Bauer v. Saginaw Cnty.

• Decision Date: 16 April 2020
• Docket Number: No. 344050,344050
• Citation: 955 N.W.2d 553,332 Mich.App. 174
• Parties: Beth BAUER, Petitioner-Appellant, v. SAGINAW COUNTY and Saginaw County Prosecutor, Respondents-Appellees.
• Court: Court of Appeal of Michigan — District of US

332 Mich.App. 174

955 N.W.2d 553

Beth BAUER, Petitioner-Appellant,

v.SAGINAW COUNTY and Saginaw County Prosecutor, Respondents-Appellees.

No. 344050

Court of Appeals of Michigan.

Submitted March 11, 2020, at Lansing.

Decided April 16, 2020, 9:10 a.m.

Masud Labor Law Group, Saginaw (by Joshua J. Leadford and Richard R. Vary ) for Beth Bauer.

Cummings, McClorey, Davis & Acho, PLC (by Douglas J. Curlew, Livonia, and Timothy S. Ferrand, Clinton Township) for Saginaw County and the Saginaw County Prosecutor.

Before: O'Brien, P.J., and Jansen and Gleicher, JJ.

Jansen, J. Petitioner, Beth Bauer, appeals by leave granted¹ the order of the Saginaw Circuit Court reversing the determination of the administrative-law judge (ALJ) for the Michigan Administrative Hearing System that the newly elected Saginaw County prosecutor discharged petitioner in violation of the political freedom act, MCL 15.401 et seq. , and vacating the ALJ's decision awarding petitioner damages. We affirm.

I. FACTUAL BACKGROUND

On April 12, 1989, Michael Thomas was appointed Saginaw County prosecutor. According to Thomas, he had the statutory right to appoint staff of his choosing, including the legal office manager, for the appropriated positions under the prosecutors’ appointment/tenure statute, MCL 49.31 et seq. Thomas chose petitioner, who had been his legal secretary in private practice, as his legal office manager for the prosecutor's office. At the time, the legal office manager position was not unionized and was an at-will position.

The prosecutorial staff subsequently unionized in 2004, with the legal office manager position represented by the United Auto Workers Local 455, Unit 48 Manager Union. The 2004 collective-bargaining agreement (CBA) provided that a nonprobationary employee could be disciplined, suspended, or discharged for just cause. The 2004 CBA specifically preserved certain rights of elected officials in Appendix A to the CBA. Appendix A stated, in relevant part: "Saginaw County Elected Officials and Judges have the legal authority to appoint their deputy(ies) and other personnel in accordance with the laws, regulations and court rules of the State of Michigan...." Additionally, "Elected Officials’ Deputies, and others as provided by law, regulation or court rule, serve at the sole and unabridged discretion of the Elected Official or Judge/Court to whom said employee is assigned. All of said positions shall be filled at the sole discretion of the Elected Official or Judge/Court for which said employee is to work." Appendix A also listed the "Job Positions" for elected officials and judges and "Their Corresponding Employer and/or Co-Employer." Under Appendix A, Saginaw County and Saginaw County Prosecuting Attorney were coemployers of "Chief Assistant Prosecutor," "Assistant Prosecutor IV," and "Legal Office Manager."

During the 2008 collective-bargaining sessions, Saginaw County proposed to eliminate just-cause protection for the legal office manager position and replace it with an at-will employment standard. According to Thomas, he was "considerably older" than petitioner and was uncertain whether he would continue as prosecuting attorney after the next election year in 2012, so he sought to find "a way to make sure that Miss Bauer's employment as [legal office manager] continued" and to "create job protection" for her so that she could retain her position as the legal office manager "whether I was there or not, whether I was dead or alive or whether or not I was the Prosecutor."

Thomas directed the county's labor specialist, Andre Borrello, to draft a memorandum of understanding (MOU) as a contract addition to the CBA. The union and respondents entered into a MOU regarding the legal office manager position. The MOU stated, in relevant part:

WHEREAS, the Employer, Co-Employer and Union have agreed in principle that although Article 8 of the CBA provides a just cause standard for discipline, subject to law and Appendix A, the position of Legal Office Manager in the Prosecuting Attorney's Office shall be an at-will position, subject to the terms and conditions of this Memorandum of Understanding.

NOW THEREFORE, it is agreed as follows:

1. Contingent on ratification of a new CBA, which shall designate in its Appendix that the position of Legal Office Manager in the Prosecuting Attorney's Office is an at-will position, the Employer, Co-Employer and Union agree that the incumbent in said position, Beth Bauer, is not an at-will employee, but rather an employee subject to discipline under a just cause standard.

