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Beth BAUER, Petitioner-Appellant, v. SAGINAW COUNTY and Saginaw County Prosecutor, Respondents-Appellees.
Petitioner, Beth Bauer, appeals by leave granted 1 the order of the Saginaw Circuit Court reversing the determination of the administrative-law judge (ALJ) for the Michigan Administrative Hearing System that the newly elected Saginaw County prosecutor discharged petitioner in violation of the political freedom act, MCL 15.401 et seq., and vacating the ALJ's decision awarding petitioner damages. We affirm.
I. FACTUAL BACKGROUND
On April 12, 1989, Michael Thomas was appointed Saginaw County prosecutor. According to Thomas, he had the statutory right to appoint staff of his choosing, including the legal office manager, for the appropriated positions under the prosecutors’ appointment/tenure statute, MCL 49.31 et seq. Thomas chose petitioner, who had been his legal secretary in private practice, as his legal office manager for the prosecutor's office. At the time, the legal office manager position was not unionized and was an at-will position.
The prosecutorial staff subsequently unionized in 2004, with the legal office manager position represented by the United Auto Workers Local 455, Unit 48 Manager Union. The 2004 collective-bargaining agreement (CBA) provided that a nonprobationary employee could be disciplined, suspended, or discharged for just cause. The 2004 CBA specifically preserved certain rights of elected officials in Appendix A to the CBA. Appendix A stated, in relevant part: “Saginaw County Elected Officials and Judges have the legal authority to appoint their deputy(ies) and other personnel in accordance with the laws, regulations and court rules of the State of Michigan․” Additionally, “Elected Officials’ Deputies, and others as provided by law, regulation or court rule, serve at the sole and unabridged discretion of the Elected Official or Judge/Court to whom said employee is assigned. All of said positions shall be filled at the sole discretion of the Elected Official or Judge/Court for which said employee is to work.” Appendix A also listed the “Job Positions” for elected officials and judges and “Their Corresponding Employer and/or Co-Employer.” Under Appendix A, Saginaw County and Saginaw County Prosecuting Attorney were coemployers of “Chief Assistant Prosecutor,” “Assistant Prosecutor IV,” and “Legal Office Manager.”
During the 2008 collective-bargaining sessions, Saginaw County proposed to eliminate just-cause protection for the legal office manager position and replace it with an at-will employment standard. According to Thomas, he was “considerably older” than petitioner and was uncertain whether he would continue as prosecuting attorney after the next election year in 2012, so he sought to find “a way to make sure that Miss Bauer's employment as [legal office manager] continued” and to “create job protection” for her so that she could retain her position as the legal office manager “whether I was there or not, whether I was dead or alive or whether or not I was the Prosecutor.”
Thomas directed the county's labor specialist, Andre Borrello, to draft a memorandum of understanding (MOU) as a contract addition to the CBA. The union and respondents entered into a MOU regarding the legal office manager position. The MOU stated, in relevant part:
WHEREAS, the Employer, Co-Employer and Union have agreed in principle that although Article 8 of the CBA provides a just cause standard for discipline, subject to law and Appendix A, the position of Legal Office Manager in the Prosecuting Attorney's Office shall be an at-will position, subject to the terms and conditions of this Memorandum of Understanding.
NOW THEREFORE, it is agreed as follows:
1. Contingent on ratification of a new CBA, which shall designate in its Appendix that the position of Legal Office Manager in the Prosecuting Attorney's Office is an at-will position, the Employer, Co-Employer and Union agree that the incumbent in said position, Beth Bauer, is not an at-will employee, but rather an employee subject to discipline under a just cause standard.
2. Once the incumbent vacates the position, all subsequent employees holding the Legal Office Manager position in the Prosecuting Attorney's Office shall be at-will employees and not subject to discipline under a just cause standard, unless specifically negotiated in future CBAs.
3. This Memorandum of Understanding shall have no force or effect unless and until a new CBA is ratified, which designates in its Appendix that the position of Legal Office Manager in the Prosecuting Attorney's Office is an at-will position.
4. This Memorandum of Understanding shall not affect any provision of the current or future CBA other than that which is specifically provided herein.
