Vander Toorn v. City of Grand Rapids

• Decision Date: 04 May 1984
• Docket Number: Docket No. 64623
• Parties: Leonard VANDER TOORN, Plaintiff-Appellant, v. CITY OF GRAND RAPIDS and Mary Jane Dockeray, Defendants-Appellees. 132 Mich.App. 590, 348 N.W.2d 697
• Court: Court of Appeal of Michigan — District of US

Page 697

348 N.W.2d 697

Leonard VANDER TOORN, Plaintiff-Appellant, v. CITY OF GRAND RAPIDS and Mary Jane Dockeray Defendants-Appellees.

Docket No. 64623.

132 Mich.App. 590, 348 N.W.2d 697

Court of Appeals of Michigan.

Submitted Nov. 1, 1983.

Decided March 5, 1984.

Released for Publication May 4, 1984.

[132 MICHAPP 591] Christine A. Gara, Holland, and Willingham, Cote, Hanslovsky,[132 MICHAPP 592] Griffith & Foresman, P.C. by Frederick M. Baker, Jr., East Lansing, for plaintiff-appellant.

G. Douglas Walton, Deputy City Atty., Grand Rapids, for defendants-appellees.

Before MacKENZIE, P.J., and GILLIS and MEGARGLE ^*, JJ.

PER CURIAM.

This case arises from plaintiff's discharge from his position as building maintenance supervisor at the Blandford Nature Center, which is part of the Grand Rapids Public Museum. Plaintiff was a non-union, non-civil service employee of defendant City of Grand Rapids and his immediate supervisor was defendant Mary Jane Dockeray, Director of Blandford Nature Center. Plaintiff appeals as of right from an order of the circuit court dismissing all counts of his amended complaint. We reverse.

One of the counts alleged in plaintiff's amended complaint was that of breach of contract by defendant city in wrongfully terminating plaintiff without just cause, in contravention of defendant city's "Employee Handbook", which provides that, upon "successfully completing the probationary period, you may be discharged or demoted only for cause". This claim of plaintiff is based on Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980). In addition to defendant city's "Employee Handbook", the museum had its own handbook entitled "Museum Staff Handbook", which set forth a review and appeal procedure under which an employee "who believes he has received inequitable treatment" could seek relief. Upon receiving notice of his discharge, plaintiff [132 MICHAPP 593] invoked this procedure. "Step 1" of the procedure involved discussion with his immediate supervisor, and "Step 2" involved review by the museum director; both steps were resolved unfavorably to plaintiff, finding that his termination was based on just cause. Plaintiff then invoked "Step 3" of the procedure, which is described in the "Museum Staff Handbook" as follows:

"Step 3: If the employee is not satisfied with the settlement of the problem, he may ask, in writing, for a review by a Grievance Committee. The Grievance Committee of five people will be elected annually at the beginning of each fiscal year at a meeting of Museum employees excluding the Director and Assistant Director.

"The Grievance Committee will hold interviews with and obtain written statements from all parties concerned.

"This committee, serving as an impartial group will make recommendations for a satisfactory solution based upon their investigation within eight working days of the time of receipt of the request from the employee. These recommendations shall be forwarded to the employee, the Museum Director, and the Art and Museum Commission for final action.

"If the employee is not satisfied with the recommendation of the Grievance Committee, he may ask, in writing, for a review by the Art and Museum Commission within five working days, or he may ask for a hearing before the Commissioners at which time the employee and one representative of his choice will be allowed to defend his point of view. The Commissioners may call any additional personnel involved in the case to present their side.

"If the Grievance Committee wishes to have the case reviewed by the Art and Museum Commission, they may so request in writing.

"In any case, all information, written statements, and documents must be made available to the Art and Museum Commission.

[132 MICHAPP 594] "If the problem involves legal advice, a written opinion must be obtained from an attorney.

"Disposition of the case will be made by the Art and Museum Commission at its next regular meeting, or as soon as practicable."

The grievance committee, consisting of other museum employees, issued a report which was in large part favorable to plaintiff. The committee recommended that the Art and Museum Commission more fully investigate the circumstances surrounding plaintiff's termination and recommended as possible solutions that plaintiff be given a job in another city department or be allowed to retire without loss of benefits. After a hearing before the Art and Museum Commission, however, the commission found that there was just cause for discharge and issued a final decision terminating plaintiff's employment.