2. Once the incumbent vacates the position, all subsequent employees holding the Legal Office Manager position in the Prosecuting Attorney's Office shall be at-will employees and not subject to discipline under a just cause standard, unless specifically negotiated in future CBAs.

3. This Memorandum of Understanding shall have no force or effect unless and until a new CBA is ratified, which designates in its Appendix that the position of Legal Office Manager in the Prosecuting Attorney's Office is an at-will position.

4. This Memorandum of Understanding shall not affect any provision of the current or future CBA other than that which is specifically provided herein.

The MOU was signed by Thomas as coemployer and dated December 1, 2009. Thomas acknowledged that the MOU did not address the duration of petitioner's employment as the legal office manager, nor did it contain language limiting the authority of a successor prosecutor to appoint the legal office manager. Moreover, Thomas was told by the county's civil counsel and "[p]rosecutors around the state" that this MOU did not prevent his successor from making a political appointment. The 2008 CBA was ratified and reflected the new at-will employment standard.

In 2012, Thomas faced a challenge in the primary election. Petitioner campaigned for Thomas and served actively on his campaign committee, as she had in prior elections. The challenger, John McColgan, Jr., won the primary election and went on to be elected as prosecuting attorney. On December 10, 2012, prosecutor-elect McColgan sent an e-mail to petitioner that stated, in relevant part, "As I am sure you are aware, I am planning on bringing in my own office manager, as I believe every prosecutor before me has done. It would be greatly appreciated [i]f you could advise as to your future plans, thereby allowing the most efficient transition possible."

Petitioner and the union representatives subsequently met with prosecutor-elect McColgan with respect to the legal office manager position. McColgan stated that he was not bound by the MOU and that he was bringing in his own legal office manager.

On McColgan's first official day as prosecutor—January 2, 2013—petitioner reported to the prosecutor's office to find the new legal office manager sitting at the legal office manager's desk. McColgan met with petitioner and offered her a job as a floater in the prosecutor's office, but petitioner did not find the offer "plausible." Later the same day, petitioner was presented with a "notice of lay-off, suspension, demotion, discharge" signed by McColgan, which notified petitioner of both "discharge (permanent employee)" and "not reappointed per statute" effective January 16, 2013. The notice indicated that the general reason for discharge was "[s]ervices no longer needed. Are an at-will employee under state statute."

II. PROCEDURAL HISTORY

Petitioner grieved her discharge, claiming that the notice of "discharge" and "not reappointed by statute" were "in direct conflict with" the 2008 CBA. While the grievance was pending, petitioner filed a wrongful-discharge action in federal court against McColgan and Saginaw County. The federal complaint presented several counts, including violation of petitioner's First Amendment right to political affiliation under 42 USC 1983, breach of employment agreement, legitimate expectation of just-cause employment, tortious interference with business expectancy, age and race discrimination, and intentional infliction of emotional distress. See Bauer v. Saginaw Co. , 111 F. Supp. 3d 767 (E.D. Mich, 2015). The parties agreed to hold the grievance in abeyance pending completion of the federal action. Bauer , 111 F. Supp. 3d at 772.

While the federal action was ongoing, plaintiff filed the present administrative action in the Michigan Administrative Hearing System (MAHS).² Petitioner alleged in her complaint that she supported Thomas during the 2012 campaign and that she did not learn until January 2, 2013, that McColgan had removed her from her position as legal office manager. Petitioner asserted that she believed she was discharged in retaliation for her political support of Thomas in violation of MCL 15.403(1)(d) of the political freedom act. Petitioner also asserted that she was a just-cause employee and that McColgan provided no substantive reason for her discharge.

In response to the complaint, respondents asserted that Saginaw County authorized and appropriated funds under MCL 49.31 and MCL 49.35 of the prosecutors’ appointment/tenure statute for the Saginaw County prosecutor to appoint a chief assistant prosecuting attorney, 23 assistant prosecuting attorneys, a legal office manager, and clerical staff. Respondents asserted that under MCL 49.35, each of these employees served "at the pleasure of the prosecuting attorney" and had no right to maintain the position after the conclusion of the prosecutor's term of office. They noted that petitioner testified in her deposition in underlying litigation that she was appointed to the position of legal office manager by Thomas.

Respondents argued that the political freedom act had never been applied to prevent an elected public official from exercising his statutory rights to make a political, partisan appointment and that the political freedom act did not foreclose an elected official's right to appoint. They noted that the federal district court had concluded, with...