Oliver v. Department of State Police, Docket No. 71089

• Decision Date: 05 March 1984
• Docket Number: Docket No. 71089
• Citation: 349 N.W.2d 211,132 Mich.App. 558
• Parties: Ernest OLIVER, Petitioner-Appellee, v. The DEPARTMENT OF STATE POLICE, the Michigan Department of Civil Service, and the Michigan Civil Service Commission, Respondents-Appellants. 132 Mich.App. 558, 349 N.W.2d 211
• Court: Court of Appeal of Michigan — District of US

Page 211

349 N.W.2d 211

Ernest OLIVER, Petitioner-Appellee, v. The DEPARTMENT OF STATE POLICE, the Michigan Department of

Civil Service, and the Michigan Civil Service

Commission, Respondents-Appellants.

Docket No. 71089.

132 Mich.App. 558, 349 N.W.2d 211

Court of Appeals of Michigan.

Submitted Nov. 16, 1983.

Decided March 5, 1984.

Released for Publication March 5, 1984.

[132 MICHAPP 560] Mark T. Light, Lansing, for petitioner-appellee.

Frank J. Kelley, Atty. Gen., Louis J. [132 MICHAPP 561] Caruso, Sol. Gen., and Brenda E. Turner, Asst. Atty. Gen., for respondents-appellants.

Before V.J. BRENNAN, P.J., and KELLY and G.R. COOK ^*, JJ.

KELLY, Judge.

To what extent may a government employee publicly criticize his superiors and fellow employees without risking discharge? Petitioner was fired by the State Police, qualifiedly reinstated by the Department of Civil Service, with the qualification stricken on appeal by the Ingham County Circuit Court. We affirm the reinstatement but reverse as to interest.

FACTS

Petitioner was hired by respondent Department of State Police in 1972 as a laboratory scientist in the State Police Crime Laboratory. After several years he was transferred, at his request, from the Warren branch to the East Lansing branch of the laboratory, where his wife, also a laboratory scientist, was employed. From 1974 to 1977 petitioner and his wife were continuously harassed by their fellow employees; the harassment took the form of sexual innuendoes, racial and ethnic slurs, writing of derogatory graffiti on bulletin boards, the deliberate, repeated smoking of noxious cigars near the petitioner's work station, and other forms of malicious, childish abuse, such as spreading sugar on petitioner's work desk.

In 1976 petitioner discovered that a secretary in the evidence laboratory had a key to one of the evidence storage rooms, a serious breach of departmental policy regarding evidence security. Petitioner immediately reported the matter to his [132 MICHAPP 562] superiors, who questioned the secretary, found she had never made any use of the key, and reclaimed the key from her possession. An internal memorandum, part of the lower court file, establishes that there were 34 keys to this room, of which 19 were issued, 12 were in storage after having been returned by prior employees, and 3 were unaccounted for, of which the secretary's key was apparently one. However, no further action was taken to correct the breach of security.

Petitioner was apparently disturbed by this incident since he and his fellow technicians had repeatedly testified in criminal proceedings involving drug prosecutions that only authorized personnel had access to the evidence storage rooms. Petitioner then began to note additional improper laboratory procedures and practices, including the fact that fellow technicians left evidence unguarded on their desks overnight rather than locking it in storage. Petitioner compiled a photographic record of each incident which he presented first to the director of the Department of State Police, receiving no response for over two months, then to the Attorney General, and finally to the Governor's legal counsel. At each step he was met with stony indifference.

Petitioner blew the whistle. He went to the Lansing State Journal and decried what he viewed as malfeasance in office by the director of the Department of State Police and other responsible officials. The Journal published at least three articles, a departmental investigation was in turn referred to the Attorney General, and ultimately the director of the department commissioned a deputy director's inquiry, which resulted in corrective action. The inquiry found the existence of poor security procedures and as a result the laboratory was rekeyed.

[132 MICHAPP 563] In the interim, petitioner was charged with several violations of civil service and departmental rules, including insubordination and "conduct unbecoming a state employee". The gravamen was the making of irresponsible charges of misconduct by state police officials to the newspapers. On November 18, 1977, a hearing panel released its findings and recommended dismissal for insubordination and "unbecoming conduct" in making irresponsible public charges. During the course of the hearing the parties stipulated that the caliber of petitioner's work was never in question and in fact had been uniformly high. Petitioner was dismissed on or about November 30, 1977, and pursued his administrative appellate remedies.

