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March 19 | This Week in Government: Nessel on Separation Agreements, Nursing Homes, Line 5; Workgroup on In-Person Office Work to Meet

Each week, the Detroit Regional Chamber’s Government Relations team, in partnership with Gongwer, will provide members with a collection of timely updates from both local and state governments. Stay in the know on the latest legislation, policy priorities, and more.

  1. Nessel Talks Separation Agreements, Nursing Homes, Line 5
  2. Workgroup on In-Person Office Work Set to Meet
  3. Shirkey Still Weighing Hertel Appointment
  4. Noel to Serve as Interim MEDC CEO; Hopes to Fill Role by April
  5. Gov, DHHS in Conversations with Ilitches on Comerica Park Capacity

Nessel Talks Separation Agreements, Nursing Homes, Line 5

Attorney General Dana Nessel on Tuesday fielded questions on several controversial topics from the Republican members of a House committee, touching on her denial to open an investigation into the state’s coronavirus nursing home policy, litigation over the Line 5 pipeline, and the administration entering into separation agreements with outgoing agency heads.

The House Appropriations General Government Subcommittee heard from Nessel, who presented on her agency’s budget request before taking questions from members.

Rep. Greg VanWoerkom (R-Norton Shores) asked following the presentation why Nessel did not open an investigation into the state’s nursing home policies during the COVID-19 pandemic, particularly early on.

On Monday, Nessel denied a request coming from several Senate Republicans.

Nessel said when New York Attorney General Letitia James began investigating that state’s nursing home policy, she called her to discuss what prompted her inquiry and if Michigan was situated similarly.

She said from her conversations, Michigan was not. Nessel said there was evidence case and death numbers were falsified in New York and there was evidence nursing homes were not following federal guidelines.

Nessel further said she has not seen any evidence Gov. Gretchen Whitmer or anyone in the administration has falsified nursing home data.

“After discussing this with her, it became clear to me that our situation was very different than the situation in New York,” she said. “And that in order for us to perform an investigation, it really would have been very political in nature and not based on the facts and not based on the evidence, and that is why I declined.”

Nessel also said the recent request from Macomb County Prosecutor Peter Lucido for individuals to bring forward stories of potential problems in nursing homes is, “a recipe for misconduct.”

“I do take umbrage to some extent with an effort to ask people to bring evidence forward that you don’t know exists to try to build a criminal case when there is no evidence of a crime having already occurred,” she said. “And I will say that when you have probable cause that a crime has been committed you don’t need for people to come forward because you can simply seek a search warrant.”

Nessel said her office is absolutely open to receiving information, but the inference from Lucido’s request is: “‘I want to prosecute someone. Help me do that,’ without even knowing if a crime has occurred in the first place.”

The attorney general also defended litigation her office has brought related to Enbridge Energy’s Line 5 pipeline. When asked by Rep. Matt Maddock (R-Milford) when she would stop suing over the pipeline, she noted she has brought one case and the governor’s office and the Department of Natural Resources have brought one case.

VanWoerkom and Rep. Andrew Fink (R-Hillsdale) also asked similar questions related to Line 5.

Nessel said in both of the state cases, neither side has won or lost motions to this point. The case she did lose, she noted, was Enbridge suing the state over Ms. Nessel’s opinion relating the utility tunnel project to house the pipeline.

“As you probably know representative, myself, the Governor, we ran making a commitment to the residents of the state and of the voters of the state that we would attempt to decommission Line 5, and in the Governor’s case terminate the easement, in order to best protect people of this state from what I believe could very well be the most damaging and catastrophic oil spill potentially in American history,” she said. “I believe very much that Line 5 needs to be decommissioned. I think that we are on strong legal grounds to do so. And I do ultimately think that we will be successful in that endeavor.”

On separation agreements, Nessel said her office did look at the agreements for former Department of Health and Human Services Director Robert Gordon and former Unemployment Insurance Agency Director Steve Gray for any issues related to legality. She noted her office is not looking at if something is good policy or not.

Gov. Whitmer has come under criticism for those two agreements in which Gordon was paid $155,000 and Gray $85,000 when resigning and signing confidentiality agreements.