The MOU was signed by Thomas as coemployer and dated December 1, 2009. Thomas acknowledged that the MOU did not address the duration of petitioner's employment as the legal office manager, nor did it contain language limiting the authority of a successor prosecutor to appoint the legal office manager. Moreover, Thomas was told by the county's civil counsel and “[p]rosecutors around the state” that this MOU did not prevent his successor from making a political appointment. The 2008 CBA was ratified and reflected the new at-will employment standard.
In 2012, Thomas faced a challenge in the primary election. Petitioner campaigned for Thomas and served actively on his campaign committee, as she had in prior elections. The challenger, John McColgan, Jr., won the primary election and went on to be elected as prosecuting attorney. On December 10, 2012, prosecutor-elect McColgan sent an e-mail to petitioner that stated, in relevant part, “As I am sure you are aware, I am planning on bringing in my own office manager, as I believe every prosecutor before me has done. It would be greatly appreciated [i]f you could advise as to your future plans, thereby allowing the most efficient transition possible.”
Petitioner and the union representatives subsequently met with prosecutor-elect McColgan with respect to the legal office manager position. McColgan stated that he was not bound by the MOU and that he was bringing in his own legal office manager. On McColgan's first official day as prosecutor—January 2, 2013—petitioner reported to the prosecutor's office to find the new legal office manager sitting at the legal office manager's desk. McColgan met with petitioner and offered her a job as a floater in the prosecutor's office, but petitioner did not find the offer “plausible.” Later the same day, petitioner was presented with a “notice of lay-off, suspension, demotion, discharge” signed by McColgan, which notified petitioner of both “discharge (permanent employee)” and “not reappointed per statute” effective January 16, 2013. The notice indicated that the general reason for discharge was “[s]ervices no longer needed. Are an at-will employee under state statute.”
II. PROCEDURAL HISTORY
Petitioner grieved her discharge, claiming that the notice of “discharge” and “not reappointed by statute” were “in direct conflict with” the 2008 CBA. While the grievance was pending, petitioner filed a wrongful-discharge action in federal court against McColgan and Saginaw County. The federal complaint presented several counts, including violation of petitioner's First Amendment right to political affiliation under 42 USC 1983, breach of employment agreement, legitimate expectation of just-cause employment, tortious interference with business expectancy, age and race discrimination, and intentional infliction of emotional distress. See Bauer v. Saginaw Co., 111 F. Supp. 3d 767 (E.D. Mich, 2015). The parties agreed to hold the grievance in abeyance pending completion of the federal action. Bauer, 111 F. Supp. 3d at 772.
While the federal action was ongoing, plaintiff filed the present administrative action in the Michigan Administrative Hearing System (MAHS).2 Petitioner alleged in her complaint that she supported Thomas during the 2012 campaign and that she did not learn until January 2, 2013, that McColgan had removed her from her position as legal office manager. Petitioner asserted that she believed she was discharged in retaliation for her political support of Thomas in violation of MCL 15.403(1)(d) of the political freedom act. Petitioner also asserted that she was a just-cause employee and that McColgan provided no substantive reason for her discharge.
In response to the complaint, respondents asserted that Saginaw County authorized and appropriated funds under MCL 49.31 and MCL 49.35 of the prosecutors’ appointment/tenure statute for the Saginaw County prosecutor to appoint a chief assistant prosecuting attorney, 23 assistant prosecuting attorneys, a legal office manager, and clerical staff. Respondents asserted that under MCL 49.35, each of these employees served “at the pleasure of the prosecuting attorney” and had no right to maintain the position after the conclusion of the prosecutor's term of office. They noted that petitioner testified in her deposition in underlying litigation that she was appointed to the position of legal office manager by Thomas.
Respondents argued that the political freedom act had never been applied to prevent an elected public official from exercising his statutory rights to make a political, partisan appointment and that the political freedom act did not foreclose an elected official's right to appoint. They noted that the federal district court had concluded, with respect to petitioner's First Amendment claim, that the job duties of the legal office manager were inherently “political” and “confidential” so that a “patronage appointment” was permitted. Additionally, respondents argued that the political freedom act was otherwise inapplicable to petitioner's claim and that she had no cause of action under the act because she did not allege that McColgan or the county maintained a policy or practice that prevented her from engaging in political activity on behalf of a candidate.
