Hughes v. Region Vii

• Decision Date: 29 November 2007
• Docket Number: Docket No. 274939.
• Citation: 744 N.W.2d 10,277 Mich. App. 268
• Parties: Bob HUGHES, Plaintiff-Appellant, v. REGION VII AREA AGENCY ON AGING, Brian K. Elder, Patrick Beson, Elfrieda Conrad, Yvonne Corbat, Willie Hayes, Kenneth Hess, Jordan Lockmiller, Thompson Moffit, Richard Pasiak, Anthony Pawleski, Adolph Presidio, Howes Smith, and Mike Wegner, Defendants-Appellants, and Learman, Peters, Sarow & McQuillan, P.L.C., Defendant.
• Court: Court of Appeal of Michigan — District of US

744 N.W.2d 10

277 Mich. App. 268

Bob HUGHES, Plaintiff-Appellant, v.REGION VII AREA AGENCY ON AGING, Brian K. Elder, Patrick Beson, Elfrieda Conrad, Yvonne Corbat, Willie Hayes, Kenneth Hess, Jordan Lockmiller, Thompson Moffit, Richard Pasiak, Anthony Pawleski, Adolph Presidio, Howes Smith, and Mike Wegner, Defendants-Appellants, and Learman, Peters, Sarow & McQuillan, P.L.C., Defendant.

Docket No. 274939.

Court of Appeals of Michigan.

Submitted November 15, 2007, at Lansing.

Decided November 29, 2007, at 9:05 a.m.

Released for Publication January 31, 2008.

Kim A. Higgs, Bay City, for the plaintiff.

Braun Kendrick Finkbeiner P.L.C.(by Scott C. Strattard and Timothy S. Arnold), Saginaw, for the defendants.

Plunkett & Cooney, P.C.(by Christine D. Oldani and Patrick D. Filbin), Detroit, for Brian K. Elder.

Before: DONOFRIO, P.J., and HOEKSTRA and MARKEY, M.

PER CURIAM.

In this taxpayer suit for recovery of compensation paid and received in alleged violation of MCL 46.30a, plaintiffBob Hughes appeals as of right the trial court's opinion and order granting summary disposition in favor of defendants.¹Because we conclude that the prohibitions against appointment or employment of a county commissioner provided for under MCL 46.30a apply only to offices or entities under the direct and exclusive control of the county in which the commissioner sits, and that defendantRegion VII Area Agency on Aging(Region VII) is not such an office or entity, we affirm.

I.Basic Facts and Procedural History

At its heart, this case arises from the termination of Hughes's wife's employment with Region VII.As a result of receiving information that Hughes had threatened to criticize Region VII's handling of that matter during the broadcast of his radio show on station WHNN, defendantBrian Elder, acting `as legal counsel for Region VII, sent a letter to WHNN informing its general manager of Hughes's alleged threat and warning that Region VII would pursue legal action against the station for any defamatory statements Hughes made while on the air.

Alleging that Elder's letter was itself defamatory, Hughes subsequently sought to join a state law claim for defamation with a federal civil rights lawsuit filed by his wife against Region VII under 42 USC 1983.However, the federal court dismissed Hughes's claim, finding no independent or supplemental basis affording it jurisdiction over Hughes's state-law claim.

Following his unsuccessful attempt to litigate his allegations in, federal court, Hughes filed the instant suit in the Bay Circuit Court alleging defamation against Elder, his law firm, and Region VII.²In a first amended complaint, Hughes added the individual members of the Region VII board of directors as defendants and advanced an additional claim for alleged violation of MCL 46.30a, which provides, in relevant part, as follows (1)A member of the county board of commissioners of any county shall not be eligible to receive, or shall not receive, an appointment from, or be employed by an officer, board, committee, or other authority of that county except as otherwise provided by law.

(2) In case of an appointment or employment made in violation of this section, both the person making the appointment or employment and the person appointed or employed shall be liable for moneys paid to the person as salary, wages, or compensation in connection with the appointment or employment.In case the appointment or employment is made by a committee or board, a member of the committee or board at the time the appointment was made or contract of employment entered into shall be liable.An action for the recovery of salary, wages, or compensation paid in connection with any appointment or employment made in contravention of this section, may be maintained by a taxpayer of the county.The moneys recovered in the action shall be deposited in the county treasury to the credit of the general fund.

(3) The prosecuting attorney of the county, upon the request of the taxpayer, shall prosecute the action in the taxpayer's behalf.[Emphasis added.]

Alleging that Elder, as a member of the Bay County Board of Commissioners, was ineligible to serve as counsel for Region VII, Hughes generally complained that the provisions of MCL 46.30a prohibited Region VII's retention of Elder as its general counsel.

