Hendricks v. Police and Fire Dept. Civil Service Commission of City of Sterling Heights

• Decision Date: 19 September 1978
• Docket Number: 77-4381,Docket Nos. 77-4380
• Citation: 85 Mich.App. 646,272 N.W.2d 170
• Parties: Leonard C. HENDRICKS, Plaintiff, v. POLICE AND FIRE DEPARTMENT CIVIL SERVICE COMMISSION OF CITY OF STERLING HEIGHTS, Defendant-Appellee, and Carl Timm, Intervening Defendant. Leonard C. HENDRICKS, Plaintiff-Appellee, v. POLICE AND FIRE DEPARTMENT CIVIL SERVICE COMMISSION OF CITY OF STERLING HEIGHTS, Defendant-Appellant, and Carl Timm, Intervening Defendant-Appellant. 85 Mich.App. 646, 272 N.W.2d 170
• Court: Court of Appeal of Michigan — District of US

Page 170

272 N.W.2d 170

Leonard C. HENDRICKS, Plaintiff, v. POLICE AND FIRE DEPARTMENT CIVIL SERVICE COMMISSION OF CITY

OF STERLING HEIGHTS, Defendant-Appellee,

and

Carl Timm, Intervening Defendant.

Leonard C. HENDRICKS, Plaintiff-Appellee, v. POLICE AND FIRE DEPARTMENT CIVIL SERVICE COMMISSION OF CITY

OF STERLING HEIGHTS, Defendant-Appellant,

and

Carl Timm, Intervening Defendant-Appellant.

Docket Nos. 77-4380, 77-4381.

85 Mich.App. 646, 272 N.W.2d 170

Court of Appeals of Michigan.

Sept. 19, 1978.

Released for Publication Dec. 18, 1978.

[85 MICHAPP 647] Thomas W. Jakuc, Warren, for Carl Timm.

Emil E. Cardamone, Warren, for Police and Fire Dept.

Paul J. O'Reilly and Frederick M. Cross, Jr., Sterling Heights, for Leonard C. Hendricks.

Before RILEY, P. J., and CAVANAGH and HENSICK ^*, JJ.

HENSICK, Judge.

Intervening defendant, Officer Carl Timm, employed by the Sterling Heights Police Department, was suspended from his job. He appealed to defendant Civil Service Commission of the City of Sterling Heights. The Commission ruled that the suspension was improper and ordered that Officer Timm be reinstated with back pay and that no charges be officially recorded.

Plaintiff, Sterling Heights City Manager, filed a complaint for superintending control in Macomb [85 MICHAPP 648] County Circuit Court seeking reversal of defendant's decision. The trial court reversed the Commission, stating that it had committed an error of law in ruling that Officer Timm's suspension was improper.

The issue here involves a section of the Firemen and Policemen Civil Service Act, 1935 P.A. 78; M.C.L. § 38.501 Et seq.; M.S.A. § 5.3351 Et seq. Section 14 of that act provides in relevant part:

"In event that the civil service commission shall sustain the action of the removing officer the person removed shall have an immediate right of appeal to the circuit court of the county wherein the city, village or municipality is situated. * * * The circuit court's decision shall be final, saving the employee, however, the right to petition the supreme court for a review of the court's decision. The removing officer and the person sought to be removed shall at all times, both before the civil service commission and upon appeal, be given the right to employ counsel to represent either of them before said civil service commission and upon appeal; should the person removed elect to appeal to the circuit court as hereinbefore provided."

Defendant Timm contends that this section provides for appeal only by the aggrieved employee. Plaintiff argues that, although § 14 makes no mention of the city's right to appeal an adverse ruling by defendant Commission, Const.1963, art. 6, § 28 gives him this right. That constitutional provision makes all final decisions of administrative officers, which are judicial or quasi-judicial and affect private rights, subject to direct review by the courts as provided by law.

The resolution of this appeal does not require an interpretation of Const.1963, art. 6, § 28. Rather, the decisive question is whether plaintiff has standing to appeal a decision of the city's Civil [85 MICHAPP 649] Service Commission. "Only a person with a 'legal standing' can resort to the courts for relief from action of an administrative agency, whether the party resorting to the court avails himself of a statutory or nonstatutory remedy." 2 Am.Jur.2d, Administrative Law, § 575, p. 393. We conclude that plaintiff lacked standing to obtain review in the circuit court, and therefore, the circuit court's order was void.

The courts of this state have not addressed the precise question of a governmental officer's standing to contest the decision of an appeal board which reviews his decision. The majority of other courts which have addressed this issue have concluded that an administrative officer lacks standing to appeal the decision of a reviewing agency.

"The weight of authority negatives the right of an administrative officer of a governmental entity, or even the governmental entity or any representative thereof, to attack or avoid the decision of an agency of such governmental entity, which is authorized to review and reverse the determination of such administrative officer and does review and reverse that determination, except to the extent that legislation gives such administrative officer, the governmental entity or its representative the right to do so." (Citations omitted).

State ex rel. Broadway Petroleum Corp. v. City of Elyria, 18 Ohio St.2d 23, 29, 247 N.E.2d 471, 475 (1969); see also Mead v. Dept. of Health, Welfare & Rehabilitation, Services to the Blind Div., 91 Nev. 152, 532 P.2d 611 (1975); Pritchard v. Div. of Vocational Rehabilitation, Dept. of Health & Social Services, 540 P.2d 523 (Wyo.1975).

In the instant case, the city's Civil Service Commission was authorized to review and reverse the determination of the City Manager regarding Officer Timm's suspension. The City of Sterling Heights has adopted by ordinance the provisions of [85 MICHAPP 650] 1935 P.A. 78. The title to this act provides in relevant part:

"AN ACT to establish and provide a board of civil service commissioners in cities, villages and municipalities having full paid members in the fire and/or police departments; * * * to regulate the transfer, reinstatement, suspension and discharge of said officers, firemen and policemen * * *."

Section 2 of the act provides that the Civil Service Commission shall consist of 3 members, 1 to be appointed by the principal elected officer of the city with approval of the legislative body, the second to be elected by a majority vote of the fire and/or police department members, and the third member to be selected by the other two members. Thus, the Legislature saw fit to make the Civil Service Commission, comprised of three members with variable backgrounds and allegiances, ultimate guardian of the firemen's and policemen's interest at the administrative level, as opposed to a single individual such as the City Manager. Kansas City v. Reed, 546 S.W.2d 727 (Mo.App.1977). The fact that the Legislature was silent regarding appeals by the city, while it specifically addressed appeals by the removed party, is significant. It indicates that, in drafting the statute, the Legislature considered the decision of the Civil Service Commission as a final decision of the city and thus the city would not appeal its own decision.

The act provides for significant ties between the city and the commission. Section 9 provides that the commission shall make an annual report to the mayor and that any suggestions for changes in the commission shall be made to the mayor in this [85 MICHAPP 651] report. Section 8 provides that it is the duty of the city to aid the commission in carrying out the provisions of this act, including providing offices, supplies and printing services. The city clerk is the "ex officio" clerk of the commission (§ 5), and the city attorney represents the commission in legal matters. (In this matter, independent counsel was obtained to advise defendant Civil Service Commission.) In addition, § 4 provides that the mayor "shall at any time remove any commissioner for incompetency, dereliction of duty, malfeasance in office or any other good cause". The removal is for a period of 10 days and if at the end of the 10-day period the commissioner fails to answer, he is deemed removed; otherwise the statute provides that the...