The circuit court concluded that plaintiff was not entitled to submit his Toussaint wrongful discharge claim to a jury since the Art and Museum Commission's final decision to terminate plaintiff was not subject to de novo review. The court found, relying on Viculin v. Dep't of Civil Service, 386 Mich. 375, 192 N.W.2d 449 (1971), that the decision to terminate was that of an administrative agency to which Const.1963, art. 6, Sec. 28 applied, and treated plaintiff's complaint as one seeking an order of superintending control under which the scope of review was limited to determining whether the Commission's decision was "supported by competent, material & substantial evidence on the whole record" as provided under Const.1963 art. 6, Sec. 28. The court concluded that plaintiff's discharge was supported by competent, material, and substantial evidence, and affirmed the Commission's decision. The court then issued [132 MICHAPP 595] an order dismissing plaintiff's wrongful discharge count and also dismissing all of plaintiff's other counts, finding that its affirmance of the Commission's decision to terminate was dispositive of plaintiff's other counts as well. We question the court's determination that its affirmance of the Commission's decision to discharge necessarily disposed of virtually all the other claims set forth in plaintiff's additional counts for negligence, retaliatory discharge, discrimination, promissory estoppel, detrimental reliance, interference with contractual relationship and prospective economic opportunities, libel and slander, and intentional infliction of mental distress. But, moreover, we find that the underlying reason for the court's dismissal of plaintiff's complaint, that the Commission's decision to discharge plaintiff was subject to only limited judicial review, was error.

Defendants argue that the court properly treated the Art and Museum Commission's final decision to terminate plaintiff as that of an administrative agency for which the standard of review is the minimum review provided in Const.1963, art. 6, Sec. 28. We cannot agree. That constitutional provision states in pertinent part as follows:

"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. * * *." Const.1963, art. 6, Sec. 28.

The threshold question is whether the Art and [132 MICHAPP 596] Museum Commission is a judicial or quasi-judicial administrative agency existing under the constitution or by law. We find that it is not, and that therefore Const.1963, art. 6, Sec. 28 is inapplicable.

In Viculin, supra, 386 Mich. p. 385, 192 N.W.2d 449, relied on by the circuit court and by defendants on appeal, the Supreme Court held that Sec. 28 applied to final decisions of the Michigan Civil Service Commission. Defendants also direct our attention to Montiy v. East Detroit Civil Service Bd., 54 Mich.App. 510, 513, 221 N.W.2d 248 (1974), where this Court noted that the standard of review applicable to the decision of the Civil Service Board of East Detroit was that provided in Sec. 28. However, the present case is distinguishable. A municipal officer, board, commission, or the like may be authorized by law to conduct hearings on the removal or suspension of employees. 4 McQuillin, Municipal Corporations (3d ed), Sec. 12.259, p 392. The powers of a local government board or commission are limited to those provided by the city charter or local ordinance. Division 26 of the Amalgamated Ass'n of Street, Electric Railway & Motor Coach Employees of America v. Detroit, 330 Mich. 195, 212-213, 47 N.W.2d 70 (1951); Hubbard v. Board of Trustees of Dearborn Retirement System, 319 Mich. 395, 399, 29 N.W.2d 779 (1947). Here, the Art and Museum Commission was not authorized, either by the city charter or ordinance, to act as a quasi-judicial administrative agency having the responsibility of adjudicating claims brought by museum or any other city employees.

Defendants cite the following provision of the city charter in support of their assertion that the Commission is a quasi-judicial administrative agency:

"244. Employees. Sec. 4. It shall be the duty of the [132 MICHAPP 597] Board [of Art and Museum Commissioners] to appoint and employ such employees as the economical and efficient service of this department shall require and to prescribe and fix their duties and compensation."

However, we fail to perceive in this provision any intention of the city charter's framers that the Art and Museum Commission function as a quasi-judicial administrative agency. In contrast, the Michigan Civil Service Commission involved in Viculin, supra, is vested by the state constitution with plenary power to "make rules and regulations covering all personnel transactions, and regulate all conditions of employment", Const.1963, art. 11, Sec. 5. Also contrast Goodfellow v. Detroit Civil Service Comm., 312 Mich. 226,...