Masters v. City of Highland Park

• Decision Date: 11 October 1977
• Docket Number: Docket No. 29872
• Citation: 261 N.W.2d 215,79 Mich.App. 77
• Parties: Bruno MASTERS, Plaintiff-Appellant, v. CITY OF HIGHLAND PARK, a Municipal Corporation, and the Civil Service Board of the City of Highland Park, and Highland Park General Hospital, Defendants-Appellees. 79 Mich.App. 77, 261 N.W.2d 215
• Court: Court of Appeal of Michigan — District of US

Page 215

261 N.W.2d 215

Bruno MASTERS, Plaintiff-Appellant, v. CITY OF HIGHLAND PARK, a Municipal Corporation, and the Civil Service Board of the City of Highland Park and Highland Park General Hospital Defendants-Appellees.

Docket No. 29872.

79 Mich.App. 77, 261 N.W.2d 215

Court of Appeals of Michigan.

Oct. 11, 1977.

Rehearing Denied Nov. 21, 1977.

Released for Publication Jan. 13, 1978.

[79 MICHAPP 79] Murdoch J. Hertzog, Detroit, for plaintiff-appellant.

Richard H. Dorman, Highland Park, for defendants-appellees.

Before BEASLEY, P. J., and V. J. BRENNAN and McDONALD, ^* JJ.

V. J. BRENNAN, Judge.

This case arose from the August 18, 1972 discharge from employment of plaintiff Bruno Masters after 22 years of service with defendant Highland Park General Hospital Maintenance Department. The reason for the discharge was alleged noncompliance with the City's residence requirements. The discharge was upheld by the Highland Park Civil Service Commission, and that decision was upheld by Wayne County Circuit Court Judge Thomas Roumell in a November 26, 1975 opinion. Judge Roumell also denied plaintiff's motion for a new trial or rehearing. Plaintiff appeals as of right. GCR 1963, 806.1.

[79 MICHAPP 80] Following his discharge, plaintiff sought a hearing before the Civil Service Board. He was granted a hearing September 11, 1972. Further testimony was taken November 20, 1972, at which time the Board voted to uphold plaintiff's discharge. Plaintiff was represented by counsel. Plaintiff then brought suit in circuit court seeking a review of the Board's decision.

Wayne County Circuit Court Judge George Martin subsequently ordered a rehearing of the earlier meetings so that proceedings could be recorded and the court would have an adequate basis for review.

The Board met April 9, 1973 for the rehearing. Over objections of plaintiff's counsel, the Board read the old notes into the record. Then the Board prepared to receive new evidence. Plaintiff's counsel requested an adjournment and left the meeting.

Plaintiff was then asked if he wished to continue without an attorney. He replied, "No", and left the hearing room. The Board, despite the absence of plaintiff and plaintiff's counsel, proceeded to consider new evidence not presented at the earlier hearings.

The additional evidence included the testimony of a private investigator, Dissette, who reported that his surveillance indicated plaintiff lived in Troy, Michigan, and not Highland Park. However, this surveillance took place in November and December, 1972, and January, 1973, after plaintiff had been discharged.

Carol Masters, former daughter-in-law of plaintiff, testified from excerpts of a child custody hearing in which plaintiff's son said that he often stayed with his parents at their home in Troy and occasionally stayed at a Highland Park apartment [79 MICHAPP 81] building owned by his father. She also referred to testimony of Patricia Makled, a resident of the apartment building owned by plaintiff in Highland Park, which indicated that Mrs. Makled did not know if plaintiff lived there.

The Board reaffirmed plaintiff's discharge, and the matter was then returned to circuit court, where a rehearing was denied. The case was argued before Judge Roumell, who affirmed the decision of the Civil Service Board and dismissed plaintiff's complaint.

On appeal, plaintiff brings several allegations of error. We need address only one of them.

Plaintiff contends that the decision of the defendant Civil Service Board was not supported by competent, material and substantial evidence.

Plaintiff was discharged for violating Highland Park residency requirements. The provision he was accused of violating states:

"Sec. 7-20 Residence of city employees. All employees of the city shall be and remain residents of the city or shall become residents of the city within 6 months following the completion of their probationary period. When suitable applicants cannot be obtained after reasonable and serious recruitment efforts of un-classified personnel in the city hospital, the residency rule may be waived. It shall be the duty and responsibility of the board of directors of the hospital to continuously strive to encourage un-classified non-residents to live within the corporate limits of the city. Residents shall always be accorded preference in city employment and advancement policies. Any elected or appointed official of the city who violates this section shall be subject to immediate dismissal and subject to any fine or imprisonment for charter violation as prescribed by law. When the status of the work on (of) an employee is at a place which is outside the territorial limits of the city and the nature of his work is such that he is required to and does live on city property at the place [79 MICHAPP 82] of his work, and when such fact is certified to the civil service board by the department or agency by which he is employed, the provisions of this section shall be waived as to such employee."

Three hearings were held on plaintiff's dismissal before the Highland Park Civil Service Board. Each time plaintiff's discharge was upheld. Plaintiff contends that the decision of the Civil Service Board was not supported by competent, material and substantial evidence on the whole record. We agree.

The Michigan Supreme Court noted the following scope of review for administrative decisions in Regents of the University of Michigan v. Employment Relations Commission, 389 Mich. 96, 101, 204 N.W.2d 218, 220 (1973):

"The proper scope of review of an opinion of an administrative agency is controlled both by constitution and statutory provision. Article VI, § 28 of the 1963 Constitution provides:

" 'All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.' "

What the Supreme Court means by "competent, material and substantial evidence on the whole record" was determined in Michigan Employment Relations Commission v. Detroit Symphony Orchestra, Inc., 393 Mich. 116, 124, 223 N.W.2d 283, 287 (1974):

[79 MICHAPP 83] "The cross-fire of debate at the Constitutional Convention imports meaning to the 'substantial evidence' standard in Michigan jurisprudence. What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record that is, both sides of the record not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency."

The provision of the Highland Park city charter which the plaintiff was accused of violating dictates that all employees of the city shall be and remain residents of the city. However, nothing appears definitively in the record to indicate the meaning of "residence" within the contemplation of the charter provision.

This situation is in contrast to Detroit Ordinance 327-G, § 1; § 2-1-1.2, part of the Detroit employees' residency provision, which states:

"Residence shall be construed to be the actual domicile of the individual where he normally eats and sleeps and maintains his normal personal and household effects." (Emphasis added).

Thus, Detroit has by statute made the terms "residence" and "domicile" synonymous. What meaning was intended by the Highland Park city charter is difficult to determine, though when asked what constituted residency, the Board's secretary stated that one court had "determined that it is where a person lives with his family".

We recognize that proceedings before the Civil Service Board are adversary in nature, with the employer cast in the role of plaintiff seeking the [79 MICHAPP 84] discharge of defendant-employee. Therefore, plaintiff-employer initially carries the burden of proof to establish a prima facie case of violation by defendant-employee. As defined by the Supreme Court, the violation must be established by competent, material and substantial evidence.

Vagueness of the Highland Park charter provision leaves us uncertain as to exactly what the city was required to prove in the present case. Much depends upon the definition given to "residence".

The residency standard suggested by the Board's secretary in the instant case was rejected in Grable v. Detroit, 48 Mich.App. 368, 372-373, 210 N.W.2d 379, 382 (1973). In that case, the circuit court had held that a fire fighter is not effectively a resident of the city when his family lives elsewhere. This Court reversed, stating:

"Although we agree that the...