O'Connor v. Oakland County Sheriff's Dept.
| Decision Date | 11 August 1988 |
| Docket Number | Docket No. 102459 |
| Citation | 169 Mich.App. 790,426 N.W.2d 816 |
| Parties | David O'CONNOR, Appellant, v. OAKLAND COUNTY SHERIFF'S DEPARTMENT, Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Arthur Jay Weiss, Farmington Hills, for appellant.
Gordon R. Wyllie, Asst. Oakland County Corp. Counsel, Pontiac, for appellee.
Before HOOD, P.J., and CYNAR and BURNS, * JJ.
David O'Connor, an Oakland County road patrol deputy, appeals as of right from an April 20, 1987, opinion which affirmed in part and reversed in part a decision of the Oakland County Personnel Appeal Board (PAB) and a July 16, 1987, opinion and order denying O'Connor's motion for reconsideration.
On December 20, 1985, O'Connor was given a written notice of dismissal from his employment with the sheriff's department. The dismissal was based on charges that O'Connor had violated three merit system rules due to his conduct at a bar on December 3, 1985. The dismissal notice indicated that O'Connor, who was off duty and out of uniform, was at the Stable Saloon in Lake Orion, Michigan, in an intoxicated condition. A bartender saw O'Connor in the men's bathroom with a female who was performing an act of fellatio. When O'Connor was ordered out of the bar, he and the female proceeded to the ladies' bathroom. When the bartender checked in the ladies' restroom, he saw clothes hanging on the stall divider. After leaving the ladies' bathroom, O'Connor was again ordered out of the bar. As he was leaving, O'Connor allegedly threatened the bartender by warning him about driving on Oakland County roads.
Upon being dismissed, O'Connor appealed the decision to the PAB. On the last day of the three days of hearings, the PAB issued a written opinion. In the opinion, the PAB dismissed the charges of "immoral conduct" and "conduct unbecoming an officer" for O'Connor's alleged sexual activities in the restrooms. However, the PAB found that O'Connor improperly used his position as an officer by actually threatening the bartender. As a result, the PAB reversed the dismissal action, ordered a seventy-five-day suspension without pay, and required O'Connor to attend and participate in certain alcohol abuse programs.
On March 25, 1986, the sheriff's department appealed to circuit court the decision of the PAB claiming that the PAB erred in dismissing the charges stemming from O'Connor's alleged sexual activities in the bathrooms. O'Connor filed a cross-appeal from the PAB's determination that he improperly used his position when he threatened the bartender about driving on the county roads.
On April 20, 1987, the trial court issued an opinion. The court concluded that the alleged activities in the bathrooms were sufficient to sustain the immoral conduct and conduct unbecoming an officer charges since they could support a criminal charge for gross indecency pursuant to M.C.L. Sec. 750.338b; M.S.A. Sec. 28.570(2). The court then remanded the case to the PAB for further consideration of the charges and presentation of additional evidence by the parties. With respect to O'Connor's cross-appeal, the trial court upheld the PAB's decision of the seventy-five-day suspension without pay.
O'Connor moved for reconsideration, arguing that the trial court lacked subject matter jurisdiction to entertain an appeal from the PAB. The court declined to consider the motion on the basis that MCR 2.119(F) did not permit reconsideration since this was an appeal. Subsequently, O'Connor filed the instant appeal, raising five issues.
First, O'Connor alleges that the trial court was without subject matter jurisdiction to review the decision of the PAB. We agree.
This very issue was recently decided in Eckstein v. Kuhn, 160 Mich.App. 240; 408 N.W.2d 131 (1987), which involved an attempt by the defendants to seek judicial review in Oakland Circuit Court over a decision by the PAB. The Court affirmed the trial court's finding that it lacked subject matter jurisdiction to hear the defendants' appeal from the decision of the PAB. Id., pp 245-246, 408 N.W.2d 131. In reaching this conclusion, the Eckstein Court initially cited art. 6, Sec. 28, of the Michigan Constitution:
"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law."
The PAB is a local administrative agency, which "exists under the constitution," and performs a quasi-judicial function when it renders a decision on an appeal by a discharged employee. Eckstein, supra, pp 243-244, 408 N.W.2d 131. However, art. 6, Sec. 28 does not guarantee the defendant a right of appeal of the PAB's decision. The Eckstein panel based this conclusion upon art. 6, Sec. 28's language, "as provided by law," and cases interpreting that language:
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...service commissions); and Eckstein v. Kuhn, 160 Mich.App. 240, 243, 408 N.W.2d 131 (1987); O'Connor v. Oakland Cty. Sheriff's Dep't, 169 Mich.App. 790, 794, 426 N.W.2d 816 (1988) (finding the Oakland County Personnel Appeal Board "a local administrative agency, which 'exists under the Const......