Egan v. City of Detroit

• Decision Date: 18 June 1986
• Docket Number: Docket No. 80489
• Citation: 150 Mich.App. 14,387 N.W.2d 861
• Parties: Stuart EGAN, Plaintiff-Appellee, Cross-Appellant, v. CITY OF DETROIT, a Michigan municipal corporation, Defendant-Appellant, Cross- Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 861

387 N.W.2d 861

150 Mich.App. 14

Stuart EGAN, Plaintiff-Appellee, Cross-Appellant, v. CITY OF DETROIT, a Michigan municipal corporation,

Defendant-Appellant, Cross- Appellee.

Docket No. 80489.

Court of Appeals of Michigan.

Submitted Jan. 15, 1986.

Decided March 18, 1986.

Released for Publication June 18, 1986.

John A. Stevens, Bloomfield Hills, for Egan.

Donald Pailen, Corp. Counsel, Abigail Elias, Deputy Corp. Counsel, and Thomas

L. Walters and Christopher E. Mast, Asst. Corp. Counsel, for City of Detroit.

Before HOOD, P.J., and J.H. GILLIS and BATZER, ^* JJ.

PER CURIAM.

Defendant, City of Detroit, appeals as of right from a circuit court decision to grant plaintiff Stuart Egan's motion for summary judgment on his petition for superintending control. Through the petition, plaintiff alleged certain deficiencies in the veteran's preference act discharge procedures followed by the city. M.C.L. Sec. 35.401 et seq.; M.S.A. Sec. 4.1221 et seq. Plaintiff, a senior computer systems analyst with the city, was discharged on May 24, 1976, for "official misconduct, habitual, serious or wilful neglect in the performance of duty and incompetency". As an honorably discharged veteran, plaintiff demanded a hearing under the veteran's preference act (VPA).

Pursuant to the act, Mayor Coleman Young referred the matter to Alfred Sawaya, supervising assistant corporation counsel with the city law department, for a fact-finding hearing. Hearings were conducted from July 28, 1976, through January 31, 1978, when closing arguments were presented. The city submitted its post-hearing brief on May 3, 1978, but a reply brief was not filed until September 22, 1978. This was apparently due to some concern as to whether Mr. Sawaya would disqualify himself after he allegedly remarked to plaintiff that he would be unable to submit a fair and unbiased report to the mayor. The hearing officer did not submit his report to the Mayor until June, 1981, almost three years later. On July 6, 1981, plaintiff filed a circuit court petition for mandamus and injunctive relief, reinstatement and damages. Only then did the city inform plaintiff that the hearing report had been submitted to the mayor June 24, 1981.

When plaintiff sought to obtain a copy of the hearing report, the city refused to produce it until ordered to do so by the circuit court on December 18, 1981. The city, arguing that the report was irrelevant and privileged, unsuccessfully sought an interlocutory appeal to this Court. Plaintiff ultimately received a copy of the Sawaya report in May, 1982. In the interim, on December 4, 1981, the mayor issued his determination sustaining the discharge. On December 16, 1981, plaintiff filed his petition for superintending control with the circuit court.

Alleging that the hearing officer's report contained no findings of fact, plaintiff moved for summary judgment and a hearing was held on March 25, 1983. Although the trial court agreed that there were no factual findings in the Sawaya report, he initially denied summary judgment on the assumption that the mayor had complied with the procedures set forth in the statute. Plaintiff then filed three requests for admissions with the city seeking to discover whether the mayor had read the hearing transcripts. When the city failed to respond to these discovery requests, plaintiff renewed his summary judgment motion, and the trial court, concluding that the matters in the request for admissions must be deemed admitted, ruled that, since the hearing examiner's report was inadequate and the mayor did not personally review the transcripts, plaintiff had been denied his right of due process. Defendant's first two claims on appeal arise from this order.

On January 6, 1984, the circuit court entered an order for reinstatement of plaintiff and he returned to work shortly thereafter. An order and modified order to correct a mathematical mistake in his back pay and benefits award were entered on August 24, 1984, and September 7, 1984. Defendant's third claim of error concerns this order. Plaintiff has cross-appealed from this order claiming that he has not been made whole by the back pay and benefits awards.