While the administrative action was pending, the federal district court granted summary judgment in favor of respondents. Bauer, 111 F. Supp. 3d at 784. The United States Court of Appeals for the Sixth Circuit affirmed the district court's decision. Bauer v. Saginaw Co., 641 F. Appx. 510 (C.A. 6, 2016). The Sixth Circuit resolved the civil rights, discrimination, and emotional-distress claims, writing:
[B]ecause political affiliation is an appropriate consideration for the Legal Office Manager position, the defendants did not violate Bauer's constitutional rights by terminating her. And because Bauer failed to exhaust a mandatory grievance procedure in her employment agreement, we do not reach the merits of her breach-of-contract claim. As Bauer has failed to show a dispute of fact in any of her remaining claims, we affirm the district court's grant of summary judgment to the defendants. [Bauer, 641 F. Appx. at 512.]
On November 18, 2015, respondents moved to dismiss petitioner's political freedom act claim in the administrative action on preclusion grounds. Respondents noted that the federal district court had concluded: (1) that the position of legal office manager is an appointee of the county prosecutor and that personal and political affiliation are appropriate requirements for the effective performance of the job; (2) that if petitioner was a clerical employee as she claimed, she would be subject to MCL 49.31; (3) that there was no merit or factual support for petitioner's claim that she was not reappointed to the position of legal office manager because of her race or her age; (4) that petitioner's breach-of-contract claim was barred by her failure to exhaust her administrative remedies through the grievance process established by the 2008 CBA; (5) that petitioner's just-cause employment claim was barred because the MOU was incorporated into the expired CBA; (6) that petitioner's “legitimate expectation of just cause employment claim” had been abandoned or, in the alternative, that the MOU was incapable of creating an expectation of just-cause employment as a matter of law; and (7) that petitioner's claim for intentional infliction of emotional distress was barred because McColgan was acting within the scope of his authority and discretion under MCL 49.31 when he chose not to reappoint petitioner to the position of legal office manager. Respondents also argued that even if res judicata or collateral estoppel did not preclude relitigation of these issues, petitioner was an appointed employee who served at the pleasure of the prosecutor. The ALJ denied the motion.
During the hearing on the merits of petitioner's claims under the political freedom act, respondents argued that the political freedom act was not applicable in this case and that the act had no impact on the statutory authority of a prosecutor to appoint his or her staff under MCL 49.31. Respondents argued that McColgan “appointed a legal office manager of his choosing ․ and exercised that right as every other Prosecutor before him has done, including Mr. Thomas, his predecessor Judge Boyd, and his predecessor, Mr. Kaczmarek, each appoint[ed] their own legal office manager at the time that they took office in the Prosecutor's Office.” Respondents further argued that MCL 49.31 provided the authority to appoint, and that MCL 49.35 provided the authority to terminate because it provided that appointees serve “at the pleasure of the prosecutor” and that the term “at the pleasure of” means that the appointee holds the position during the time the prosecutor is in office and has “no rights extensive of that period of time.” Respondents also argued that “[t]he issue in this case is whether or not action was taken against Miss Bauer simply because she engaged in political activities defined by [MCL 15.403(1)(d)], not whether she was a contract employee or to what degree there was a contract with Miss Bauer. It's irrelevant.”
Following the hearing, the ALJ concluded that the position of legal office manager is not “a position listed or subject to” MCL 49.31 and MCL 49.35 of the prosecutors’ appointment/tenure statute. The ALJ also found that petitioner was not appointed by Thomas but, rather, that she was hired by Saginaw County. The ALJ ruled that petitioner's job as legal office manager was “a ‘just cause’ union position and [petitioner] could not simply be discharged without any review of her performance.” The ALJ found that there was no reason for petitioner's discharge aside from her political activities in support of Thomas and that her discharge therefore violated the political freedom act. In lieu of entering a damages award, the ALJ gave the parties 30 days to explore settlement.
The parties did not settle, so the ALJ held an additional hearing on damages. The ALJ concluded that petitioner was entitled to back pay plus payment of work-related benefits totaling $144,707. The ALJ also ruled that back pay would continue to accrue until respondents reinstated petitioner. The ALJ awarded attorney fees of nearly $50,000 to petitioner.
