Bajis v. City of Dearborn, Docket No. 83136

• Citation: 151 Mich.App. 533,391 N.W.2d 401
• Decision Date: 15 August 1986
• Docket Number: Docket No. 83136
• Parties: William J. BAJIS, Plaintiff-Appellee, v. CITY OF DEARBORN, a municipal corporation, Defendant-Appellant. 151 Mich.App. 533, 391 N.W.2d 401
• Court: Court of Appeal of Michigan (US)

Page 401

391 N.W.2d 401

William J. BAJIS, Plaintiff-Appellee, v. CITY OF DEARBORN, a municipal corporation,

Defendant-Appellant.

Docket No. 83136.

151 Mich.App. 533, 391 N.W.2d 401

Court of Appeals of Michigan.

Submitted Oct. 17, 1985.

Decided May 6, 1986.

Released for Publication Aug. 15, 1986.

[151 MICHAPP 535] G. Daniel Ferrera, Dearborn, for plaintiff-appellee.

Dykema, Gossett, Spencer, Goodnow & Trigg by John A. Entenman, Richard L. Hurford and Michael R. Lied, Detroit, for defendant-appellant.

Before BRONSON, P.J., and T.M. BURNS and SIMON, ^* JJ.

PER CURIAM.

Defendant, City of Dearborn, appeals as of right from a circuit court order reinstating plaintiff as a probationary firefighter. We reverse.

On June 29, 1984, plaintiff was discharged for misuse of city equipment. The basis for the discharge was the discovery that during May 29 and May 30, 1984, plaintiff, while on duty, placed harassing and obscene telephone calls from the city telephone located in the fire captain's office. Such personal telephone use violated a specific city policy.

Plaintiff filed a grievance after his discharge, pursuant to the collective bargaining agreement between the city and its firefighters, and also requested a veteran's preference hearing under [151 MICHAPP 536] the Michigan veterans preference act, M.C.L. Sec. 35.401 et seq.; M.S.A. Sec. 4.1221 et seq. The grievance was held in abeyance pending the outcome of the hearing. The mayor of the city adopted the hearing officer's recommendation upholding plaintiff's discharge. The hearing officer had found that the telephone calls constituted "official misconduct" and "wilful neglect of duties" as a firefighter.

On November 28, 1984, plaintiff filed a complaint in the circuit court, contending that the decision upholding his discharge violated the veterans preference act and that his discharge was in violation of the applicable collective bargaining agreement. The trial court dismissed the counts regarding the collective bargaining agreement because plaintiff had failed to exhaust his contractual remedies. In regard to the veterans preference claim, the circuit court ruled that there was insufficient record evidence to establish that plaintiff had committed official misconduct or that plaintiff neglected his duties. This appeal ensued.

Defendant contends that the circuit court should not have set aside the mayor's decision upholding plaintiff's discharge. Defendant first argues that the circuit court erred by failing to address defendant's arguments that plaintiff could not invoke the protection of the act because he had not demonstrated "good moral character" or because of his probationary status. We find that the circuit court acted correctly in declining to address these issues. These questions were not raised before the hearing officer or the mayor. As a general rule, questions not raised or ruled on by a lower court or tribunal, or alleged erroneous action as to which no objection was made, cannot be presented to or considered by a reviewing court.

Even if the circuit court had considered these issues, there is no merit to defendant's contentions. [151 MICHAPP 537] The requirement of "good moral character", as set forth in M.C.L. Sec. 35.401; M.S.A. Sec. 4.1221, applies only to applicants for positions. Once a person is hired, the section does not apply and does not allow discharge under the act for lack of good moral character.

The fact that plaintiff was on probationary status is also irrelevant. Section 2 of the act, M.C.L. Sec. 35.402; M.S.A. Sec. 4.1222, refers to any veteran holding an office or employment in any public department or public works of a city. The act does not exclude those employees when they are placed on probationary status.

Defendant next argues that the circuit court erred in reversing the mayor's decision by finding insufficient evidentiary support to establish that plaintiff had committed official misconduct or a neglect of duty. The act provides that no veteran falling under the act shall be removed or suspended except for "official misconduct, habitual serious or wilful neglect in the performance of duty, extortion, conviction of intoxication, conviction of felony, or incompetency". M.C.L. Sec. 35.402; M.S.A. Sec. 4.1222.

An appeal from the action of a mayor who acts by virtue of the power granted under the veterans preference act may be pursued by filing a complaint seeking superintending control. See Lenz v. Mayor of Detroit, 338 Mich. 383, 396, 61 N.W.2d 587 (1953), and GCR 1963, 711. Thus, the circuit court on appeal can review whether an inferior tribunal proceeded according to law. Moreover, while the provisions of the Administrative Procedures Act, M.C.L. Sec....