By Mike Kruzman /

Livingston County Commissioners approved, but were split on the decision to continue pay and benefits to non-essential county employees.

With last week’s extension of Governor Gretchen Whitmer’s stay-at-home order moving out to June 12th, came the need for the Board of Commissioners to make the decision. As the county’s legal counsel, Rich McNulty explained during Commissioner’s latest online meeting, this applies to the subset of county employees who are not authorized to work in person, or telecommute. He presented the Board with 3 options: Option 1 to continue pay as long as the employees are ready to return to work when allowed; Option 2- instruct elected officials and department heads to reduce staff and payrolls; and Option 3; have officials and departments heads evaluate if more people could be brought back. A motion was on the table for Option 1.

Much of the discussion period, however, was spent with Commissioners asking McNulty about lawsuits against the Governor and the validity of two conflicting statutes that she is drawing on for use of her Executive Order powers. A 1945 statute grants the governor emergency powers with no-timeline, while a 1976 statute grants broader powers, but requires legislative approval after 28 days. McNulty advised the prudent thing for the county to do is to wait on the courts to decide on the legitimacy of her orders under the statutes. For now, the Executive Orders are considered to be lawful. Commissioner Wes Nakagiri compared Livingston County’s COVID-19 numbers to others in northern Michigan that have already been opened and questioned whether the county could sue the governor on the grounds that her standards for opening up counties is arbitrary. McNulty said they could sue, but it wouldn’t be easy to win. He the issue is that decisions of this type are done on a “rationally related” standard (is the decision rationally related to the goal?), which is the lowest of a number of different standards. McNulty said it is such a low standard that such a challenge would face significant hurdles.

The Board then voted on the resolution to continue paying appropriate non-essential employees until the sooner of the expiration of the executive orders, court or legal action superseding such orders, or the revocation of this resolution by the Board. It passed 5-3. Commissioners Gary Childs, Kate Lawrence, Bill Green, Bob Bezotte, and Carol Griffith were in favor. Commissioners Nakagiri, Doug Helzerman, and Jay Gross voted against.