Gongwer News Service
Macomb County Executive Mark Hackel asked the Michigan Supreme Court on Wednesday to rule in his favor in a lawsuit involving the extent of Hackel’s executive powers in light of a new budgeting ordinance and another over a corporate counsel funding issue with Macomb County Prosecutor Peter Lucido.
Both cases were heard by the Supreme Court during oral arguments.
Hackel v. Macomb County Board of Commissioners (MSC Docket No. 166363), alleges that the board sued over Hackel’s refusal to give the board’s director of legislative affairs real-time, read-only access to the county’s integrated financial software programs. The board asked the lower courts for an order compelling him to do so because it passed an ordinance regulating the adoption of appropriations ordinances.
The Court of Appeals in a 2-1 unpublished opinion affirmed the Macomb Circuit Court in siding with Hackel. His attorney, David Porter, argued the ordinance curtails his executive powers during the budget
process – and potentially other functions if the court doesn’t rule in his favor. Porter also said Hackel has never refused information when asked by the board and that his office has provided budget information, even if not in the format specifically requested by the board.
If the information offered wasn’t what the board was looking for, Porter said Hackel’s office would work to get them that information.
Peter Webster, representing the Macomb Board of Commissioners, argued that the issue before the court is Macomb County-specific and that it should reject Hackel’s assertion that ruling against him would affect other counties. He also said the ordinance requires Hackel to simply furnish the board with the software, and that overall, the board was entitled to real-time budget information throughout the year and not just during the budget cycle.
Webster said if the court affirmed the ordinance and did not view it as an infringement on Hackel’s executive authority, it would help end delays in the budget process and throughout the year as the board makes amendments.
Porter countered by saying that the intent of the charter was to separate the powers of the board and the executive office, giving clear powers to the executive regarding county finances. He asked the bench consider the intent of the framers instead of the interplay between ordinances and whether they have the effect of law.
Justice Elizabeth Welch asked Webster if the commission could just pass any measure it wanted without regard for the separation of powers outlined in the county’s charter. Justice Kimberly Thomas asked a similar question of Webster regarding the commission’s broad range of authority except for when it involves the executive office. Thomas wondered if there was some restraint baked into the ordinance given that state law isn’t typically inclusive of local ordinances.
Webster said the board can impose whatever requirements it wants on the budget process with some limitations.
“For example, there are provisions of eligibility of office. There’s a restriction on the executive not being able to hold outside full-time employment,” Webster said. “Where there’s an ordinance that runs counter to that, (the ordinance) would not be validly enacted. Here, this is a request for information. The Court of Appeals (said) that we’re entitled to that information, that’s acknowledged. (This appeal) is about the provision of that information and how frequently.”
Justice Richard Bernstein questioned Porter’s assertion that there would be a ripple effect and that ruling in the board’s favor would “spell the end to charter county government as we know it.”
Porter said allowing the ordinance to stand would mean no stopping point on the board’s ability to curtail Hackel’s authority on other issues notwithstanding the budget. Such a move could also render other portions of the charter meaningless.
“Any other facet of the executive’s authority to direct, supervise, control and coordinate all county government departments, services, operations,” Porter said. “All of those … (would be) subject to the commission’s ability to enact ordinances. There is no stopping it. I think the fundamental source of the disagreement in this case is the commission is continuing to operate as if it’s a general law county and it’s not.”
Macomb County Prosecutor v. Macomb County Executive (MSC Docket No. 167415) deals with Hackel’s refusal to appropriate tax revenue for Lucido to hire law firms to create a separate corporate counsel for legal advice. Hackel vetoed the line item, but the county board put it back into the budget. Hackel indicated to the board that he would continue to withhold the funds from Lucido’s office because taxpayer funds were prohibited from being spent in that manner per the county’s charter.
Lucido’s office sued Hackel’s office. The appellate court agreed with Lucido and ordered Hackel to appropriate the funds.
Porter asked the high court to overturn that decision on statute of limitations grounds. He argued that the prohibition on using taxpayer funds in that way was clear in the county’s charter.
Porter also said the spat came down to a personality conflict between Lucido’s office and the existing corporate counsel for Macomb County.
John Perrin, representing Lucido’s office, argued Hackel only vetoed the items and threatened to withhold the funds. Perrin said that action wasn’t technically a formal move to withhold the funds, as there were continued conversations over the funding at the time the lawsuit was filed.
Perrin added that a threat to veto might influence the overall discussion, but it wasn’t an official “impoundment” of the funds, and that the statute of limitations weren’t at play in the case.
Justice Brian Zahra asked Porter if Hackel impounded the funds or simply just threatened to do so. Porter said that Hackel excised the line item for Lucido and when the general appropriations act was approved, he took measures to impound the funds. Zahra said that wasn’t a straight answer, and he still wasn’t sure whether the funds were formally withheld.
Incoming Chief Justice Megan Cavanagh asked how Lucido did not have a cause of action when the executive would not sign the contracts.
Porter said Hackel still reserved the right to change his mind, and that he indicated that he was willing to continue discussions if the prosecutor’s office found a different legal authority that would give him the right to use taxpayer funds to create a new corporate counsel.
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