Shimkus v. Hickner
| Decision Date | 28 February 2006 |
| Docket Number | No. 04-10075-BC.,04-10075-BC. |
| Citation | 417 F.Supp.2d 884 |
| Parties | Robert SHIMKUS, Jan Marzejon, Tim Lynch, Katherine Heinzman, Constance Johnson, Gary Pelletier, Margaret Leavitt, Gene Callow, Maureen Beeckman, Bonnie Dinan, Mable Guoan, Lola Pelletier, Marion Wenk, Bill Wenk, Ernie Strohmaier, Lottie Veradi, Fay Stillwell, Peggy Lasecki, John May, Barb May, and Madeline Shann, Plaintiffs, v. Thomas HICKNER, individually and in his capacity as Bay County Executive, Bay County, a Michigan municipal corporation, Michael L. Lutz, individually and in his capacity as Bay County Housing Commissioner, Dennis R. Poirier, individually and in his capacity as a Bay County Housing Commissioner, Richard L. Bryne, individually and in his capacity as a Bay County Housing Commissioner, and Eugene F. Gwizdala, individually and in his capacity as a Bay County Housing Commissioner, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Kim A. Higgs, Bay City, MI, for Plaintiffs.
Laura S. Amtsbuechler, Farmington Hills, MI, Matthew A. Brauer, Rutledge, Manion, Detroit, MI, for Defendants.
Before the Court are six motions for summary judgment by various parties on both sides of this lawsuit, which was filed in response to defendant Bay County's action to dissolve its questionably constituted housing commission and terminate its then-director, plaintiff Robert Shimkus. The plaintiffs believe that Bay County officials were operating the housing commission contrary to State law because some commission members also held elected positions in county government, and commissioners were paid more than actual expenses for attending meetings. After some of the plaintiffs notified federal government officials of the irregularities, the County dissolved the commission. Shimkus and the other plaintiffs, who are tenants of the County's sole public housing project, claim that Bay County's dissolution of the housing commission violates state and federal law because a local unit of government may operate a public housing project only through such a commission, with membership comprised according to federal regulations to include at least one tenant member. As a consequence, the plaintiffs claim, the County's actions, including the termination of Shimkus, were void.
The plaintiffs have filed a second amended complaint containing six counts. Count I pleads a violation of the Michigan Whistleblower Protection Act and prays for damages to Shimkus; Count II seeks a declaratory judgment that the County must administer its public housing project in accordance with federal law, and the termination of Shimkus is void; Count III requests mandamus to compel the recomposition of a housing commission in a manner prescribed by federal law; Count IV is based on 42 U.S.C. § 1983 and prays for declaratory and injunctive relief and damages for Shimkus for violating his rights created by 42 U.S.C. § 1437, the Fourteenth Amendment, and the First Amendment; Count V requests a mandamus order compelling the Bay County Board of Commissioners to initiate action to recover compensation illegally paid to former housing commission members; and Count VI alleges violations of the standards of public officials and seeks reinstatement and back pay for Shimkus. On September 10, 2004, the plaintiffs filed a motion for summary judgment arguing that they are entitled to the declaratory and mandamus relief requested in Counts II and III of their second amended complaint as a matter of law. Defendants Bay County and Hinkner (the county executive) responded on October 1, 2004 and moved for summary judgment in their favor on Counts, II, III, IV, and V arguing that the plaintiffs lacked standing to bring those claims and these defendants were entitled to judgment on the merits as a matter of law. These defendants filed a separate motion for partial summary judgment on October 22, 2004 repeating these arguments. Then on January 10, 2005, defendants Bay County and Hinkner filed another motion for summary judgment, this time arguing that Shimkus's whistleblower claim (Count I) should be dismissed because these defendants were not his employer and the plaintiff failed to produce evidence on all the elements of his claim. They also attacked the plaintiffs' section 1983 claim (Count IV). On that same day, plaintiff Shimkus filed another motion for summary judgment arguing that he was entitled to judgment as a matter of law on Counts V and VI of the complaint and asking for an order of mandamus compelling recovery of expenses wrongfully paid to "commission" members, voiding his termination, and awarding him back pay. Finally, on January 10, 2005 defendants Lutz, Poirier, Bryne, and Gwizdala, the members of the county commission who also served on the "housing commission," filed their own motion for summary judgment seeking dismissal of Counts I, IV, and VI, the only counts of the second amended complaint directed at them.
