Bowns v. City of Port Huron

• Decision Date: 22 January 1986
• Docket Number: Docket No. 78876
• Citation: 146 Mich.App. 69,379 N.W.2d 469
• Parties: John R. BOWNS, Claimant-Appellee, v. CITY OF PORT HURON, Respondent-Appellant, and Michigan Employment Security Commission, Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 469

379 N.W.2d 469

146 Mich.App. 69

John R. BOWNS, Claimant-Appellee, v. CITY OF PORT HURON, Respondent-Appellant and Michigan Employment Security Commission, Appellee.

Docket No. 78876 Court of Appeals of Michigan.

Submitted March 14, 1985.

Decided Oct. 7, 1985.

Released for Publication Jan. 22, 1986.

Law Offices of Black & Dean by David M. Dean, Port Huron, for claimant.

Bush, Luce, Henderson, Bankson & Heyboer by David R. Heyboer, Port Huron, for City of Port Huron.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Dennis J. Grifka, Asst. Atty. Gen., Detroit, for Mich. Employment Sec. Com'n.

Before CYNAR, P.J., and HOLBROOK and TAHVONEN ^*, JJ.

TAHVONEN, Judge.

Claimant, John R. Bowns, appeals as of right the circuit court's reversal of a decision of the Michigan Employment Security Commission Board of Review, which had reversed the Michigan Employment Security Commission's (MESC) denial of unemployment compensation benefits to claimant. The issue is whether the claimant's observation of and participation in illegal gambling activities, while off duty from his job with the police department, was sufficiently connected to his work to justify denial of unemployment compensation benefits. We believe it was.

The facts are undisputed. Claimant was a uniformed sergeant assigned to the patrol division in the City of Port Huron Police Department, where he had been employed for 17 years. He supervised patrolmen assigned to his shift, and was required to patrol and respond to disturbances in Port Huron. Further, as a patrol sergeant, claimant was second in command to the shift lieutenant, in whose absence he would assume the position of platoon commander. The Port Huron police department has no specific rules or regulations which govern the behavior of off-duty police officers.

Between March and December, 1981, Gregory Riley, a special agent for the Michigan Attorney General's office, conducted an undercover investigation of the Midway Inn, a Port Huron motel. The investigation was in response to reports from the Port Huron police and Michigan State Police that sports betting, bookmaking and high stakes poker games were being conducted there. ¹

On March 13, 1981, Riley observed the claimant in the bar at the Midway Inn. Several individuals were playing a poker game called "In and Out". When one of the players left the game, the claimant played his hand until he returned. Riley noticed the claimant again at the Midway Inn on April 3, 1981. On that occasion, claimant sat near four persons who were playing a game of "In and Out" in the plain view of any patron entering the bar. He also moved around the room talking to people. "Stubby" Hill, a supplier of football pool cards, and Riley were in the bar on September 21, 1981, when claimant arrived, followed a few minutes later by William Bartlett, a known "numbers man". Claimant called to Bartlett, "Hi, numbers". Bartlett proceeded to discuss the sale of football pool tickets and to distribute cards to bar patrons while claimant sat nearby. On October 22, 1981, Riley saw "Stubby" Hill and the claimant engaged in conversation while football pool tickets protruded from Hill's front shirt pocket. Claimant made no arrests, nor did he report to his superiors suspected violations of the state gambling or liquor laws.

Following completion of the investigation, claimant was suspended without pay. On March 8, 1982, the acting police chief, Captain Dressler, terminated claimant from the police force for conduct unbecoming a police officer and for neglect of duty. ²

Claimant filed an application for unemployment benefits with the MESC on April 5, 1982, which respondent city contested. The MESC determined on April 30, 1982, that the claimant was not entitled to unemployment benefits because he had been terminated for misconduct in connection with his work when he failed to report a violation of state gambling laws. Claimant appealed to the MESC referee division. An evidentiary hearing was held June 2 and 10, 1982, at which time the claimant admitted his presence in the bar, his knowledge of the gambling activities and his participation therein. He stated that he did not report the gambling activity because he was off duty. Claimant also explained that Port Huron is a small town and he had to live with the people there. He believed the gambling activity at the Midway Inn was common knowledge among police officers in Port Huron. The referee affirmed the MESC on June 16, 1982, finding that the claimant's actions amounted to dereliction of duty and conduct unbecoming an officer, and that such were connected to his work.

An appeal to the MESC Board of Review followed. The board, on July 27, 1983, reversed the referee's decision, finding that, while the claimant had shown poor judgment, the respondent city had not shown the "connection with work" requirement of the act where the claimant was off duty, unarmed, in civilian clothes and only minimally participating in the gambling activity. Respondent city appealed to St. Clair County Circuit Court. The court held that claimant's misconduct was related to his work, and reversed the Board of Review's decision as being contrary to law. On appeal, the claimant urges that, as a matter of law, his actions did not constitute disqualifying misconduct within the meaning of the Michigan Employment Security Act (MESA), M.C.L. Sec. 421.1 et seq.; M.S.A. Sec. 17.501 et seq. We affirm the circuit court for the reasons set forth herein.

We note, at the outset, that the circuit court properly reviewed the question presented as one of law, since the facts are undisputed. Washington v. Amway Grand Plaza, 135 Mich.App. 652, 656-657, 354 N.W.2d 299 (1984), Chrysler Corp. v. Sellers, 105 Mich.App. 715, 720, 307 N.W.2d 708 (1981), Laya v. Cebar Construction Co., 101 Mich.App. 26, 29, 300 N.W.2d 439 (1980). This Court will reverse an order of the Board of Review only if it is contrary to law or unsupported by competent, material and substantial evidence on the record. Const.1963, art. 6, Sec. 28, M.C.L. Sec. 421.38; M.S.A. Sec. 17.540, Sellers, supra, 105 Mich.App. p. 720, 307 N.W.2d 708, Christophersen v. City of Menominee, 137 Mich.App. 776, 779, 359 N.W.2d 563 (1984). Appellate review includes a review of the soundness of the Board of Review's interpretation of misconduct. Washington, supra, 135 Mich.App. p. 657, 354 N.W.2d 299.

Former section 69(2)(b) of the Michigan Employment Security Act, M.C.L. Sec. 421.69(2)(b); M.S.A. Sec. 17.569(19)(2)(b), provided that an individual should be disqualified for benefits where he or she has been discharged for misconduct connected with his or her work [repealed by 1982 P.A. 535, effective January 2, 1983; current version at M.C.L. Sec. 421.29(1)(b); M.S.A. Sec. 17.531(1)(b) ]. The Michigan Supreme Court, in Carter v. Employment Security Comm., 364 Mich. 538, 541, 111 N.W.2d 817 (1961), adopted the classic definition of misconduct as it was interpreted in Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-260, 296 N.W. 636 (1941):

"The term 'misconduct' * * * is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute." See also, Linski v Employment Security Comm, 358 Mich 239, 241-242; 99 NW2d 582 (1959).

The employer's burden is to show misconduct. Fresta v. Miller, 7 Mich.App. 58, 63-64, 151 N.W.2d 181 (1967), Washington, supra, 135 Mich.App. p. 658, 354 N.W.2d 299.

This Court has recognized that illegal or improper conduct by employees in positions of public trust may undermine their ability to function in an official capacity and damage the prestige of the public employer. Core v. Traverse City, 89 Mich.App. 492, 280 N.W.2d 569 (1979). The Core Court, in finding the conduct of an off-duty fireman who illegally hunted deer to be related to his employment, considered it important that his activities damaged the prestige of the fire department, evidenced serious disregard for law and interfered with his leadership ability. This Court...