Crider v. State

Decision Date21 October 1981
Docket NumberDocket No. 57044
Citation313 N.W.2d 367,110 Mich.App. 702
PartiesRobert CRIDER, Joseph Koenig and George Gredda, Individually and on behalf of a class of similarly situated individuals, Michigan State Police Command Officers Association, Jointly and Severally, Plaintiffs-Appellees, v. The STATE of Michigan, The Michigan Civil Service Commission and its individualcommissioners, Michael Dively, Harriet B. Rotter, and Walter Green, StatePersonnel Director, Director of and the Department of Management and Budget,Department ofTreasury, Michigan State Police, Governor of the State of Michigan, Jointly andSeverally, Defendants-Appellants. 110 Mich.App. 702, 313 N.W.2d 367
CourtCourt of Appeal of Michigan — District of US

[110 MICHAPP 706] Bushnell, Gage, Doctoroff & Reizen, Southfield by Martin M. Doctoroff and John K. Parker, for plaintiffs-appellees.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., and Jann Ryan Baugh and Robert C. Ward, Jr., Asst. Attys. Gen., for defendants-appellants.

Fraser, Trebilcock, Davis & Foster, P.C., Lansing by Michael E. Cavanagh, for amicus curiae Michigan State Emp. Ass'n.

Before J. H. GILLIS, P. J., and T. M. BURNS and KAUFMAN, JJ.

T. M. BURNS, Judge.

Defendants appeal as of right a March 18, 1981, lower court order enjoining them from subjecting plaintiffs to a statewide program of one-day layoffs and directing them to compensate plaintiffs for a layoff that occurred on January 2, 1981.

[110 MICHAPP 707] Since 1979, the state government has initiated several voluntary layoff programs in an effort to ease the state's increasingly severe financial situation. Many members of the plaintiff command officers' unit participated in those programs. However, in 1980, various officials including the governor felt that the voluntary programs failed to satisfactorily reduce payroll costs.

A task force, formed by the governor, studied further cost reduction programs including an involuntary plan that would permit up to six layoffs of one day each for certain state employees and would reduce their corresponding bi-weekly pay for each pay period in which a one-day layoff occurred. Under the program neither the hourly rate of pay nor the employees' fringe benefits would be affected.

On November 26, 1980, a letter was received by the defendant State Personnel Director, who is the chief administrator of the defendant Civil Service Commission (hereinafter CSC), from the Office of State Employer. This letter proposed certain changes in the CSC rules that would, among other things, facilitate the one-day layoff scheme. On the same day, the State Personnel Director was notified by the governor of his intention to request six one-day shutdowns of state government offices during the 1981 calendar year.

Soon thereafter, the State Personnel Director circulated to "all appointing authorities, personnel officers and recognized employee organizations" copies of the proposed amendments to the CSC rules. This notice indicated that all of the proposed rule changes would be on the agenda for the CSC meetings scheduled for December 18 and 19, 1980. On the day of the first scheduled CSC meeting, the governor sent a second letter to the CSC formally [110 MICHAPP 708] advising them of the involuntary layoff plan and requesting that the CSC modify its rules to accommodate the plan.

At the December 18 and 19 meetings, the CSC considered temporary modifications of its rules under the procedures set forth in CSC Rule 35, which provides:

"35.1 Temporary Modifications.-Upon finding that modification or waiver of any of these rules, Commission regulations or procedures is reasonable, appropriate, lawful and necessary for the orderly and efficient administration of the State Civil Service, the Commission shall make such modification or waiver. Upon similar grounds, the State Personnel Director may temporarily modify or waive any of these rules, unless such waiver or modification shall be inconsistent with policies adopted by the Commission, and shall report such waiver or modification to the Commission for approval. If any employee, appointing authority or citizen believes such waiver or modification is arbitrary, capricious or otherwise unlawful, a grievance may be filed with the Commission, and the Commission will order such hearings as are appropriate for the resolution of such grievance.

"35.2 Amendments.

"35.2a Publication.-Proposed revisions of these rules shall be circulated by the state personnel director to all appointing authorities and recognized employee organizations at least 30 days in advance of consideration for final approval by the commission. Such notice shall provide opportunity for comment and shall include the date and place of the meeting at which the commission intends final consideration "35.2b Final Consideration.-Rules which are not substantially altered as published shall become effective upon approval.