Respondents petitioned for review in the circuit court. Following oral argument, the circuit court concluded that the ALJ had erred as a matter of law. The court first determined that petitioner's contract claims regarding the MOU were part of the union grievance process, which remained pending and should not have been addressed in the administrative proceeding. The court next determined that the sole issue before the ALJ was whether petitioner's rights under the political freedom act were violated. The court said that the issue presented in the case was “the impact, if any, of [the political freedom act] upon the patronage authority granted the prosecutor by MCL 49.31-35.” The court found that the ALJ erred by concluding that the political freedom act prevented McColgan from discharging petitioner and that the position of legal office manager is encompassed within MCL 49.31. Moreover, the court concluded that there is no provision in the political freedom act that restricts the prosecutor's statutory authority to appoint under MCL 49.31. The court reversed the ALJ's decision on the merits and vacated the ALJ's award of damages and attorney fees.
Petitioner now appeals the circuit court's decision by leave granted. In granting leave to appeal, this Court limited petitioner's appeal to “the issues raised in the application and supporting brief.” Bauer v. Saginaw Co., unpublished order of the Court of Appeals, entered December 14, 2018 (Docket No. 344050).
III. STANDARD OF REVIEW
In Dignan v. Mich. Pub. Sch. Employees Retirement Bd., 253 Mich. App. 571, 576, 659 N.W.2d 629 (2002), this Court, setting forth the standard of review applicable to a circuit court's review of a decision of the board, stated:
A circuit court's review of an administrative agency's decision is limited to determining whether the decision was contrary to law, was supported by competent, material, and substantial evidence on the whole record, was arbitrary or capricious, was clearly an abuse of discretion, or was otherwise affected by a substantial and material error of law. “Substantial” means evidence that a reasoning mind would accept as sufficient to support a conclusion. Courts should accord due deference to administrative expertise and not invade administrative fact finding by displacing an agency's choice between two reasonably differing views. [Citations omitted.]
This Court reviews a lower court's review of an administrative decision to determine “whether the lower court applied correct legal principles and whether it misapprehended or misapplied the substantial evidence test to the agency's factual findings, which is essentially a clear-error standard of review.” Lawrence v. Mich. Unemployment Ins. Agency, 320 Mich. App. 422, 431, 906 N.W.2d 482 (2017) (quotation marks and citation omitted). Substantial evidence means evidence that “a reasonable mind would accept as adequate to support a decision, being more than a mere scintilla, but less than a preponderance of the evidence.” Id. (quotation marks and citation omitted). In other words, the circuit court's legal conclusions are reviewed de novo and its factual findings are reviewed for clear error. Mericka v. Dep't of Community Health, 283 Mich. App. 29, 36, 770 N.W.2d 24 (2009).
IV. POSITIONS WITHIN THE SCOPE OF MCL 49.31
Petitioner first argues that her employment as the legal office manager in the Saginaw County Prosecutor's Office did not fall within the scope of an appointed “clerical employee” as contemplated by MCL 49.31. Therefore, petitioner argues, she was hired by Saginaw County and did not serve at the pleasure of the Saginaw County Prosecutor. We disagree.
The prosecutors’ appointment/tenure statute grants county boards of supervisors the power to authorize county prosecutors to appoint certain staff positions within the prosecutor's office. MCL 49.31. Section 1 of the statute describes the positions to be appointed as “assistant prosecuting attorneys” and “investigating officers, clerks, stenographers and other clerical employees.” MCL 49.31.3 Section 5 of the statute grants prosecutors the authority to discharge appointed employees, as follows: “assistant prosecuting attorneys and other employees appointed by [the] prosecuting attorney under this act shall hold office during the pleasure of the prosecuting attorney.” MCL 49.35. This Court has interpreted the appointment/tenure statute to identify only five types of employees that are subject to the prosecutor's appointment and discharge power: (1) assistant prosecutors, (2) investigating officers, (3) clerks, (4) stenographers, and (5) other clerical employees. Genesee Co. Social Servs. Workers Union v. Genesee Co., 199 Mich. App. 717, 721, 502 N.W.2d 701 (1993).
