Viculin v. Department of Civil Service, 51

• Citation: 192 N.W.2d 449,386 Mich. 375
• Decision Date: 21 December 1971
• Docket Number: No. 51,51
• Parties: Donald VICULIN, Petitioner-Appellant, v. DEPARTMENT OF CIVIL SERVICE, Respondent-Appellee.
• Court: Supreme Court of Michigan

Page 449

192 N.W.2d 449

386 Mich. 375

Donald VICULIN, Petitioner-Appellant, v. DEPARTMENT OF CIVIL SERVICE, Respondent-Appellee.

No. 51.

Supreme Court of Michigan.

Dec. 21, 1971.

William L. Mackay, Lansing, for petitioner-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Charles D. Hackney, Asst. Atty. Gen., State Affairs Div., Lansing, for respondent-appellee Civil Service Commn.

Before the Entire Bench.

WILLIAMS, Justice.

This case presents two broad issues for the Court's consideration. The first concerns the method and scope of judicial review of final decisions of the State Civil Service Commission; the second concerns the propriety and sufficiency of the administrative procedures and evidence by which appellant was discharged from state employ.

With respect to the method and scope of review the questions are:

A. Whether Constitution 1963, art. 6, § 28 either guarantees or permits De novo review of a final decision of the State Civil Service Commission affirming appellant's discharge from state employment? ¹

B. Whether the Administrative Procedures Act ² provisions for either judicial or administrative review are applicable to State Civil Service Commission proceedings?

C. Whether § 631 of the Revised Judicature Act ³ is a proper basis for review of decisions of the State Civil Service Commission?

With respect to the propriety and sufficiency of the procedures and evidence by which appellant was dismissed, the questions are: ⁴

A. Whether appellant Viculin received a reasonably definite statement of the charge or charges against him in accordance with the rules of the Civil Service Commission and due process of law?

B. Whether appellant was afforded a reasonable opportunity to meet the agency's case against him?

C. Whether the Civil Service Hearing Board committed prejudicial and reversible error in receiving evidence of Viculin's 1964 conditional service rating which had been reversed by the Commission and in receiving evidence of two conditional service ratings received in 1961?

D. Whether the Civil Service Commission or the Hearing Board made proper findings of fact?

Appellant Donald Viculin was a Vocational Rehabilitation Division disability examiner with the Department of Education. On June 13, 1966, Viculin received an unsatisfactory 'conditional interim service rating' which was appealed to a Hearing Board of the Michigan Civil Service Commission. Pending this appeal Mr. Viculin continued working and on December 8, 1966, he received an 'unsatisfactory' service rating and was dismissed effective January 7, 1967, pursuant to Civil Service Rule 26.4 permitting dismissal for receiving nonsatisfactory ratings in two successive rating periods. ⁵ Viculin appealed this dismissal to the Civil Service Hearing Board pursuant to Civil Service Rule 33.4 permitting such bypass of his own agency upon application to the State Personnel Director. ⁶

On February 3, 1967, the Hearing Board affirmed appellant's dismissal from state service and pursuant to Rule 33.10 relating to conduct of hearings ⁷ made the following 'findings':

'1. Unnecessary long delays of cases.

'2. Lack of response to supervisor's help.

'3. Gross errors in case action.

'4. Carelessness in routine work.

'5. Poor case management at desk.

'6. Inability to acknowledge mistakes.

'7. Poor handling of invoices.

'The evidence indicates that the employee's performance was inadequate over a considerable period of time. He had received fair notice of his deficiencies. On December 1, 1964, the Civil Service Commission had indicated that he should be given another chance to improve his performance. He has not performed acceptably in the essential areas set forth on the ratings of June 13, 1966 and December 8, 1966.

'The Hearing Board is satisfied that no effective change in the employee's performance could be expected if he were given a further period of probation.

'The Hearing Board affirms the dismissal.'

Viculin appealed to the Civil Service Commission pursuant to Rule 33.11 providing for such action, ⁸ and, after full hearing on April 11, 1967, with arguments and briefs filed, the Commission informed plaintiff by letter dated April 12, 1967, that it affirmed the Board's decision but instructed the staff to make efforts to find plaintiff another Civil Service position for which he was qualified.

