Frohriep v. Flanagan

• Decision Date: 29 April 2008
• Docket Number: Docket No. 273426.
• Citation: 278 Mich. App. 665,754 N.W.2d 912
• Parties: Eric C. FROHRIEP and All Others Similarly Situated, Plaintiffs-Appellants, v. Michael P. FLANAGAN, Jeremy M. Hughes, and Frank P. Ciloski, Defendants-Appellees. (On Remand)
• Court: Court of Appeal of Michigan — District of US

754 N.W.2d 912

278 Mich. App. 665

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

Docket No. 273426.

Court of Appeals of Michigan.

Submitted January 7, 2008, at Lansing.

Decided April 29, 2008, at 9:00 a.m.

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

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Denise C. Barton, Assistant Attorney General, for Jeremy M. Hughes and Frank P. Ciloski.

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

ON REMAND

PER CURIAM.

This case returns to this Court on remand from our Supreme Court, which reversed in part our judgment in Frohriep v. Flanagan, 275 Mich.App. 456, 739 N.W.2d 645 (2007) (Frohriep I). Plaintiffs brought this action alleging defendants were liable for the intentional torts of libel per se, interference with business expectancy, intentional infliction of emotional distress, and false-light invasion of privacy. Although the trial court erred by granting defendants' motion for summary disposition under MCR 2.116(C)(6), we held that the trial court nevertheless properly granted defendants summary disposition because defendants were immune from tort liability under MCL 691.1407(2) and (5). In lieu of granting leave to appeal, our Supreme Court reversed this Court's judgment with regard to defendants Jeremy M. Hughes and Frank P. Ciloski, opining:

MCL 691.1407(2) does not apply to these defendants because they are individual government employees who are not provided immunity under MCL 691.1407(5), and because the plaintiffs alleged intentional torts for which liability was imposed before July 7, 1986. MCL 691.1407(3) and Sudul v. Hamtramck, 221 Mich.App. 455, 458 (Corrigan, J.); 480-481 (Murphy, J.) (1997). We remand this case to the Court of Appeals for consideration of these defendants' remaining arguments. [Frohriep v. Flanagan, 480 Mich. 962, 741 N.W.2d 516 (2007) (Frohriep II).]

On remand, we conclude that plaintiffs failed to allege facts in avoidance of common-law qualified immunity in existence before July 7, 1986, which protected government officers, agents, and employees from tort liability. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 625-635, 363 N.W.2d 641 (1984). Alternatively, in the event we have misconstrued the scope of the remand order, we also conclude that plaintiffs failed to allege facts for which relief may be granted under the pleaded tort theories. MCR 2.116(C)(8). Accordingly, we again affirm the trial court's grant of summary disposition with regard to defendants Hughes and Ciloski.

I. Factual Background

This case arose from the efforts of the Michigan Department of Education (MDE) to implement 2005 PA 130, which amended MCL 380.1535a, § 1535a of the Revised School Code,¹ and 2005 PA 131, which added MCL 380.1230d, § 1230d of the Revised School Code. At the relevant time, subsection 7 of § 1230d provided:

The department of information technology shall work with the [MDE] and the department of state police to develop and implement an automated program that does a comparison of the [MDE]'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 [MDE] 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 [MDE]'s list of registered educational personnel has been convicted of a crime, the [MDE] 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 enacted by 2005 PA 131).]

Subsection 15 of § 1535a provided as follows:

The department of information technology shall work with the [MDE] and the department of state police to develop and implement an automated program that does a comparison of the [MDE]'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 [MDE] 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 [MDE]'s list of individuals holding a teaching certificate or state board approval has been convicted of a crime, the [MDE] 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).]

We refer to these acts and related legislation collectively as school-safety legislation, the obvious intent of which is to improve the safety of children attending Michigan's schools by removing persons with certain criminal convictions from school employment. Frohriep I, supra at 457 n. 1, 739 N.W.2d 645.

Defendant Michael P. Flanagan was, and apparently remains, the superintendent of public instruction, the MDE's principal executive officer. Defendant Hughes was the MDE's chief academic officer and deputy superintendent, and defendant Ciloski was the MDE's supervisor of client services.

In a letter from defendant Flanagan, the MDE distributed to the various school districts, intermediate school districts, public school academies, and nonpublic schools lists of employees in their respective school systems with criminal convictions and requested the various school administrators to advise defendant Ciloski of the status of the listed employees. The letter included instructions for correcting the records that were going to be furnished to those school employees who were matched with an entry in the criminal-history database. According to the letter, an employee with a conviction of a "listed offense" had to be dismissed; one with an unlisted felony conviction might be retained if the pertinent school board and superintendent so agreed in writing; and employees with convictions of unlisted misdemeanors might be retained without special action.

The named plaintiff is a certified teacher and a member of the Michigan Education Association (MEA). Alleging that defendants falsely identified him and others similarly situated as having criminal convictions, plaintiff Eric C. Frohriep brought suit, asserting theories of libel per se, interference with business expectancy, intentional infliction of emotional distress, and false-light invasion of privacy.

Plaintiff Frohriep attached to his complaint an affidavit by defendant Hughes attesting that the MDE "undertook an initial attempt ... before the legislation went into effect, to perform the database comparison" and acknowledged the expectation that the comparison would result in some "false hits." According to Hughes, a "false hit" could arise when the MDE database was compared to the state police criminal-history database through "crossmatching of various data fields, such as name or social security number," and "where some information matched but the person identified on the registry of educational personnel had not in fact been convicted of the associated conviction in the criminal history database." Hughes additionally stated that the MDE "expected that final resolution and final confirmation of the information disclosed on the comparison would be resolved by the school district, intermediate school district, or public school academy in consultation with the employee because this would be the most expeditious way to verify the conviction information." Hughes further averred that the MDE expected that once a school district and an employee were notified of a comparison "`hit', the district would confirm its accuracy and take appropriate action."

Defendants moved the trial court for summary disposition under MCR 2.116(C)(4), (6), (7), and (8). The trial court granted the motion pursuant to MCR 2.116(C)(6), on the ground that this action was precluded because other related litigation was then in progress, namely Michigan Ed. Ass'n v. Michigan Dep't. of Ed., Ingham Circuit Court (Docket No. 06-123-CZ), where the MEA sought injunctive relief to protect its members' reputations and declaratory relief to prevent public release of the comparison data concerning school employees.

On plaintiffs' appeal, this Court held that the trial court erred in failing to recognize that the instant lawsuit and the one cited in support of the motion under MCR 2.116(C)(6) involved different claims and different parties, so the pendency of the MEA action was no bar to this lawsuit. Frohriep I, supra at 464-466, 739 N.W.2d 645. Rather than reverse and remand to the trial court, however, we concluded that the trial court had properly granted summary disposition because "plaintiffs' tort claims were barred by immunity granted by law." Id. at 467, 739 N.W.2d 645. Specifically, we discussed the "common law of governmental immunity from tort liability for governmental agencies and their employees," which our Supreme Court discussed in Ross, supra. Frohriep I, supra at 467, 739 N.W.2d 645. Ultimately, we concluded that defendant Flanagan, because he was the highest executive official of the MDE, was absolutely immune from tort liability pursuant to MCL 691.1407(5).² Frohriep I, supra at 469-472, 739 N.W.2d 645. With respect to defendants Hughes and Ciloski, we opined, id. at 473, 739 N.W.2d 645:

[P]laintiffs have...