized and respected the will of the voters,” Snyder said in a statement. “It builds in local control and options while also ensuring the tools to protect communities and school districts’ residents, students and taxpayers.”

There are other instances of EMs filling elected positions. In early November, Benton Harbor Emergency Manager Tony Saunders appointed Ruthie Harrelson to a seat on the city commission when Commissioner Dennis Knowles resigned suddenly.



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