The threshold issue in this case concerns the Michigan veteran's preference act, and specifically Sec. 402, which outlines the hearing procedures under the act. Section 402 states, in relevant part:

"No veteran or other soldier, sailor, marine, nurse or member of women's auxiliaries as indicated in the preceding section holding an office or employment in any public department or public works of the state or any county, city or township or village of the state, * * * shall be removed or suspended, * * * from such office or employment except for official misconduct, habitual, serious or willful neglect in the performance of duty, extortion, conviction of intoxication, conviction of felony, or incompetency; and such veteran shall not be removed, transferred or suspended for any cause above enumerated from any office or employment, except after a full hearing * * * before the mayor of any city * * * and at such hearing the veteran shall have the right to be present and be represented by counsel and defend himself against such charges: * * * Provided, however, That where such veteran has been removed, transferred, or suspended other than in accordance with the provisions of this act, he shall file a written protest with the officer whose duty under the provisions of this act it is to make the removal, transfer, or suspension, within 30 days from the day such veteran is removed, transferred, or suspended; otherwise the veteran shall be deemed to have waived the benefits and privileges of this act: Provided, however, Said hearing shall be held within 30 days of filing such notice: Provided further, That the mayor of any city * * * may refer any protest where a veteran is removed, transferred, suspended or discharged, to the legal department of such city or village for a hearing. The legal department shall act as a fact finding body and shall have the power to examine witnesses, administer oaths and do all those things which the mayor could do hereunder: Provided further, That the findings shall be transmitted to the mayor in writing by the legal department, whereupon the mayor shall examine the transcript of the hearing and make a decision based on the transcript thereof * * *." M.C.L. Sec. 35.402; M.S.A. Sec. 4.1222.

As noted above, Hearing Officer Sawaya reported the results of plaintiff's VPA hearing to Mayor Young in a letter dated June 24, 1981. By letter dated December 4, 1981, Mayor Young upheld plaintiff's 1976 discharge. Plaintiff then filed a petition for superintending control alleging numerous deficiencies in the city's discharge procedures. At a hearing held March 25, 1983, plaintiff argued that the hearing officer's report was in total noncompliance with the statutory language requiring that the hearing officer make findings of fact. Plaintiff suggested that, with such a deficient report, the mayor could not have used the report to facilitate his review of the transcript as is required under the VPA. While agreeing with plaintiff's characterization of the hearing report as totally inadequate, the trial court concluded that summary judgment was not appropriate since the mayor might have based his decision upon his own review of the transcripts without relying upon the inadequate report.

Subsequently, however, plaintiff posed three requests for admissions to the city in an attempt to discover whether Mayor Young had in fact personally reviewed the hearing transcripts. When no response was received from the city, plaintiff renewed his summary judgment motion. In an opinion dated December 12, 1983, the trial court indicated that due to the city's failure to respond to the request for admissions, it must be concluded that the mayor did not personally examine the transcript. Thus, plaintiff's summary judgment motion alleging a deprivation of due process hinged upon the sufficiency of the findings of fact made by the hearing examiner. Since these findings were clearly inadequate under the act, the court found that plaintiff's due process rights had been denied.

On appeal, defendant first attacks this finding by arguing that the trial court exceeded the scope of review, which defendant claims is limited to determining whether plaintiff's discharge was supported by competent, material and substantial evidence on the whole record. We agree with defendant that, where the procedures outlined in the act are followed and a proper decision is rendered by the mayor, the circuit court review of that decision is limited to the review function claimed by the defendant. DeGraaf v. City of Allegan, 91 Mich.App. 266, 270-271, 283 N.W.2d 719 (1979). However, a preliminary issue was presented to the trial court in the instant case, i.e., whether the procedures outlined in Sec. 402 were violated by the defendant. As noted earlier, Sec. 402 provides that, where such matters as these are referred to the city law department, the findings of fact made by the department "shall be transmitted to the mayor in writing * * *, whereupon the mayor shall examine the transcript of the hearing and make a decision based on the transcript thereof * * * ". If, as found by the trial court here, the law department failed to submit fact-findings to the mayor and the mayor did not examine the hearing transcripts, the mayor's decision could not have been based upon competent, material and substantial evidence in the record.

The essence of defendant's argument is that so long as the record contains sufficient evidence it is not relevant whether the mayor's decision resulted from an examination of the record and consideration of the evidence. Aside from the fact that such a proposition ignores the explicit requirements of the statute, the implication is that the circuit court should be expected to undertake a review of...