Brown v. Mayor of Detroit, Docket No. 259911.
| Court | Court of Appeal of Michigan (US) |
| Writing for the Court | Per Curiam |
| Citation | 271 Mich. App. 692,723 N.W.2d 464 |
| Parties | Gary A. BROWN and Harold C. Nelthrope, Plaintiffs-Appellees, v. MAYOR OF DETROIT and City of Detroit, Defendants-Appellants. Gary A. Brown and Harold C. Nelthrope, Plaintiffs-Appellees, v. Mayor of Detroit, Defendant-Appellant, and City of Detroit, Defendant. |
| Docket Number | Docket No. 259911.,Docket No. 259923. |
| Decision Date | 27 July 2006 |
Page 464
v.
MAYOR OF DETROIT and City of Detroit, Defendants-Appellants.
Gary A. Brown and Harold C. Nelthrope, Plaintiffs-Appellees,
v.
Mayor of Detroit, Defendant-Appellant, and
City of Detroit, Defendant.
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COPYRIGHT MATERIAL OMITTED
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Stefani & Stefani, Professional Corporation (by Michael L. Stefani, Brady G. Stefani,
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and Frank J. Rivers), Royal Oak, for the plaintiffs.
Barris, Sott, Denn & Driker, P.L.L.C. (by Morley Witus and Lindsay Buiting), Valerie A. Colbert-Osamuede, and Lewis & Munday, P.C. (by Samuel E. McCargo), Detroit, for the Mayor of Detroit.
Barris, Sott, Denn & Driker, P.L.L.C. (by Morley Witus and Lindsay Buiting), Valerie A. Colbert-Osamuede, and Grier & Copeland, P.C. (by Wilson A. Copeland, II), Detroit, for the city of Detroit.
Before: NEFF, P.J., and SAAD and BANDSTRA, JJ.
PER CURIAM.
In Docket No. 259911, defendants Mayor Kwame Kilpatrick and the City of Detroit appeal the trial court's order that denied their motions for summary disposition on plaintiffs Gary Brown and Harold Nelthrope's claims under the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq., and granted Harold Nelthrope's motion for partial summary disposition on his WPA claim. In Docket No. 259923, Mayor Kilpatrick appeals the trial court's order that denied his motion for summary disposition on Brown and Nelthrope's slander claims. We affirm in part, reverse in part, and remand for further proceedings.
As a Detroit Police Officer, Nelthrope worked in Mayor Kilpatrick's Executive Protection Unit (EPU) from January 2002 through February 2003, when he was transferred to the 7th Precinct. In March 2003, Officer Nelthrope contacted the Professional Accountability Bureau1 (PAB) of the Detroit Police Department to disclose information about suspected illegal or wrongful conduct by EPU Officer Loronzo "Greg" Jones and Officer Michael Martin.2 In April 2003, Lieutenant Roosevelt Lawrence and Inspector Fred McClure of the PAB interviewed Officer Nelthrope about his allegations and he was interviewed a second time by Sergeant Shawn Wesley of the Public Corruption Unit. Around the time Officer Nelthrope's allegations arose, the PAB was also conducting an unrelated investigation of Jones because Jones's brother was arrested and, in his wallet, he was carrying the official shield from Jones's Detroit Police Department cap.
Gary Brown was a deputy chief in the PAB at the time Officer Nelthrope made his claims. According to Deputy Chief Brown, he authorized a preliminary investigation into Nelthrope's allegations and, on two occasions, he discussed the allegations with then Chief of Police Jerry Oliver. Specifically, Deputy Chief Brown testified that he told Chief Oliver about Officer Nelthrope's information in late March or the first week in April 2003. Deputy Chief Brown further testified that on Monday, May 5, 2003, Chief Oliver told him that the mayor's office was angry about the PAB's inquiries involving the EPU officers and that Mayor Kilpatrick's chief of staff, Christine Beatty, requested a report on the status of the investigation. Brown maintains that he told Chief Oliver that his staff was preparing a comprehensive memorandum on all of Officer Nelthrope's allegations, but Oliver instead directed him to draft a brief, bullet-point memorandum on any investigation related
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to the EPU officers. Chief Oliver testified that, while he was aware of Officer Nelthrope's allegations from prior discussions with Deputy Chief Brown, he did not remember that Brown told him he had a more comprehensive memorandum. However, Chief Oliver recalled that, at Beatty's request, he asked Brown to draft a memorandum about Officer Nelthrope's allegations and any investigation the PAB had conducted on the EPU officers.
