Frohriep v. Flanagan

• Decision Date: 10 May 2007
• Docket Number: Docket No. 273426.
• Citation: 739 N.W.2d 645,275 Mich. App. 456
• Parties: Eric C. FROHRIEP and All Others Similarly Situated, Plaintiffs-Appellants, v. Michael P. FLANAGAN, Jeremy M. Hughes, and Frank P. Ciloski, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

739 N.W.2d 645

275 Mich. App. 456

Eric C. FROHRIEP and All Others Similarly Situated, Plaintiffs-Appellants, v. Michael P. FLANAGAN, Jeremy M. Hughes, and Frank P. Ciloski, Defendants-Appellees.

Docket No. 273426.

Court of Appeals of Michigan.

Submitted May 1, 2007, at Lansing.

Decided May 10, 2007, at 9:00 a.m.

Released for Publication August 29, 2007.

Hubbard, Fox, Thomas, White & Bengtson, P.C. (by Michael G. Woodworth, Thomas A. Bengtson, and Mark T. Koerner), Lansing, for the plaintiffs.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Denise C. Barton, Assistant Attorney General, for the defendants.

Before: MARKEY, P.J., and SAWYER and BANDSTRA, JJ.

MARKEY, J.

This lawsuit is one of several filed in state and federal courts challenging the actions of the Michigan Department of Education (MDE) in implementing certain school safety legislation that took effect on January 1, 2006.¹ The named plaintiff, a certified teacher and a member of the Michigan Education Association (MEA), alleges that defendants falsely identified him and others similarly situated as having criminal convictions, which rendered defendants liable for several torts, including libel per se, interference with plaintiffs' business expectancy, intentional infliction of emotional distress, and invasion of privacy. The trial court granted defendants' motion for summary disposition under MCR 2.116(C)(6). Plaintiffs appeal by right. We affirm, but on grounds other than those assigned by the trial court.

I. Summary of Facts and Proceedings

All three defendants are high-ranking officials of the MDE. Defendant Flanagan was and is the superintendent of public instruction, the principal executive officer of the MDE. Const. 1963, art. 8, § 3; Berlin v. Superintendent of Public Instruction, 181 Mich.App. 154, 161, 448 N.W.2d 764 (1989). Defendant Hughes was and is the chief academic officer and deputy superintendent of the MDE. Defendant Ciloski was and is the supervisor of client services.

The alleged torts in this case arose from the effort of the MDE to implement 2005 PA 130, which amended § 1535a of the Revised School Code (RSC), MCL 380.1 et seq., and 2005 PA 131, which added § 1230d to the RSC, effective January 1, 2006. Subsection 7 of § 1230d provided:²

The department of information technology shall work with the department [of education] and the department of state police to develop and implement an automated program that does a comparison of the department's list of registered educational personnel with the conviction information received by the department of state police. Unless otherwise prohibited by law, this comparison shall include convictions contained in a nonpublic record. The department and the department of state police shall perform this comparison during January and June of each year until July 1, 2008. If a comparison discloses that a person on the department's list of registered educational personnel has been convicted of a crime, the department shall notify the superintendent or chief administrator and the board or governing body of the school district, intermediate school district, public school academy, or nonpublic school in which the person is employed of that conviction. [MCL 380.1230d(7), as adopted by 2005 PA 131; emphasis added.]

Subsection 15 of § 1535a of the RSC, effective January 1, 2006, provided:³

The department of information technology shall work with the department [of education] and the department of state police to develop and implement an automated program that does a comparison of the department's list of individuals holding a teaching certificate or state board approval with the conviction information received by the department of state police. Unless otherwise prohibited by law, this comparison shall include convictions contained in a nonpublic record. The department and the department of state police shall perform this comparison during January and June of each year until July 1, 2008. If a comparison discloses that a person on the department's list of individuals holding a teaching certificate or state board approval has been convicted of a crime, the department shall notify the superintendent or chief administrator and the board or governing body of the school district, intermediate school district, public school academy, or nonpublic school in which the person is employed of that conviction. [MCL 380.1535a(15), as amended by 2005 PA 130, effective January 1, 2006; emphasis added.]