When asked if the Freedom of Information Act were to be expanded would it cover those agreements, Nessel said it was her understanding they were discovered through FOIA. That is in fact how those agreements came to light because DHHS and the UIA are subject to FOIA, and a member of Gov. Whitmer’s staff emailed Gordon to ask if he would like to discuss a separation agreement.

Nessel did not take a position on the amount of compensation attorneys in the Flint civil suit are seeking but did say in her experience attorneys start with a high number and it is worked down from there.

Advocates have criticized the request for roughly $200 million from the $641 million settlement. Nessel said she does not want to comment on if it is appropriate or not unless Judge Judith Levy asked her to do so.

“If I were Judge Levy, I would be putting a lot of time, effort, and energy to making those attorneys justify those fees, which I know she is going to do,” Nessel said. “I will tell you what I’ve seen happen frequently on cases involving very large settlements, especially class-action suits. I see attorneys start off at a very, very, very high number, understanding that that number is likely to be brought down significantly by the court later. … I don’t speak for these lawyers because I haven’t discussed this with them, but generally speaking, you don’t want to negotiate against yourself.”

To a question from Fink on the DHHS epidemic orders allowed through law, Nessel said as far as she knows, there haven’t been any legal challenges to that law as there were to the law Gov. Whitmer used from March through October 2020.

Fink asked if it is workable that the DHHS orders have no time limit given the separation of powers.

“If that is an argument that’s to be made then obviously that’s an argument that the court will have to decide on,” she said. “But I would take issue with the fact that the DHHS orders are exactly the same as the (executive orders) were. They are far, far, far (more) limited in scope than the executive orders that were previously set forth by the Governor. And at this juncture, I’m not aware of anything that’s indicated that there is a limit in time as to how long they can stay in effect. Again if that’s litigated, a court can decide differently but at this juncture, there has been no such finding by the court of law that I am aware of.”


Workgroup on In-Person Office Work Set to Meet

A group of business, labor, and public health experts are preparing for their first meeting to begin discussions on recommendations for employers and workers to return to in-person office work, the Department of Labor and Economic Opportunity said Monday.

Currently, workers who can feasibly do their jobs from home are required to do so. Some business groups are pushing for a return to in-person work, which is currently under restrictions until next month, but could be extended through Michigan Occupational Safety and Health Administration emergency rules for up to six months.

The Department of Health and Human Services pointed to 275 outbreaks during the last six months as reasoning for a strong partnership to develop a phased return-to-office strategy.

“Our priority remains the health and safety of Michigan workers and workplaces. Throughout the pandemic, we have worked closely with employers to provide strategies for safer in-person work and this group is an extension of that collaboration,” said Michigan COVID-19 Workplace Safety Director Sean Egan. “Congregation in any setting creates risk, employers have implemented innovative approaches to mitigate the spread of COVID-19, and bringing this new group together will provide a mechanism to capture key insights to align policies with best practices and health guidance.”

The advisory group will provide ongoing guidance and will meet weekly with the first meeting scheduled for March 18. The state will also consult state legislators regarding the phased-in return to in-person office work, a statement said.

Members of the workgroup are:

  • Kate Birdsall, president of the Michigan State University Union of Nontenure-Track Faculty;
  • Tim Carroll, safety specialist with the Office of State Employer;
  • LEO Acting Director Susan Corbin;
  • Egan;
  • State Treasurer Rachael Eubanks;
  • Tina Fuller, president of the Communication Workers of America Local 4009;
  • Kory Groetsch, environmental public health director with DHHS;
  • DHHS Director Elizabeth Hertel;
  • Harry Kemp, senior vice president, general counsel, and corporate secretary for Lear Corp.;
  • Dr. Pranav Kothari, chief of health care strategy with Rock Family of Companies;
  • Lois Murray, president of AFSCME Local 2172;
  • Hannah Naltner, chief of staff at Steelcase;
  • Lansing Mayor Andy Schor;
  • Ryan Sebolt, director of government affairs for Michigan AFL-CIO;
  • Mike Turnquist, senior deputy director at the Department of Technology, Management and Budget; and
  • Ryan Weiss with Dow Chemical Company.

Shirkey Still Weighing Hertel Appointment

Senate Majority Leader Mike Shirkey praised the responsiveness and transparency of Department of Health and Human Services Director Elizabeth Hertel during a Monday television interview but said there remains strong opposition within his caucus to her appointment.

