Schultz v. Oakland County

• Decision Date: 22 January 1991
• Docket Number: 113057,Docket Nos. 113030
• Parties: Arthur D. SCHULTZ, Jr., Claimant-Appellant, v. OAKLAND COUNTY and Michigan Employment Security Commission, Respondent-Appellees. Arthur D. SCHULTZ, Jr., Plaintiff-Appellant, v. John NICHOLS, James Curtis, and the Oakland County Board of Commissioners, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 374

466 N.W.2d 374

187 Mich.App. 96

Arthur D. SCHULTZ, Jr., Claimant-Appellant, v. OAKLAND COUNTY and Michigan Employment Security Commission,

Respondent-Appellees.

Arthur D. SCHULTZ, Jr., Plaintiff-Appellant, v. John NICHOLS, James Curtis, and the Oakland County Board of

Commissioners, Defendants-Appellees.

Docket Nos. 113030, 113057.

Court of Appeals of Michigan.

Submitted Oct. 8, 1990, at Detroit.

Decided Jan. 22, 1991, at 9:20 a.m.

Released for Publication March 25, 1991.

Michael L. Odette, Davisburg, for claimant-appellant.

Vandeveer Garzie by John J. Lynch and David B. Timmis, Birmingham, for Oakland County.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., and Martin J. Vittands, Asst. Atty. Gen., for Michigan Employment Sec. Com'n.

Before SHEPHERD, P.J., and GRIBBS and JANSEN, JJ.

SHEPHERD, Presiding Judge.

In these actions consolidated for purposes of appeal, plaintiff appeals by leave granted an October 11, 1988, opinion and October 27, 1988, order of the Oakland Circuit Court, affirming a Michigan Employment Security Commission Board of Review decision denying plaintiff unemployment benefits, and as of right from a November 3, 1988, order granting summary disposition for defendants Nichols, Curtis, and Oakland County Board of Commissioners in plaintiff's wrongful discharge action. We affirm for the primary reason that we hold that a deputy sheriff, just as any other police officer, is a public employee rather than a public official or a holder of public office whose resignation is effective as soon as it is submitted.

Plaintiff was an Oakland County deputy sheriff who had been placed on medical leave through December 8, 1986, because of stress. On November 24, 1986, plaintiff submitted a letter of resignation to the sheriff's department, stating that he had decided to change his career and redirect his goals. Plaintiff claims that he attempted to withdraw his letter two days later, but was told he could not do so. In April 1987, plaintiff applied for, but was later denied, unemployment benefits.

The MESC hearing referee found that plaintiff left work voluntarily without good cause attributable to his employer and denied benefits pursuant to M.C.L. Sec. 421.29(1)(a); M.S.A. Sec. 17.531(1)(a). While plaintiff argued before the MESC that his resignation was not voluntary because he was laboring under the deleterious effects of medication and stress when he submitted his resignation, the issue before the trial court became whether plaintiff's termination was involuntary because he had been denied the opportunity to withdraw his resignation. In affirming the MESC Board of Review, the circuit court found that plaintiff had no right to withdraw his resignation.

The focus was much the same in plaintiff's wrongful discharge action, which essentially was premised on the theory that, by refusing to allow plaintiff to withdraw his resignation, defendants constructively discharged plaintiff. The basis of the grant of summary disposition for the defendants in that case is not entirely clear. Defendants' motion for summary disposition was brought pursuant to MCR 2.116(C)(8), on the ground that because plaintiff had no right to withdraw his resignation he failed to state a cause of action. In ruling on the motion, the trial court, after apparently having considered documentary evidence outside the pleadings, not only agreed with defendants' contention, but further found that plaintiff had no claim under Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980), because plaintiff's collective bargaining agreement did not provide that termination only would be for just cause and there were no facts to support a claim that plaintiff ever was promised a right to withdraw his resignation. Finally, the order granting defendants' motion states that the court did so pursuant to both MCR 2.116(C)(8) and (10).

Plaintiff first contends that because he was a "public official" as opposed to a "public employee," he was entitled to withdraw his resignation before its acceptance was manifested in the public record or by the filling of the position. We find, however, that plaintiff was merely a public employee whose resignation was effective on the date it was submitted.

Although the question whether a deputy sheriff is a public official or a public employee appears to be one of first impression, the cases do guide us in making this determination. For example, in Solomon v. Highland Park Civil Service Comm., 64 Mich.App. 433, 437-438, 236 N.W.2d 94 (1975), this Court held that a city police officer was not a "public officer." In doing so, we stated:

A public officer in the general everyday acceptance of the term is a special classification of those involved in government at what may be described as in an executive classification, whether his elevation to that status is elective or appointive. His compensation is fixed by legislative action, state or local. He does not collectively bargain for his wages or working conditions, and in no case that we know of are his duties and the standard of performance therefor agreed on by labor contracts. We think this is what Chief Justice Cooley meant by what he said in 1879:

"An office is a special trust or charge created by competent authority. If not merely honorary, certain duties will be connected with it, the performance of which will be the consideration for its being conferred upon a particular individual, who for the time will be the officer. The officer is distinguished from the employee in the greater importance, dignity and independence of his position; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or non-feasance in office, and usually, though not necessarily, in the tenure of his position." Throop v. Langdon, 40 Mich. 673, 682-683 (1879).

We recognize authority to the contrary but we opt to follow what we think was the thrust of his definition. If appellee as a policeman is a "public officer" of Highland Park, then every state policeman is a "public officer" of the State of Michigan. We reject that contention.

Again, in Burnett v. Moore, 111 Mich.App. 646, 648-649, 314 N.W.2d 458 (1981), this Court found that a state trooper was not a public official, deeming it significant that, while a state police officer has some discretion in the performance of the job, the officer has to answer to authorities such as the director of the state police and other officials in the chain of command, in addition to the law itself. Finally, our Supreme Court has held that the determination of whether a particular individual is a public officer or a public employee should be made with an eye toward the legislative intent in framing the particular statute by which the position was created. People v Freedland, 308 Mich. 449, 457, 14 N.W.2d 62 (1944).

Here, we do not believe the statute by which plaintiff's position was created, MCL 51.70; M.S.A. Sec. 5.863, evinces any legislative intent to imbue the position of deputy sheriff with the status of a "public...