Lenz v. Cobo
| Decision Date | 29 December 1953 |
| Docket Number | No. 232,232 |
| Citation | 61 N.W.2d 587,338 Mich. 383 |
| Parties | LENZ v. COBO, Mayor. * Motion |
| Court | Michigan Supreme Court |
Paul T. Dwyer, Corp. Counsel, Helen W. Miller, G. Edwin Slater, Lawrence E. Eaton, Asst. Corp. Counsel, Detroit, for appellant.
Craig Thompson, Detroit, for appellee.
Before the Entire Bench.
The action in this case involves a review by mandamus of the legality of the discharge of plaintiff, John N. Lenz, by defendant, Albert E. Cobo, mayor of the city of Detroit. Prior to November 11, 1949, plaintiff was an employee of the city of Detroit connected with the office of city clerk. Among plaintiff's duties was assistance to members of the common council in handling minor matters for them as well as relieving superiors of ordinary office details.
On November 14, 1949, plaintiff received the following notice:
'City of Detroit
Department of City Clerk
'November 14, 1949
'Notice of Discharge
'To John Lenz:
'You are hereby notified that you are discharged from your position of legislative clerk which you now hold in this department, effective Onvember 11, 1949, for the following reasons: Insubordination, conduct unbecoming a city employee, threatened intimidation of employer, misuse of Council Office, and fraudulent use of Council stationery.
'Department of City Clerk
'By /s/ Ernest Jones
'Deputy City Clerk'
On December 14, 1949, plaintiff sent a letter to the them mayor of the city of Detroit requesting a hearing under the Veterans' Preference Act, C.L.1948, § 35.402 et seq., Stat.Ann. § 4.1222 et seq. The letter reads as follows:
'Detroit 26, Michigan.
'Dear Mayor:
'I would greatly appreciate an early hearing before the holidays, under the Veterans' Preference Act, which would require Mr. Jones or Mr. Leadbetter to prove that I as Legislative Clerk have been guilty of:
Official misconduct.
Habitual, serious or wilful neglect
in the performance of duty.
Extortion.
Conviction of intoxication.
Conviction of felony.
Incompetency.
'Which they cannot do.
'As you know by a recent Supreme Court decision the Civil Service Commission cannot go into the facts, nor weigh them, nor pass upon their flimsiness (See [Martin v. Civil Service Commission] 313 Mich. 639 ), as you will be able to do.
'Sincerely yours,
'/s/ John N. Lenz
'John N. Lenz'
The above letter was replied to as follows:
'Detroit 4, Mich.
'Re: Formal notice of hearing before the Mayor, Under the Veterans' Preference Act.
'Dear Sir:
'You are hereby notified that in accordance with the provisions of the Veterans' Preference Act, you will be granted a hearing on the matter of your discharge from the office of the City Clerk, in my office, 102 City Hall on Friday, January 27 at 10:15 A.M.
'At this time you will be expected to be present and may present such facts in your defense and may be represented by such counsel in your behalf as you may desire.
'The reasons charged for your dismissal are: Serious and wilful neglect in the performance of duty and incompetency.
'You are hereby further notified that as a condition precedent to this hearing, the City of Detroit will insist upon proof that you are an honorably discharged veteran within the meaning of the Veterans' Preference Act. Therefore, please bring with you for this purpose your honorable discharge.
On January 17, 1950, a detailed list of charges was mailed to plaintiff's counsel:
'City of Detroit
'Office of the Corporation Counsel
'January 17, 1950.
'Detroit 26, Michigan.
'Re: Formal Hearing of John N. Lenz Under Veterans' Preference Act.
'Dear Sir:
'In your letter of January 9, 1950, addressed to the Mayor, you request more detailed particulars of the charges of 'serious and wilful neglect in the performance of duty and incompetency' in advance of the hearing.
'Please be advised that in support of the above mentioned charges, the City Clerk will insist that Mr. Lenz was duly notified of his discharge on November 11, 1949, for reasons of 'Insubordination, conduct unbecoming a City employee, threatened intimidation of employer, misuse of Council office and fraudlent use of Council stationery,' which charges were upheld by the Civil Service Commission on December 12, 1949.
'The City Clerk will further insist that the said John N. Lenz is guilty of serious and wilful neglect in the performance of duty and incompetency as follows: In that
'1. The said John Lenz is an unsuitable unfit person to be retained in the service of the City, because of his inability to cooperate with his employer or his fellow employees.