Petitioner argues that the legal office manager is not an employee subject to the prosecutor's power of appointment under MCL 49.31 because the position of legal office manager is not specifically named in the statute. She asserts that the ALJ properly found that the legal office manager position does not fall within the scope of “clerks, stenographers and other clerical employees” encompassed by MCL 49.31 and that the circuit court erred by disregarding the ALJ's factual finding that the legal office manager is not a clerical employee. Petitioner also asserts that the circuit court committed legal error by finding the legal office manager to fall within the definition of “other clerical employee.”
There are no Michigan appellate decisions that specifically address whether certain positions fit within the statutory terms of “clerks, stenographers and other clerical employees” in MCL 49.31. The Sixth Circuit Court of Appeals, when ruling on petitioner's federal claims, did not directly address whether the legal office manager position was within the scope of the appointment/tenure statute. The Sixth Circuit did, however, consider the appointment/tenure statute with respect to whether McColgan was immune from petitioner's claim of intentional infliction of emotional distress. Bauer, 641 F. Appx. at 519-520. The Sixth Circuit suggested that the legal office manager position is within the scope of the prosecutor's appointment and discharge authority under the appointment/tenure statute as follows:
The County Prosecutor has the authority to appoint “assistant prosecuting attorneys,” “investigating officers, clerks, stenographers and other clerical employees.” MCL § 49.31. These employees serve at the pleasure of the Prosecutor. MCL § 49.35. It would make no sense for McColgan to be authorized to appoint (§ 49.31) and terminate (§ 49.35) assistant prosecutors, investigators, clerks, stenographers, and other clerical employees—basically everyone in the Prosecutor's Office—while lacking the authority to hire and fire the Legal Office Manager. As such, McColgan was acting within his executive authority when he terminated Bauer and is entitled to absolute immunity. [Id. at 520 (emphasis added).]
In contrast, the ALJ in this action concluded that the position of legal office manager is not within the scope of the prosecutors’ appointment/tenure statute. The ALJ reasoned that
the Office Manager Position is not a position listed or subject to this statute. This position was represented by the UAW from 2004-2013․ Also, contrary to MCL 49.35’s requirements, Petitioner was not appointed by Prosecutor Thomas with authorization of Saginaw County. She was hired by the County.
The ALJ's finding that petitioner was hired by the county was apparently based on petitioner's initial notice of employment, which is printed on a Saginaw County form.
However, the circuit court determined that petitioner's job duties, as found by the ALJ, were clerical or involved supervision of clerical workers, making her position “somewhat of a ‘super clerk’.” The circuit court accepted the ALJ's factual findings with respect to petitioner's job duties:
Beth ensured adequate attendance was maintained and that the clerical staff were performing their assigned job duties. Beth administered the County's personnel policies and might impose discipline related to attendance violations. Beth was also involved with hiring efforts. She followed applicable collective bargaining agreements and posted job opening[s] for clerical staff as they arose. Beth also estimated the office supplies, witness fees, and other standard costs, based on historic usage, to assist with budgeting. Beth reviewed employee time records and posted the information to the County's payroll system.
The circuit court determined that the fact that petitioner had some autonomy and discretion did not change the nature of her duties within the meaning of MCL 49.31. The circuit court concluded that the ALJ made an error of law in concluding that the legal office manager position did not fall within the scope of MCL 49.31. We agree.
This issue—whether the legal office manager is an employee subject to appointment under MCL 49.31—involves a legal question of statutory interpretation. “The primary goal of statutory interpretation is to give effect to the intent of the Legislature.” Briggs Tax Serv., L.L.C. v. Detroit Pub. Sch., 485 Mich. 69, 76, 780 N.W.2d 753 (2010). The most reliable evidence of legislative intent is the plain language of the statute. South Dearborn Environmental Improvement Ass'n, Inc. v. Dep't of Environmental Quality, 502 Mich. 349, 360-361, 917 N.W.2d 603 (2018). If the language of the statute is clear and unambiguous, it is presumed that the Legislature intended the meaning plainly expressed in the statute. Gardner v. Dep't of Treasury, 498 Mich. 1, 6, 869 N.W.2d 199 (2015). The court's interpretation of a statute must give effect to every word, phrase, and clause. South Dearborn, 502 Mich. at 361, 917 N.W.2d 603.