Following hearings and the submission of briefs, a grievance decision was issued on September 12, 1978. The hearing officer found that Oliver was disloyal to his employer but reduced the discipline from dismissal to suspension without pay conditioned upon public retraction of the claims. After appeal to the Michigan Civil Service Commission, the matter was remanded to the hearing officer and he issued an amended decision dated September 11, 1979, wherein he incorporated the exact terms of the public retraction as articulated in the September 12, 1978, grievance decision:

"As an essential condition of any reinstatement to his former position as a Laboratory Scientist, Grievant shall be required to retract publicly those statements that he made regarding the 'malfeasance' and 'gross negligence' of the former or present Director of the Michigan State Police and other Department officials."

Petitioner declined to make the public retraction and instead filed an appeal and petition for review [132 MICHAPP 564] in the Ingham County Circuit Court pursuant to M.C.L. Sec. 24.302; M.S.A. Sec. 3.560(202).

On July 1, 1982, the circuit court issued an opinion from the bench regarding several motions. In pertinent part, the court ruled (we paraphrase):

a) That the statements made by Oliver involved matters of general and great public concern and were entitled to constitutional protection.

b) That there was no competent, material and substantial evidence to support the conclusion that Oliver made false statements knowingly or with reckless disregard as to whether they were true or not.

c) That Oliver had no legal obligation to make a retraction and could not be required--as a condition of continuing employment--to waive his First Amendment rights.

d) That he was to be reinstated with back pay.

On August 18, 1982, an order reflecting the opinion was entered.

There followed an abortive attempt to perfect an appeal here.

On September 8, 1982--21 days after entry of the August 18, 1982, order--respondents filed a claim of appeal. On October 7, 1982, respondents filed an application for delayed appeal. On November 3, 1982, this Court granted respondents' motion for a stay pending determination of the application for leave to appeal. On February 23, 1983, this Court denied the application for delayed appeal for lack of merit, and the stay of judgment was vacated.

Petitioner, not having been reinstated, moved the circuit court for a writ of mandamus. Meanwhile, respondents filed--on March 15, 1983--an application for leave to appeal to the Supreme [132 MICHAPP 565] Court and requested a stay of the pending order until disposition. On March 23, 1983, Circuit Court Judge Giddings entered an order for writ of mandamus. However, on April 8, 1983, --- Mich. ---, 348 N.W.2d 256, the Supreme Court ordered that the reinstatement be stayed. On April 26, 1983, the Supreme Court, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, remanded the case to this Court as on leave granted. Oliver v. Dep't of State Police, 417 Mich. 971, 348 N.W.2d 256 (1983). On May 10, 1983, this Court granted respondents' motion for a stay.

I

Did the circuit court commit error in the scope of its review of the Civil Service Commission's decision either by invading the fact-finding process of discretionary action or by misapplying First Amendment protections to petitioner?

The Ingham County Circuit Court rendered a comprehensive 56-page opinion preliminary to its order that petitioner be reinstated with full back pay and no loss of seniority. We have reviewed the lengthy record of administrative proceedings below with particular attention to the dispositive summary of the facts section of the grievance decision, the circuit court record, and the briefs on appeal and we find no error. Rather than undertake unnecessarily detailed review of those findings, we believe it sufficient to say that not only did the circuit court correctly conclude that there was no evidence to support certain crucial findings of the Civil Service Commission hearing officer, but the undisputed factual evidence is that petitioner's allegations to the newspaper were substantially true. There is no claim that the information petitioner disclosed to the newspaper was protected by some requirement of confidentiality and in the [132 MICHAPP 566] circumstances of this case any such imprimatur of confidentiality would be void as against public policy. We summarily reject the respondents' contention that petitioner's statements to the newspaper do not regard topics of public debate or concern. Furthermore, we find that the Ingham County Circuit Court came to the same conclusions of fact as did the Civil Service Commission. The only difference between the decision of the commission and that of the court was on an issue of law regarding the applicability of the facts to the so-called disloyalty test on which the hearing officer incorrectly based his recommendations.

Neither the parties nor Judge Giddings take, or took, issue with the factual summary presented by the hearing officer. The hearing officer found that petitioner was wrong in making statements to newspapers and that:

"The statement reflected disloyalty to the Department. 'Disloyalty to one's employer is one of the most serious charges, if not the most serious, that can be leveled against an employee. If the employee is proven guilty of such charge, few, if any,...