The two memorandums described above are at the center of the allegations in this case. In April 2003, Sergeant Wesley and PAB Lieutenant Brian Stair drafted a five-page memorandum that described Officer Nelthrope's allegations and listed Deputy Chief Brown as the author. The memorandum states that, according to Officer Nelthrope, at the end of 2002 or the beginning of 2003, Officer Jones struck a parked vehicle after he left the Half Past 3 nightclub in a sport utility vehicle (SUV) assigned to the EPU. Officer Nelthrope stated that Officer Jones failed to report the incident and that Jones paid for the SUV repairs himself. Officer Nelthrope also reported that, on February 7, 2003, Officer Martin left his post during work hours and drank alcohol at a party held at the Half Past 3 nightclub. Officer Nelthrope stated that, when Officer Martin left the party, he crashed his car, which was also assigned to the EPU. Officer Nelthrope told the PAB officers that Officer Martin ordered an EPU officer to his home to change a flat tire on the car and that the officer observed that the vehicle had three flat tires and other damage. The officer also noted that Martin appeared to be intoxicated and that he left his weapon in the car. Officer Martin told the officer that he hit something in the street. Workers at the garage at which the car was repaired told PAB officers that the car had three flat tires and undercarriage damage. Officer Martin did not file a report about the accident.
Officer Nelthrope further alleged that both Officers Jones and Martin often spent time at the Half Past 3 nightclub during work hours. The report also stated that Officers Jones and Martin sought and received overtime pay for as much as 50 or 60 hours of overtime per pay period when they failed to work even their regular shifts. Officer Nelthrope also reported that a private party took place at the Manoogian Mansion3 before the Kilpatricks made this their residence. According to Officer Nelthrope, Mayor Kwame Kilpatrick attended the party and the party featured nude female dancers. The report further states:
Officer Nelthrope alleges that Mrs. Kilpatrick arrived unexpectedly at the mansion and observed Mayor Kilpatrick, his friends and the dancers. He further stated that a fight ensued between M[r]s. Kilpatrick and a dancer and that the dancer received injuries requiring medical attention. It is alleged that the dancer was treated at St. John's hospital and the Executive Protection Unit confiscated all activity log sheets from the Seventh Precinct.4
The concluding paragraph of the memorandum states that, at Chief Oliver's direction, the PAB was prepared to conduct an investigation into the allegations.
As noted, Chief Oliver instructed Deputy Chief Brown to draft a bullet-point memorandum on the EPU officer investigations only so that Oliver could convey the information to Beatty. According to
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Deputy Chief Brown, he drafted a two-page memorandum, Chief Oliver asked him to make certain editorial changes, Brown made the changes, and he gave the completed memorandum to Oliver. The memorandum states, in bullet-point form, that PAB officers interviewed Officer Nelthrope on March 28, 2003, and that Nelthrope alleged that (1) Officer Jones was involved in an accident while driving his EPU vehicle, (2) Officer Martin left his post to attend a nightclub party, Martin was seen drinking alcohol at the party, and, after the party, Martin was involved in an accident while driving his EPU vehicle, and (3) Jones and Martin received overtime pay for hours they did not work. The memorandum did not contain any allegations regarding the Manoogian Mansion party or Carlita Kilpatrick's alleged assault on the nude dancer. The concluding paragraph of the two-page memorandum stated that the disciplinary issues could be addressed with "proactive supervision" and, "unless directed by the Chief of Police, no further action will be taken regarding these issues." Deputy Chief Brown signed the memorandum and, at the bottom of the document, Oliver drafted and signed a handwritten note, dated May 6, 2003, that stated, "No further investigation directed at this time."
Chief Oliver testified that, after Deputy Chief Brown gave him the memorandum, Oliver stamped "CONFIDENTIAL" on the document and gave it to Beatty on May 6, 2003. According to Chief Oliver, when he gave Beatty the memorandum, Beatty was primarily interested in any investigation related to the Manoogian Mansion party. In her deposition, Beatty denied that she requested a memorandum about Officer Nelthrope's allegations of misconduct by the EPU officers and she maintained that she was surprised to receive it. She further testified that after Chief Oliver gave her the memorandum, she received an anonymous letter marked "confidential" under her office door or in her office mailbox. According to Beatty, the anonymous document "outlin[ed] some things that then Deputy Chief Gary Brown was doing or conducting that was [sic] unauthorized." Beatty clarified that the document did not specifically refer to an investigation about the Manoogian Mansion party or to EPU officer investigations, but stated that Deputy Chief Brown was conducting an "unauthorized investigation."
Beatty testified that, in a ten-minute conversation, she told Mayor Kilpatrick about the memorandum from Deputy Chief Brown and Chief Oliver a day or two after she received it. According to Beatty, she advised Mayor Kilpatrick that Chief Oliver recommended no further investigation about the EPU officers. However, Beatty told Mayor Kilpatrick about the anonymous document she received and she recommended that Brown be removed as deputy chief. Beatty testified that she did not show the anonymous document to Mayor Kilpatrick because she destroyed it before she disclosed its existence to him.
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