Appellant filed a 'petition for review' in the Ingham Circuit Court. The trial court held that Const.1963, art. 6, § 28 does not provide for De novo review, that jurisdiction was proper under either the Administrative Procedures Act ⁹ or RJA 600.631, that the findings of the Hearing Board and the Civil Service Commission were sufficient and that 'on the whole record' appellant's discharge was procedurally proper and supported by competent, material, and substantial evidence.

The Court of Appeals affirmed by Per curiam opinion without discussing specifically the merits of the issues raised, but rather determining that on the basis of the whole record there was no denial of due process, Viculin v. Dept. of Civil Service, 27 Mich.App. 336, 338, 183 N.W.2d 301 (1970).

I.--Method and Scope of Judicial Review

A. Applicability of Const. 1963, art. 6, § 28.

Art. 6, § 28 was a new and unique provision of the Constitution of 1963. ¹⁰ It provides in pertinent part as follows:

'administrative action, review. Sec. 28. 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. Findings of fact in workmen's compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.

'In the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decision relating to valuation or allocation.'

Before the adoption of this provision we held in a continuing line of cases beginning with In Re Fredericks, 285 Mich. 262, 280 N.W. 464 (1938), that final decisions of the Civil Service Commission were reviewable by the Circuit Court pursuant to the supervisory control over 'inferior tribunals' vested in the Circuit Court under Const.1908, art. 7, § 10. We held, however, that an attempt by the legislature to create a review De novo would fail as an unconstitutional endeavor to foist non-judicial functions upon the courts and that review must consequently be in the nature of Certiorari. 285 Mich. 262, 267, 28 N.W. 464.

Appellant contends that art. 6, § 28 was intended to change this and guarantees a right of De novo review of administrative decisions. Appellee Civil Service Commission contends that art. 6, § 28 is not applicable to these proceedings and, alternatively, that it does not contemplate a right of De novo review. For the reasons stated below we hold that Const.1963, art. 6, § 28 does apply to final decisions of the Civil Service Commission but that review shall not be De novo.

Art. 6, § 28 by its terms would apply to any final decision of an 'administrative . . . agency existing under the constitution . . ., which (is) . . . quasi-judicial and affect(s) private rights or licenses, . . .'

The Michigan Civil Service Commission is an administrative agency existing under the Constitution, Const. 1963, art. 11, § 5. ¹¹

The Civil Service Commission is a 'quasi-judicial' body. People ex rel. Clardy v. Balch, 268 Mich. 196, 200, 255 N.W. 762 (1934); In re Fredericks, 285 Mich. 262, 266, 280 N.W. 464 (1938); In Re Doyle, 312 Mich. 205, 210, 20 N.W.2d 161 (1945); Goodfellow v. Detroit Civil Serv. Comm'n, 312 Mich. 226, 232, 20 N.W.2d 170 (1945); and a continuing line of cases not cited here.

Counsel for appellee Civil Service Commission contends, however, that art. 6, § 28 extends only to those administrative agencies which are quasi-judicial And 'affect private rights or licenses.' He argues that since a Civil Service employee does not have a constitutionally protected private right to his position that the quoted constitutional provision has no application. For this proposition he cites Angilly v. United States, 199 F.2d 642, 644 (2d Cir. 1952) and Kelliher v. New York State Civil Service Commission, 21 Misc.2d 1034, 194 N.Y.S.2d 89 (N.Y.1959). In Kelliher, the Court held that there was no violation of due process in the termination of a Civil Service employee without a hearing in the absence of a statutory direction. See Gaidamavice v. Newaygo Board of County Road Commissioners, 341 Mich. 280, 288, 67 N.W.2d 178 (1954); City of Detroit v. Div. 26 of the Amalgamated Ass'n of Street, Elec. Railway & Motor Coach Employees of America, 332 Mich. 237, 247, 51 N.W.2d 228 (1952).

The more recent cases, however, hold that even though there may be no constitutional right to engage in certain activities or receive benefits, the government must still afford due process guarantees in terminating benefits. In Goldberg v. Kelly, 397 U.S. 254; 90 S.Ct. 1011; 25 L.Ed.2d 287 (1970), for example, the Court said that procedural rights with respect to the distribution of public assistance benefits cannot be avoided by contending that such benefits are 'a privilege and not a right,' 397 U.S. 254, 262, 90 S.Ct. 1011. The Court held that welfare benefits could not be cut off without a pre- termination hearing meeting the fundamental requisites of due process of law--an opportunity to be heard at a meaningful time and in a meaningful manner. ¹²

This distinction was previously noted by the Court in ...