The Court heard oral argument on the motions on April 14, 2005. The Court now finds that there is no legal requirement that the County operate its public housing project through a housing commission, the "housing commission" operating as such between 1998 and 2003 was never legally created and the plaintiff effectively was employed by the County, fact issues preclude dismissal of plaintiff Shimkus's whistleblower and section 1983 claims based on constitutional violations, no personal rights enforceable by the plaintiffs are created by 42 U.S.C. § 1437, the plaintiffs lack standing to contest the county government's expenditure of funds to reimburse the purported housing commission members, and the defendants' action of "dissolving" the "housing commission," although a nullity because the commission did not exist in 2003 as a legal entity, does not "void" the termination of Shimkus or give rise to mandamus or injunctive relief. Therefore, the Court will deny the plaintiffs' motions for summary judgment, grant in part and deny in part the defendants' motions for summary judgment, and dismiss Counts II, III, V, VI and part of Count IV of the second amended complaint.
In the United States Housing Act of 1937, Congress established a general program of housing assistance designed "to assist States and political subdivisions of States to remedy the unsafe housing conditions and the acute shortage of decent and safe dwellings for low-income families" and "to assist States and political subdivisions of States to address the shortage of housing affordable to low-income families." 42 U.S.C. § 1437(a)(1)(A) & (B). Under that program, federal funds are made available to provide project-based and individual-based assistance to make affordable housing available to low-income individuals and families. See 42 U.S.C. § 1437f. Funds generally are made available through public housing agencies, which operate at the State and local levels. See 42 U.S.C. § 1437a(b)(6).
In 1976, Bay County formed an independent housing commission to operate a public housing project known as Center Ridge Arms. Federal funds were provided for the project, subjecting the local government authority to federal statutes and regulations that govern the distribution and use of those funds. The commission later was dissolved, and the county entity that operates that facility underwent several transformations between 1979 and 2003 because of the change in Bay County's form of government and the confused responses by the county board of commissioners that followed that change.
The question of how the entity known in 2003 as the Bay County Housing Commission came into existence remains a mystery on this record. There is no doubt that a housing commission was formed in 1976, but all parties agree that the entity was dissolved when Bay County changed its form of government in 1979, and the duties of the commission were assumed by a newly-created housing department, which itself was later dissolved. Somehow, although it is not altogether clear how, Bay County began managing its existing public housing through another housing commission between 1998 and 2003, but there is no record of formal action by county government to establish such a public corporation. Nonetheless, the "housing commission" adopted bylaws on August 26, 1999. Plaintiff Robert Shimkus was hired as the housing director on September 27, 1997.
The initial resolution establishing a housing commission was adopted by the Bay County Board of Commissioners on October 26, 1976. However, in November 1978, the Board of Commissioners adopted the Optional Unified Form of County Government (OUFCG) pursuant to Public Act 139 of 1973, Mich. Comp. Laws § 45.551 et seq. According to Michigan law, when a county opts for the OUFCG, certain boards, commissions, and authorities theretofore in existence, with specifically designated exceptions, are abolished by operation of law. Mich. Comp. Laws § 45.554. The specific exceptions are
the apportionment commission, airport zoning board of appeals, board of county canvassers, board of determination for a drainage district, civil service commission, county drainage board, county department of veterans' affairs administrative committee or soldiers' relief commission, concealed weapons licensing board, election commission, jury commission, library commission, parks and recreation commission, social services board, tax allocation board, a board established to oversee retirement programs, a plat board, a mental health board, a hospital board, an intercounty drainage board, and a building authority established by the...
To continue reading
Request your trial
-
Alliance for Children v. City of Detroit Schools
...touching upon matters of public concern." Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1052 (6th Cir.2002). Shimkus v. Hickner, 417 F.Supp.2d 884, 913 (E.D.Mich.2006). Of course, this task is best undertaken after a full development of the facts, something that has not occurred at the......
-
O'Brien v. City of Saginaw
...would be only for good cause." Gregory, 24 F.3d at 785 (citing Chilingirian, 882 F.2d at 203); see also Shimkus v. Hickner, 417 F. Supp. 2d 884, 910-11 (E.D. Mich. 2006) (quoting Gregory, 24 F.3d at 785, and noting the rule "is well established"). The fact that the contract is for a definit......
-
Solano-Reed v. Leona Grp., LLC
...protected activity, "the plaintiff reasonably must believe a violation of law, regulation, or rule has occurred." Shimkus v. Hickner, 417 F. Supp. 2d 884, 907 (E.D. Mich. 2006). Although an employee who is "about to" report is afforded the same amount of protection as one who has already re......