"If the course of final consideration the proposed revision as published is substantially altered, the commission may order that the rule as approved shall [110 MICHAPP 709] again be published to appointing authorities and recognized employee organizations allowing 15 days from the date of publication for the filing of objections and shall not become effective for 30 days following such publication.

"35.2c Reconsideration.-The state personnel director is authorized to delay the effective date of such rule until the next meeting of the commission if objections filed merit reconsideration.

"35.2d Emergency Action.-In emergency situations requiring immediate action, the commission may waive the requirements of notice and approve revisions of these rules, but only upon unanimous vote of a quorum and issuance of a statement justifying such waiver." (Emphasis added.)

The CSC determined that an emergency situation existed which required immediate action under Rule 35.2d and, therefore, waived the formal 30-day notice requirement for rule changes set forth in Rule 35.2a. The CSC then amended its existing rules by enacting new CSC Rule 38.1, which provides:

"Upon notice to the Commission from the Governor that he intends to request the appointing authorities lay off all or a portion of the state's classified employees one day, in order to avoid long-term layoffs in specific program areas in certain departments, the Commission shall consider a 72-hour pay period as a complete bi-weekly pay period for all purposes except compensation. Employees affected are those determined by individual appointing authorities not to be providing immediate essential public services and not covered by collective bargaining agreement limiting the right to lay off.

"Appointing authorities shall be responsible for providing each affected employee appropriate advance notice not to report to work. This section shall be invoked nor more than six times during the fiscal year, and shall expire on September 30, 1981." (Emphasis added.)

[110 MICHAPP 710] None of the plaintiffs filed a grievance with the CSC pursuant to Rule 35.1 on account of Rule 38.1.

Neither the governor nor the CSC has authority to lay off any state employees outside of their respective departments. Under the one-day layoff scheme, only department heads are authorized to lay off employees. Plaintiffs received notification of the first layoff day, January 2, 1981, by a LEIN message on December 22, 1981, nine days prior to the filing of this lawsuit.

On December 31, 1980, plaintiffs filed a complaint for injunctive relief in the Oakland County Circuit Court. On that day, an order was signed by the lower court judge directing defendants to show cause by January 8, 1981, why a restraining order should not be entered.

On January 2, 1981, approximately 47,000 state employees were laid off, saving the State of Michigan about $4,000,000 in salaries. The only employees exempted from the layoff were those covered by a previously existing collective bargaining agreement limiting the right to lay off and those found by their respective department heads to be performing "immediate essential public services", under CSC Rule 38.1.

Michigan State Police troopers and sergeants are covered by a collective bargaining agreement prohibiting layoffs and, thus, were exempted from the January 2, 1981, layoff. However, the plaintiff command officers, who are members of the State Police holding the rank of lieutenant or higher, are not covered by a collective bargaining agreement and, as a result, nearly all of them, approximately 300, were laid off on January 2, 1981. Only six command officers were exempted from the layoffs: three lieutenants on separate eight-hour shifts at the State Police headquarters in East [110 MICHAPP 711] Lansing, two shift commanders assigned to Detroit Post No. 29, and one lieutenant post commander at Charlevoix. These six officers were deemed by the Department of State Police to be performing "immediate, essential services". Those who were assigned to work were paid at their ordinary rate of pay and not given overtime pay unless otherwise qualified for it.

A hearing to show cause why an order should not enter restraining defendants from laying off plaintiffs was set for January 14, 1981. On January 9, 1981, defendants moved for accelerated judgment. The motion was premised on three grounds: that the circuit court lacked jurisdiction and this action should have been brought in the Court of Claims, that the plaintiffs had failed to exhaust appropriate administrative remedies of filing a grievance under CSC Rule 35, and that plaintiffs had not shown irreparable harm. The trial judge took the motion for accelerated judgment under advisement. On January 16, 1981, the trial judge granted plaintiffs' motion for a temporary restraining order.

On March 19, 1981, the trial judge disposed of all pending motions. The judge denied defendants' motion for accelerated judgment, enjoined ...

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