Region VII and its individual directors moved for summary disposition of Hughes's claims under MCR 2.116(C)(8) and (10).With regard to Hughes's claim under MCL 46.30a, these defendants argued that the statute plainly prohibits only the appointment or employment of a county commissioner "by an officer, board, committee, or other authority of that county...."Defendants asserted that while Elder was in fact a member of the Bay County Board of Commissioners, Region VII is neither an "officer, board, committee, or other authority" of Bay County.Rather, Region VII is a private, nonprofit corporation of which Bay County, along with several other local governmental entities, is simply a member.³Defendants further argued that even if Region VII is a "public entity" as Hughes alleged in his complaint, Bay County's limited membership interest of less than 10 percent precludes any finding that Region VII is an "authority" of Bay County for purposes of MCL 46.30a.

Elder joined in the motion filed by Region VII and its directors, and also sought summary disposition under MCR 2.116(C)(8) on the ground that, while MCL 46.30a(2) permits a taxpayer to "maintain" a suit for recovery of compensation paid in violation of subsection 1 of the statute, under subsection 3 it is the local county prosecutor who must file the suit.Because Hughes had not alleged that he is the prosecutor for Bay County, Elder argued that Hughes had failed to state a claim under the statute.

Hughes responded that Region VII is in fact an authority of Bay County and its other member governments.In support of this argument, Hughes asserted that the only statutory authority permitting joint endeavors by local governmental bodies is the Urban Cooperation Act (UCA), MCL 124.501 et seq.Hughes noted, however, that the members had failed to comply with the act's requirement that any such "interlocal agreement" be in the form of a contract.⁴SeeMCL 124.505.

Following a hearing on defendants' motions at which the parties reiterated their respective arguments, the trial court issued an opinion and order granting summary disposition of Hughes's claims in favor of defendants.With regard to Hughes's claim under MCL 46.30a, the court ruled that the absence of any direct control of Region VII by Bay County rendered the statute inapplicable to the retention of Elder as legal counsel for Region VII.⁵This appeal followed.

II.Analysis

Hughes argues that the trial court erred in concluding that Region VII is not an entity to which MCL 46.30a applies.Thus, Hughes argues, summary disposition of his claim under that statute was improperly granted to defendants.We do not agree.

This Court reviews a trial court's decision on a motion for summary disposition de novo.Driver v. Hanley (After Remand),226 Mich.App. 558, 561-562, 575 N.W.2d 31(1997).Although defendants filed their motions for summary disposition pursuant to MCR 2.116(C)(8) and (10), the trial court did not state the subrule on which it relied to grant summary disposition in favor of defendants.However, where, as here, the trial court considered material outside the pleadings, this Court will construe, the motion as having been granted pursuant to MCR 2.116(C)(10).Driver, supra at 562, 575 N.W.2d 31."A motion for summary disposition may be' granted pursuant to MCR 2.116(C)(10) when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.The moving party is entitled to judgment as a matter of law if the claim suffers a deficiency that cannot be overcome,"Id.(citations omitted).

Because the cause of action at issue here is prescribed by statute, this Court's review must begin with the relevant statutory language.Our goal in undertaking such review is to ascertain and give effect to the intent of the Legislature as derived from the language of the statute.Solution Source, Inc. v. LPR Assoc. Ltd. Partnership,252 Mich.App. 368, 372-373, 652 N.W.2d 474(2002).Because the Legislature is presumed to have intended the meaning it plainly expressed, Rowland v. Washtenaw Co. Rd. Comm.,477 Mich. 197, 219, 731 N.W.2d 41(2007), "[t]he fair and natural import of the terms employed, in view of the subject matter of the law," governs, In re Wirsing,456 Mich. 467, 474573 N.W.2d 51(1998)(citation and internal quotation marks omitted).

In challenging the trial court's grant of summary disposition, Hughes does not dispute that violation of MCL 46.30a plainly requires that a member of a county board of commissioners receive an appointment from, or be employed by, "an officer, board, committee, or other authority of that county...."MCL 46.30a(1).In arguing on appeal that Elder's representation of Region VII falls within these parameters, Hughes principally relies on the fact that Region VII is fulfilling a public, not a private, function.⁶However, the question here is not, whether the work of Region VII is more aptly described as public or private.Rather, the question in this case is what offices or entities of a county are subject to the restrictions set forth in MCL 46.30a; in particular, whether Region VII is an entity subject to the statute.

In answering this question, we find controlling the plain and unambiguous language of the statute requiring that the appointment or employment of a member of a board of county commissioners be from or by an officer or entity "of that county...."MCL 46.30a(1).The word "that," as used in this context, specifically emphasizes...