Michigan State Employees Ass'n v. Michigan Civil Service Com'n

• Decision Date: 30 August 1983
• Docket Number: Docket No. 64861
• Citation: 126 Mich.App. 797,338 N.W.2d 220
• Parties: MICHIGAN STATE EMPLOYEES ASSOCIATION, a non-profit Michigan corporation and Charleston Gregory, Jr., Petitioners-Appellants, v. MICHIGAN CIVIL SERVICE COMMISSION, a constitutionally-created agency of the State of Michigan, Respondent-Appellee. 126 Mich.App. 797, 338 N.W.2d 220
• Court: Court of Appeal of Michigan — District of US

Page 220

338 N.W.2d 220

MICHIGAN STATE EMPLOYEES ASSOCIATION, a non-profit Michigan corporation and Charleston Gregory, Jr. Petitioners-Appellants, v. MICHIGAN CIVIL SERVICE COMMISSION, a constitutionally-created agency of the State of Michigan, Respondent-Appellee.

Docket No. 64861.

126 Mich.App. 797, 338 N.W.2d 220

Court of Appeals of Michigan.

Submitted April 11, 1983.

Decided July 6, 1983.

Released for Publication Aug. 18, 1983.

Rehearing Denied Aug. 30, 1983.

[126 MICHAPP 798] Fraser, Trebilcock, Davis & Foster, P.C. by Michael E. Cavanaugh, Lansing, for petitioners-appellants.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Janice Meija and Christopher D. Dobyns, Asst. Attys. Gen., Lansing, for respondent-appellee.

Before DANHOF, C.J., and ALLEN and WALSH, JJ.

DANHOF, Chief Judge.

Petitioners appeal by right from an Ingham County Circuit Court order affirming the decision of the Civil Service Commission (Commission) that petitioner Charleston Gregory, Jr., was properly dismissed for cause by the Department of Social Services (Department).

Gregory was employed as an intake worker with the Department from February 11, 1975, until his discharge on November 1, 1979. The events leading to his discharge began on April 23, 1979, when a claim for emergency assistance was requested by Margaret Rhoades. Rhoades testified that she informed[126 MICHAPP 799] Gregory that her utility service had been discontinued and requested funds to enable her to have the service resumed. Gregory advised her that she was entitled to some assistance but that she would be required to make a co-payment of $200. Rhodes returned on the following day with a personal check for $200. However, Gregory refused to accept the check. Therefore, the next day she cashed the check and handed Gregory $200 cash in an envelope. On April 27, 1983, the emergency aid was authorized.

When Rhoades attempted to have her utility service resumed she was informed that she needed approximately $100 more aid than she had been given. Therefore, she again visited Gregory's office where she was informed that an additional co-payment of $48 would be required. When she informed Gregory that she did not have the money, he told her that he would loan it to her. Gregory visited her home the following day at which time she repaid him in cash.

In August, 1979, Rhoades sought additional emergency assistance before a different intake worker. She was informed by the intake worker that additional assistance was unavailable because Rhoades had failed to maintain her utility payments after receiving emergency assistance in April. When she told the intake worker that she had been unable to meet those payments because of the co-payment she had been required to make in connection with the April assistance, the worker informed her that the records indicated that Rhoades had received the full amount of the requested assistance in April and that all co-payments had been waived. It was at that point that Rhoades explained the circumstances surrounding the April claim to the intake worker who in turn [126 MICHAPP 800] confronted Gregory with the allegations. Gregory denied having received any money from Rhoades.

Rhoades testified that later that same day she was approached by Gregory who told her not to pursue the matter any further. Her testimony was corroborated by the testimony of David Reeve who was employed as a legal intern at a legal aid office located in the same building as Gregory's. He testified that Rhoades was in his office when a man knocked on the door and asked to speak with her in the hallway. Although Reeve was unable to identify the man he had seen Rhoades leave with, he testified that when Rhoades returned to his office after talking with the man, she told him that the man was Gregory and informed him of the nature of Gregory's demand.

Rhoades' testimony was also corroborated by the testimony of an acquaintance who testified that Rhoades told her two days after she received the April assistance that she had been required to make a co-payment.

Over Gregory's relevancy objection, the Department was permitted to introduce the testimony of another departmental employee who testified that a similar complaint against Gregory had been made by another client of the Department on a previous occasion.

Also over petitioner's objection, the Department was permitted to introduce evidence that Rhoades had taken and passed a polygraph examination.

Gregory testified on his own behalf and denied all of the allegations. In an effort to impeach Rhoades's credibility, he testified that Rhoades had lied about her resources when applying for monetary assistance on various occasions. He also claimed that she was untruthful in her representations[126 MICHAPP 801] concerning the number of people who resided with her.

The hearing officer acknowledged that the case turned solely on the issue of credibility. She resolved the issue in favor of Rhoades because: (1) the testimony of Reeve which tended to corroborate Rhoades's story that she was approached by Gregory in an effort to dissuade her from pursuing the complaint; (2) Rhoades had little reason to lie; (3) it took five days to process Rhoades's April emergency assistance request when normally such requests are handled in a single day; (4) a similar complaint had been made against Gregory on a previous occasion; and (5) the complex nature of the circumstances described by Rhoades (i.e., the hearing officer found it difficult to believe that Rhoades could fabricate such a story).

The Commission adopted the hearing officer's determination. The circuit court affirmed the Commission's decision.

Petitioners initially claim that due process was violated because the hearing officer used the "preponderance of the evidence" standard of proof to determine whether Gregory had engaged in the complained-of conduct. They claim that the misconduct Gregory was alleged to have been engaged in constituted criminal conduct and that the more stringent "beyond a reasonable doubt" standard of proof applicable in criminal cases should have been employed.

We agree with petitioners that the protections required by due process are greater where a person's good name, reputation, honor, or integrity are at stake. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). However, we do not agree that due process requires that the standard of proof utilized [126 MICHAPP 802] at a discharge hearing be greater than the "preponderance of the evidence" standard.

Although we have found no Michigan case dealing with this issue, a similar issue was raised in Alsbury v. United States Postal Service, 530 F.2d 852 (CA9, 1976). In Alsbury, supra, the appellant, a postal employee, was discharged for unlawfully removing postal property from the post office at which he was employed. He had previously been acquitted on criminal charges arising out of the same alleged misconduct. In rejecting the claim that his acquittal on the criminal charges precluded his discharge, the Court stated the following:

"In the criminal trial the Government must prove its case beyond a reasonable doubt, while in a discharge proceeding proof based on a preponderance of the evidence is sufficient. These distinctions have been recognized by other courts when confronted by a contention such as the appellant makes. See Kowal v. United States, 412 F.2d 867, 870, 188 Ct.Cl. 631 (1969); Finfer v. Caplin, 344 F.2d 38, 41 (CA2), cert den. 382 U.S. 883, 86 S.Ct. 177, 15 L.Ed.2d 124 (1965). Acquittal thus does not make the dismissal arbitrary. To hold otherwise would impose a barrier to Postal Service improvement which properly should function only to prevent a deprivation of liberty." 530 F.2d 855. (Emphasis supplied.)

The rule stated in Alsbury, supra, is consistent with the general...