Speaking on Jackson-TVs “The Bart Hawley Show,” Shirkey (R-Clarklake) said he has worked very well with her on projects together in the past.

“She raises everybody’s standard on a policy issue because she’s sincere and she’s honest,” Shirkey said on the show. “But she’s an appointee of our current governor and for that reason she had a fair amount of opposition in our caucus.”

At least seven members of the Senate Republican caucus have expressed support for rejecting her appointment. The Republicans would need the votes of at least 19 of its 20 members to reject her appointment.

He said he will let the advice and consent process play out before he makes a final decision on her appointment. He declined when asked to say where he was leaning on her appointment.

Shirkey added that he has had “more conversations with Director Hertel in the last 10 days that I had for nearly a year with Director Gordon,” and that he was not alone among his caucus in being able to make that comparison.

Hertel was appointed to head DHHS in January after the resignation of former Director Robert Gordon. The Senate has until March 23 to accept or reject her appointment.

The comments were part of a broader conversation on the show about the Legislature’s opposition to the governor’s pandemic response, which Republicans have long said has been unilateral and without engaging the legislative branch as a coequal branch of government.

Shirkey was asked if the Legislature plans to sue the Governor after last week’s passage of a resolution authorizing him to sue Gov. Gretchen Whitmer if her administration were to try and spend supplemental funds tied to one vetoed bill and another bill expected to be vetoed.

“I hope we don’t have to, but this is just in preparation,” Shirkey said.

He added that he believed Gov. Whitmer has indicated her administration might try to find a way around the Legislature, in spending the funds, despite the restrictions that lawmakers put in place on some of the dollars.

“I’m hoping that the governor doesn’t break the law – hoping that the Governor honors the law and proceeds with the spending that we proposed,” Shirkey said.

He was also asked about recent comments in another interview, in which he said he was supportive of the lifting of restrictions by Texas Governor Greg Abbott.

“I’d be more aligned with what he did,” Shirkey said.

When asked about the lack of restrictions and no mask mandate, Shirkey said that Abbott encouraged businesses to follow public health and safety recommendations.

“The biggest gap in Michigan in the last year has been a complete lack of trust of our governor in the people of Michigan, both people, individuals, and businesses. No trust,” Shirkey said.

During the interview, Shirkey also discussed his having been infected with the coronavirus in December 2020.

“I got it. I got ‘Rona. So, I’m harmless for you, my friend, for a number of months,” Shirkey said when asked if he has been vaccinated yet.

He admitted he is in no rush to get vaccinated, but he is going to wait “my turn” behind those who may be more in need.

Shirkey said he had a light fever for eight days when he had COVID-19, but no respiratory issues.

“I vigorously exercised the whole time. I was tired,” he said. “I wanted to make sure that I was testing my respiratory system and make sure that it was alright.”

Shirkey was also asked if he had any regrets for comments during a previous interview on the same program referring to the coronavirus as “the Chinese Flu Army.”

“Not at all,” Shirkey said. “That’s where it came from.”

Some officials have referred to the coronavirus as the “China virus,” including former President Donald Trump who referenced it that way in a statement last week.

There has also been a reported increase in hate crimes against Asian Americans this past year.

“Over the last year, bias incidents and hate crimes targeting Asian Americans have escalated, both in number and in intensity,” Michigan Civil Rights Commissioner Anupama Kosaraju said in a statement last week. “It is important that as a state and a nation we do more to put an end to these incidents. We urge anyone who has been the victim of a hate crime or has witnessed such an act to contact the office of Attorney General Dana Nessel immediately. If you feel you have faced discrimination or bias based on your ethnicity, you have the right to file a complaint with the Michigan Department of Civil Rights. When people begin to face consequences for these acts of hate, it will put others on notice that they too may have a price to pay for such actions.”


Noel to Serve as Interim MEDC CEO; Hopes to Fill Role by April

Following the departure of former interim Michigan Economic Development Corp. CEO Mark Burton last week, the agency has named MEDC Executive Committee Vice Chair Jeff Noel to serve as interim CEO until the role is permanently filled.

Noel will be serving as the official CEO in a volunteer capacity, with MEDC Executive Committee Chair Awenate Cobbina serving in an advisory capacity, meaning Noel will have signing authority for the board.

