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AG's office says it won’t defend public board members who don’t handle duties

Judge's gavel
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If members of public boards and commissions flout their responsibilities, the state does not have to defend them from legal actions. That’s the message of a letter from Michigan Attorney General Dana Nessel’s office, and it’s focused on the bipartisan state panel that certifies election results.

Democratic state Senator Jeremy Moss requested the letter — which is different from an official attorney general’s opinion because it’s not an official interpretation of a state law or policy. Moss said he’s concerned about what the board might do following the November elections with statewide races and controversial ballot questions dealing with abortion, voting rights and term limits in play.

The Michigan Board of State Canvassers’ membership is evenly split between Republicans and Democrats. Moss says the letter sends a message,

“So, while it might not be an official opinion, it is a clear signal from the department of where they stand in terms of how they’re going to defend or not defend actions of those who would not follow the law,” he told Michigan Public Radio. “And if they don’t perform what is their ministerial duty in certifying an election, they could deal with penalties from that.”

From the letter to Moss:

“Therefore, in response to your questions, a member of a state board, council, commission, or task force, who receives advice from the Department regarding his or her clear legal duty and does not act in conformity with that advice may be refused representation by the Department in civil litigation related to that duty and could potentially lose their statutory immunity from tort liability.”

The letter was signed by Chief Deputy Attorney General Christina Grossi.

The four-member canvassing board’s decisions must be made by a majority vote with at least one vote from a Republican and a Democrat. Deadlocks on the board almost always go to court.

That’s what happened with the Promote the Vote and Reproductive Freedom for All campaigns to amend the Michigan Constitution. After a deadlock, the Michigan Supreme Court ordered the board to place the questions on the November ballot.

GOP board member Tony Daunt complied with the order and said that’s how the system is supposed to work. He told Michigan Public Radio a state department using its discretion to threaten members of any public board with legal consequences when they act in good faith is a dangerous development.

“It has a chilling effect on the ability of these boards to do their work and do it in a responsible manner,” he said. “I think it’s a particularly insidious method of intimidation in essentially seeking to weaponize the powers of government to go after people who disagree with you on a matter of policy or law.”

Rick Pluta is Senior Capitol Correspondent for the Michigan Public Radio Network. He has been covering Michigan’s Capitol, government, and politics since 1987.
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