Further, an interpretation that would render any part of the statute surplusage or nugatory must be avoided. Id. Common words and phrases are given their plain meaning as determined by the context in which the words are used, and a dictionary may be consulted to determine the meaning of an undefined word or phrase. Id. “In construing a legislative enactment we are not at liberty to choose a construction that implements any rational purpose but, rather, must choose the construction which implements the legislative purpose perceived from the language and the context in which it is used.” Frost-Pack Distrib. Co. v. Grand Rapids, 399 Mich. 664, 683, 252 N.W.2d 747 (1977). Statutes must be construed reasonably, “keeping in mind the purpose of the act, and to avoid absurd results.” Rogers v. Wcisel, 312 Mich. App. 79, 87, 877 N.W.2d 169 (2015).
The prosecutors’ appointment/tenure statute recognizes the authority of a county prosecutor to appoint certain employees, MCL 49.31, and that these employees serve at the prosecutor's pleasure, MCL 49.35. The terms “clerks” and “clerical employees” are not defined in the statute. Therefore, we seek guidance from a dictionary. Merriam-Webster's Collegiate Dictionary (11th ed.) defines “clerk” as: “an official responsible (as to a government agency) for correspondence, records, and accounts and vested with specified powers or authority (as to issue writs as ordered by a court)”; “one employed to keep records or accounts or to perform general office work”; and “one who works at a sales or service counter.” Similarly, Random House Webster's College Dictionary (1997) defines “clerk” as “a person employed to keep records, file, type, or do other general office tasks” and as “a person who keeps the records and performs the routine business of a court.” Additionally, “clerical” is defined as “of, appropriate for, or assigned to an office clerk” or “doing the work of a clerk.” Id.
A de novo review of the record shows that the legal office manager's duties were primarily clerical in nature. The additional supervisory functions delegated by the prosecutor to petitioner in her role as legal office manager do not appear to exclude the position from classification as a clerk or clerical employee. Indeed, it is clear to this Court that by including the term “other clerical employees” after specifically delineating certain positions, the Legislature intended to authorize a prosecutor to appoint clerical employees not specifically named. An office manager would fall within this context.
The Sixth Circuit's reasoning, in the context of petitioner's claim of intentional infliction of emotional distress, is also persuasive here. As noted, the Sixth Circuit reasoned:
The County Prosecutor has the authority to appoint “assistant prosecuting attorneys,” “investigating officers, clerks, stenographers and other clerical employees.” MCL § 49.31. These employees serve at the pleasure of the Prosecutor. MCL § 49.35. It would make no sense for McColgan to be authorized to appoint (§ 49.31) and terminate (§ 49.35) assistant prosecutors, investigators, clerks, stenographers, and other clerical employees—basically everyone in the Prosecutor's Office—while lacking the authority to hire and fire the Legal Office Manager. [Bauer, 641 F. Appx. at 520.]
Petitioner also argues that the circuit court erred by impliedly rejecting the ALJ's finding that petitioner was not appointed by Thomas to the position of legal office manager but, rather, was hired by Saginaw County. Petitioner contends that the notice of employment, which was printed on a Saginaw County form, as well as “the testimony of Bauer and Prosecutor Thomas that Bauer was hired by the County and not appointed,” weighed in favor of a finding that petitioner was not appointed and, therefore, that the prosecutors’ appointment/tenure statute did not apply.
A prosecutor is a coemployer with the county as a result of the prosecutors’ appointment/tenure statute. St. Clair Prosecutor v. American Federation of State Employees, 425 Mich. 204, 225, 388 N.W.2d 231 (1986). Thomas acknowledged that he appointed petitioner pursuant to an elected prosecutor's statutory authority under MCL 49.31. He also acknowledged that he signed the notice of employment on April 26, 1989. Petitioner testified that she had been appointed by Thomas, that the legal office manager position was not advertised, that she had no experience working in a prosecutor's office or as an office manager, and that the prosecutor could appoint whomever he wanted pursuant to statute. The ALJ's finding that petitioner was not appointed by Thomas to the legal office manager position was not supported by competent, material, and substantial evidence on the whole record. Petitioner's argument that the record supports the ALJ's finding that petitioner was not appointed is misplaced.