“We really believe that our ability to offer guidance from the board level, while serving in the CEO capacity and maintaining those responsibilities – including properly designating items that previous CEOs have delegated to the senior staff at MEDC, or that we believe should be designated to the senior staff at MEDC – will allow MEDC to continue operating in a fully operational manner,” Cobbina said. “This is certainly not permanent. This is a very temporary situation.”

Cobbina, during the MEDC’s Executive Committee meeting Tuesday, said the board is close to the end of the search and expects the group to name someone to the position “by the end of March, beginning of April,” which could require the board to meet for a special session prior to its scheduled meeting in May.

He did, however, acknowledge that he’d initially forecasted the role to be filled in tandem with Burton’s leaving – so that there was no need for a secondary interim CEO option – but that the prediction ultimately fell short, meaning the new month-or-less timeline “should be taken with a grain of salt.”

Though Cobbina did not specify how many were in the running for agency CEO, he did imply that there were several candidates and that they were all quality enough to warrant possibly submitting multiple before an MEDC subcommittee prior to Gov. Gretchen Whitmer’s approval.

In comments from board members, many said they were impressed with the quality of candidates who applied. As noted in a statement from Cobbina after the meeting, nearly 150 candidates or referrals were identified from 26 states and Puerto Rico for the role.

He added that board members seemed to have coalesced around an idea as to what they want out of a final CEO choice, with one defining characteristic being a CEO willing to “engage the board more, not only from a communication perspective but also making sure that we get to voice what’s going on in our areas … and really offer our help, even more so than we have in the past.”


Gov, DHHS in Conversations with Ilitches on Comerica Park Capacity

The administration of Gov. Gretchen Whitmer, the Department of Health and Human Services, and the Ilitch family are discussing the appropriate capacity limit for Comerica Park ahead of opening day for the Detroit Tigers.

However, when asked, the Governor’s office on Monday gave no indication if it plans to decrease or increase capacity limits for the Major League Baseball ballpark ahead of its April 1 season opener.

In a statement, Chelsea Lewis-Parisio, a spokesperson for Gov. Whitmer, said the governor and the Ilitch family are reviewing the health and safety of Michigan residents amid the current DHHS order limiting attendance to 1,000 or 2.4 percent of its 41,083 seats.

“From the beginning of the pandemic, our top priority has been the health and safety of Michiganders,” Lewis-Parisio said. “In the lead up to opening day, the Michigan Department of Health and Human Services has been in close discussion with the Tigers and the team at Comerica Park to find a safe path forward to expand capacity limits at the stadium. Given our success during the Pause to Save Lives and expansion of vaccine eligibility, we feel confident that our state is making tremendous strides to get back to normal as quickly as possible. There’s nothing more exciting than fans rooting for the Tigers at a home game, and we look forward to making that happen very soon.

When asked if more concrete considerations were being made to either increase or decrease the limit, neither Lewis-Parisio or Whitmer Press Secretary Bobby Leddy expounded on what those conversations have entailed.

The Tigers have struggled with attendance since tearing apart the team in 2017, but generally have been able to get at least 10,000 people in the stands before the pandemic. And opening day in Detroit traditionally is a major event guaranteed to have a sell-out crowd.

Meanwhile, the Michigan Republican Party on Monday took its message of reopening sectors of the state’s entertainment sector to the streets, so to speak, with a press conference near a crosswalk on Detroit’s Woodward Avenue at the entrance of Comerica Park.

Rep. Matt Maddock (R-Milford), Rep. TC Clements (R-Temperance) and Rep. Pamela Hornberger (R-Chesterfield Township), and Ted Goodman, spokesperson for the Michigan Republican Party, each derided the Whitmer administration’s capacity limits and previous decisions made by the governor throughout the course of the coronavirus pandemic.

“There is tens of millions of dollars that are going to be right downtown in Michigan if we open up the state and open up this great stadium behind us,” Maddock said. “It feels like Groundhog Day, we keep on doing the same things over and over and over again. We need to do something different. We need to open the state of Michigan again and start celebrating life. … Gov. Whitmer, for God’s sake, let us just have some fun for once.”

When asked, Gov. Whitmer’s office did not respond to comments made during the press conference.

Neither Goodman nor the representatives involved in the outdoor press conference were wearing masks at the outdoor news conference. They were huddled tightly together throughout.