Shirvell v. Dep't of Attorney Gen.
| Decision Date | 08 January 2015 |
| Docket Number | 316146.,314227,Docket Nos. 314223 |
| Citation | 308 Mich.App. 702,866 N.W.2d 478 |
| Parties | SHIRVELL v. DEPARTMENT OF ATTORNEY GENERAL. |
| Court | Court of Appeal of Michigan — District of US |
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Jeanmarie Miller, Assistant Attorney General, for the Department of Attorney General.
Andrew L. Shirvell in propria persona.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and George G. Constance, Assistant Attorney General, for the Department of Licensing and Regulatory Affairs/Unemployment Insurance Agency.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Jason Hawkins, Assistant Attorney General, for the Civil Service Commission.
Before: MURRAY, P.J., and O'CONNELL and BORRELLO, JJ.
In these consolidated appeals, in Docket Nos. 314223 and 314227, the Department of Attorney General (the Department), and the Department of Licensing and Regulatory Affairs/Unemployment Insurance Agency (UIA), respectively, appeal by leave granted a circuit court order reversing the order of the Michigan Compensation Appellate Commission (MCAC) affirming the UIA's denial of claimant Andrew Shirvell's claim for unemployment benefits. In Docket No. 316146, Shirvell appeals by leave granted a circuit court order affirming a Civil Service Commission (the Commission) order denying Shirvell's grievance and holding that the Department had just cause to terminate Shirvell's employment under the Civil Service Rules (CSR) for conduct unbecoming a state employee. For the reasons set forth in this opinion, in Docket Nos. 314223 and 314227 we reverse the circuit court's order and remand for reinstatement of the MCAC's order and in Docket No. 316146 we affirm the circuit court's order.
These cases arise from Shirvell's highly publicized conduct directed at Chris Armstrong in the summer and autumn of 2010. At the time, Armstrong was the president of the University of Michigan (U–M) Student Assembly (MSA) and was the first openly gay individual to hold that position. Shirvell had been an assistant attorney general with the Department since 2007. It is undisputed that Shirvell received good performance evaluations during his tenure with the Department. However, on November 8, 2010, he was dismissed for conduct unbecoming a state employee.
The impetus behind the termination was Shirvell's actions surrounding his authoring of a public blog entitled the “Chris Armstrong Watch.” The blog contained various postings concerning Armstrong, his sexual orientation, and his “radical homosexual agenda.” For example, one blog entry characterized Armstrong as a “RADICAL HOMOSEXUAL ACTIVIST, RACIST, ELITIST, & LIAR,” and another entry contained a rainbow flag with a swastika posted next to a photograph of Armstrong's face with the word “resign” nearby. In one entry, Shirvell referred to Armstrong as a “privileged pervert.” Shirvell accused Armstrong of supporting a “radical homosexual agenda” that included support for rights such as “gay ‘marriage’ and adoption ‘rights' ” and a gender-neutral housing policy under which, according to Shirvell, “cross-dressing students will not have to share a dorm room with a member of the same sex” and that would “undoubtedly lead to a massive increase in rapes.”
In addition, Shirvell claimed that Armstrong was a “racist liar” because he joined a campus group called the “Order of Angell” and that Armstrong demonstrated Shirvell accused Armstrong of engaging in “underage binge-drinking” and using his “sexual preference to advance his ambitions,” claimed that Armstrong interned for United States Representative Nancy Pelosi “as a lowly handmaiden,” and referred to him as the “grand dragon” of the MSA.
In addition, Shirvell accused Armstrong of hosting a “gay orgy” and asserted that Armstrong had a “tendency to engage in one-on-one casual ‘gay’ sexual encounters with friends.” Shirvell asserted that the “gay orgy” “sheds new light on the deranged character of U of M's new student body president ... [and] shows that Armstrong's push for ‘gender neutral’ housing ... may be part of a broader agenda to allow ‘gay residents to more easily engage in ‘homosexual shenanigans' (read: orgies, underage binge-drinking, and probably illegal drug use, too).” Shirvell wrote similar things about Armstrong's friends and alleged that one male member of the MSA was Armstrong's “secret boyfriend” who was a “closet homosexual.” In a television interview, Shirvell did not deny that on one occasion on a separate Facebook page he referred to Armstrong as “Satan's representative” on the MSA. In addition to authoring the blog, Shirvell appeared outside Armstrong's residence and at events where Armstrong was present and held protest signs.
Initially, Shirvell maintained the blog under the pseudonym “Concerned Michigan Alumnus,” however, on May 20, 2010, the newspaper Between the Lines, published an article identifying Shirvell as an “anti-gay heckler,” the author of the blog, and an assistant attorney general. Shortly thereafter, Shirvell and the blog became the subject of intense media scrutiny and in the summer and fall of 2010, Shirvell appeared on local and national news programs, including Cable News Network's (CNN's) Anderson Cooper AC360 and Comedy Central's The Daily Show, to defend the blog. During the interviews, Shirvell explained that he was speaking as a private citizen and he refused to answer questions about his position with the Department. Nevertheless, the media outlets identified Shirvell as an assistant attorney general. In the interviews, Shirvell explained that he was opposed to Armstrong's policies, which he characterized as a “radical homosexual agenda,” and denied that he had a personal agenda against Armstrong.
The fallout from the interviews was widespread. Then Michigan Attorney General Michael Cox took measures to clarify that Shirvell did not represent the views of the Department, sending an email to CNN and later appearing on AC360 for an interview with Anderson Cooper. Cox explained that, although Shirvell was being a bully and his conduct was “offensive” and “unbecoming of civil discourse,” Shirvell nevertheless had a First Amendment right to express his views. Shortly thereafter, the Michigan Civil Rights Commission and the Ann Arbor City Council passed resolutions condemning Shirvell's behavior and questioning Shirvell's effect on the Department's ability to fulfill its mission. In addition, U–M barred Shirvell from its campus for a time and Armstrong filed a petition for a personal protection order (PPO), which was later dropped. Furthermore, according to testimony from officials within the Department, the Department was inundated with negative e-mails and telephone calls opposed to Shirvell.
Finally, on November 8, 2010, following a disciplinary hearing, the Department terminated Shirvell's employment for “conduct unbecoming a state employee.” The Department issued a termination letter to Shirvell that listed the reasons for the termination as follows:
Following his termination, Shirvell filed a grievance challenging the grounds for termination, arguing that the Department did not have just cause to terminate him under the CSR. Shirvell also filed a claim to recover unemployment benefits.
In the grievance proceeding,1 the circuit court affirmed the Commission's finding that the Department had just cause for termination because Shirvell engaged in “conduct unbecoming a state employee.”
The circuit court reasoned that Shirvell's conduct interfered with the Department's mission and effectiveness and therefore was not protected under the First Amendment. This Court granted Shirvell leave to appeal the circuit court order in Docket No. 316146.2
In the unemployment compensation case,3 the UIA determined that Shirvell was disqualified for benefits under the “misconduct” provision of the Michigan Employment Security Act (MESA), MCL 421.1 et seq. The MCAC affirmed the UIA, but the circuit court reversed the MCAC's order, reasoning that Shirvell engaged in protected speech and therefore could not be denied benefits on the basis that his speech activities amounted to misconduct. This Court granted the Department and the UIA leave to appeal that order.4 This Court consolidated the...
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