'2. The said John Lenz is not amenable to discipline and has constantly resented the position which he has filled by waging a steady and unreasonable campaign to have his salary increased and to compel the City Clerk so to do by a requested survey by the Civil Service Commission, which was denied on or about July 18, 1949.
'3. The said John Lenz did approach several members of the Common Council to set up its own separate payroll where he would not be under the supervision of the City Clerk.
'4. The said John Lenz did accumulate a private file while in the employment of the City Clerk since the year 1941 for the avowed purpose of reflecting upon the honesty and integrity of his superior, which would bring the City into public suspicion, contempt and ridicule, and did threaten to publish the same with the intent of intimidating his superior.
'5. The services of the said John Lenz as Legislative Clerk were negligently performed and in some instances his conduct was positively unsatisfactory to members of the Common Council.
'6. The said John Lenz has fraudulently used Council stationery to transact his private business and has fraudulently represented himself as 'Secretary of the Detroit Common Council' and 'Secretary to the City Councilmen of Detroit.'
'7. That on or about August 16, 1949, the said John Lenz wrongfully took a letter out of the private file of Mr. Edgecomb and made a copy of the same and sent it to Mr. Willis Hall of the Detroit Board of Commerce.
'8. The said John Lenz has openly resented a resolution of the Common Council of November 15, 1949, J.C.C. pages 3438-39, substituting two positions of Senior Stenographer for the positions of Legislative Clerk, and did take this matter to the Police Department as a basis for charges of misconduct against the City Clerk.
'9. That the said John Lenz has sought publicly to criticize and humiliate the City Clerk, his superior officer, by unwarranted statements for publication by radio and newspapers, and by causing to be submitted to the Common Council a list of unwarranted statements for the purpose of casting distrust, suspicion, contempt and ridicule upon the City Clerk and contrary to the best interests of the City of Detroit.
'In regard to your request for reinstatement in advance of the hearing as already set, please be advised that no such proceeding is authorized by the Veterans' Preference Act. Any objections you have to the form of the charges may be raised at the hearing.
'Assistant Corporation
On January 27, 1950, the hearing was held before the mayor. Plaintiff was present at the hearing, was represented by counsel, and participated in the proceedings. On February 6, 1950, plaintiff received the following from the mayor:
'Detroit 26, Michigan.
'Dear Sir:
'After full and due consideration of all the facts submitted at the hearing granted you before me on January 27, 1950, in accordance with the provisions of the Veterans' Preference Act, you are hereby advised of my decision.
'I find as a matter of fact that you did, while an employee of the City Clerk, take militant action without regard to the recommendation of your employer, to change your classification and secure an increase in your salary. That you did, while so employed, collect facts in regard to the administration of the City Clerk's office, and did attempt to use such facts to embarrass and discredit your employer. That you did use official stationery of the Common Council and assume the title of 'Secretary of the Common Council' for your personal benefit and prestige.
'It is my decision that you are guilty as charged and it is, therefore, my order thay you be discharged as a City employee in accordance with the recommendations of the City Clerk and the Civil Service Commission.
'May I assure you that I reluctantly reached this decision but on the basis of the testimony offered, I could not do otherwise.
'It is always regrettable that a man has to leave to City service after such a long period and I sincerly hope that you may find a vocation in which you will be happy.
On February 5, 1951, plaintiff filed a petition in the circuit court of Wayne County, citing Albert E. Cobo as mayor of the city of Detroit as defendant, and asking for a writ of mandamus to reinstate plaintiff. The petition alleges that the hearing was illegal for the following reasons:
'
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...of record or other tribunal or officer exercising a judicial function for revision and correction in matters of law. Lenz v. Cobo, 338 Mich. 383, 61 N.W.2d 587, 592 (1953); Toulouse v. Board of Zoning Adjustment, 147 Me. 387, 87 A.2d 670, 673 (1952). Certiorari differs from a writ of error ......
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...(citing Wilson v. Department of Public Works, City and County of Los Angeles, 153 Ca.App.2d 152, 314 P.2d 84 (1957); Lenz v. Cobo, 338 Mich. 383, 61 N.W.2d 587 (1953); State ex rel. Cater v. N. Olmsted, 69 Ohio St.3d 315, 631 N.E.2d 1048 (1994)). Here, Clark has another remedy in his suit f......
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...where the law has established no specific remedy and where, in justice and good government, there should be one. Lenz v. Detroit Mayor, 338 Mich. 383, 395, 61 N.W.2d 587 (1953). 11. 146 Mich.App. 652, 381 N.W.2d 783 12. The majority disagrees that an order of mandamus is available, because ......
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