Plaintiffs allege in their complaint that before January 1, 2006, defendants began gathering the data required to make the comparisons that the new legislation requires. Plaintiffs attached to their complaint an affidavit by defendant Hughes dated February 9, 2006, which avers that the MDE "undertook an initial attempt late last year, before the legislation went into effect, to perform the database comparison" required by subsection 7 of § 1230d. Hughes acknowledges in his affidavit that it was expected the comparison would result in some "false hits" because some data fields, such as social security numbers, might match, but "the associated educational personnel had not in fact been convicted of the associated conviction." Further, Hughes averred that the MDE "expected that final resolution and final confirmation of the information disclosed on the comparison would be resolved by the school district, or public school academy in consultation with the employee because this would be the most expeditious way to verify the conviction information."

Plaintiffs allege that on November 8, 2005, general counsel for the MEA wrote to defendant Flanagan expressing concern that the release of inaccurate criminal history records would irreparably harm its members. Counsel requested that the criminal convictions list not be released publicly until those named were afforded an opportunity to demonstrate that they had been erroneously listed. By letter dated December 22, 2005, defendant Flanagan responded. He noted that the law "specifically requires the [MDE] to notify the employer and does not speak to prior notification of the employee." Flanagan enclosed information regarding procedures to have the Michigan State Police correct inaccuracies in the criminal histories it records. Finally, Flanagan suggested that counsel contact defendant Ciloski if counsel needed further clarification on the school safety legislation.

On January 30, 2006, the MEA filed a lawsuit in the Ingham Circuit Court against the MDE and defendant Flanagan in his official capacity as the superintendent of public instruction. Michigan Ed. Ass'n v. Michigan Dep't of Ed., Ingham Circuit Court (Docket No. 06-123-CZ). The MEA sought injunctive relief to protect its members' due process right to continued employment and to protect its members' reputations from irreparable harm. The MEA also sought declaratory relief to prevent the public release of the criminal history comparison data regarding school employees. Circuit Judge Joyce Draganchuk issued an order on the day the complaint was filed temporarily restraining the MDE and its officers, agents, and employees from releasing a list of school employees to the public. After a hearing, the temporary restraining order (TRO) was converted to a preliminary injunction on February 10, 2006, that prohibited the MDE, Superintendent Flanagan, or any other governmental entity in possession of the comparison data compilation from disseminating it to the public.

Notwithstanding the MEA lawsuit and the TRO, the MDE, through a letter by defendant Flanagan dated January 31, 2006, distributed to the various school districts, intermediate school districts, public school academies, and nonpublic schools throughout the state, lists of employees in the pertinent school system with criminal convictions. These lists were distributed on or about February 1, 2006. Flanagan's letter requested the recipient school administrators to report on the status of the listed employees to Ciloski within 60 days. The letter also enclosed instructions for correcting mistaken or inaccurate conviction records. Flanagan's letter also explained that an employee with a conviction for a "listed offense"⁴ must be dismissed; an employee with a felony conviction for an offense not listed could be retained by the school district if the school board and its superintendent both agreed in writing to do so; and the school district could retain without further action employees with convictions for misdemeanors that were not "listed offenses." Plaintiffs allege the list of school employees with criminal convictions sent to their employers falsely accuses them of having criminal convictions.

By letters dated February 21, 2006, plaintiffs' counsel demanded retractions from the MDE and defendants on behalf of plaintiff Frohriep and all similarly situated school employees. Counsel also included a notice of intent to file a claim pursuant to MCL 600.6431. An assistant attorney general (AAG) responded by letter dated February 24, 2006. The AAG notified plaintiffs' counsel that a federal temporary restraining order had been entered on February 14, 2006, which required the MDE to recall the lists of school employees with alleged convictions previously provided to local boards of education or other agencies throughout the state. AFT Michigan[⁵] v. Michigan, unpublished order of the United States District Court, Eastern District of Michigan, issued February 14, 2006, 2006 WL 335712 (Docket No. 06-10612).⁶ The AAG also advised plaintiffs' counsel that on February 16, 2006, Superintendent Flanagan sent correspondence to schools in the state recalling the lists of school employees with identifiers matching those in the State Police criminal history database.

According to defendants, plaintiffs first filed this lawsuit in the Court of Claims. Defendants removed that suit to federal court pursuant to 28 U.S.C. 1441. On March 31, 2006, the...