In sum, we conclude that the circuit court properly reasoned that the legal office manager position is within the scope of the prosecutors’ appointment/tenure statute and that McColgan had statutory authority to appoint a legal office manager under MCL 49.31.
V. PETITIONER'S RIGHTS UNDER THE POLITICAL FREEDOM ACT
Next, petitioner argues that a prosecutor's statutory authority to discharge employees under the prosecutors’ appointment/tenure statute is limited by the political freedom act, and she contends that Council No. 11, AFSCME v. Civil Serv. Comm., 408 Mich. 385, 292 N.W.2d 442 (1980), “conclusively establishes” that a prosecutor can discharge an employee appointed under MCL 49.31 only for off-duty political activity that is shown to adversely affect job performance. Again, we disagree.
Petitioner's complaint alleged that § 3 of the political freedom act, MCL 15.403, applies to employees of political subdivisions of the state and defines permissible political activities. Petitioner alleged that she believed that McColgan discharged her in retaliation for her political support of Thomas and that he thereby violated her right under MCL 15.403(1)(d) to “[e]ngage in other political activities on behalf of a candidate.”
McColgan maintained that he had the statutory authority under MCL 49.31 to appoint his own legal office manager. The ALJ expressed understanding of McColgan's reluctance to retain petitioner as legal office manager and that McColgan wanted “his own person in this job because of the close working relationship of the two jobs” but found that the legal office manager is not a position subject to the appointment authority of the prosecutor under MCL 49.31 and that the political freedom act prevented petitioner's discharge because of her political activities on behalf of Thomas. The ALJ found that petitioner was discharged because she had engaged in political activities on behalf of Thomas and that her discharge was in violation of the political freedom act. Because the ALJ concluded that the prosecutors’ appointment/tenure statute did not apply to the position of legal office manager, the ALJ did not address the interplay between the prosecutors’ appointment/tenure statute and the political freedom act.
The circuit court concluded that the political freedom act did not alter the appointment and discharge authority granted to prosecutors by the prosecutors’ appointment/tenure statute. The circuit court stated in its written opinion:
The parties concede that Public Act 169 [the political freedom act] restores to public employees the rights granted all citizens under the First Amendment. Essentially[,] a public employee is protected from disciplinary action resulting from his or her participation in the political process on off-duty time. However, there is nothing contained within Public Act 169 that inoculates a public employee who is otherwise subject to patronage dismissal pursuant to MCL 49.31-35. In other words, Public Act 169 does not divest a newly elected prosecutor from appointing a person loyal to him to positions enumerated in the [prosecutors’ appointment/tenure] statute simply because that employee has been exercising her rights to support the opponent of the new prosecutor.
* * *
[I]f the facts of this case had been different, and Bauer had been discharged during Thomas’ term for exercising her rights under the [political freedom act], perhaps the result would be different. However, the successor prosecutor is not precluded from hiring key people for his office whose political affiliation is pertinent to the effective performance of their duties.
Petitioner claimed a violation of MCL 15.403(1)(d), which provides that an employee of a political subdivision may “[e]ngage in other political activities on behalf of a candidate.” “The political freedom act allows a state employee to engage in partisan political activity except ‘during those hours when that person is being compensated for the performance of that person's duties as a public employee.’ ” Mich. State AFL-CIO v. Civil Serv. Comm., 455 Mich. 720, 734, 566 N.W.2d 258 (1997), quoting MCL 15.404 (emphasis omitted). The act prohibits the government, as employer, from regulating the off-duty political activity of its employees unless such activity interferes with job performance. See Council No. 11, 408 Mich. 385, 292 N.W.2d 442; Int'l Union v. Central Mich. Univ. Trustees, 295 Mich. App. 486, 499-501, 815 N.W.2d 132 (2012). Petitioner correctly contends that it would be a violation of the political freedom act for a prosecutor to regulate an appointed employee's off-duty political activity that did not affect job performance and then discharge the employee for violating the regulation.
In this case, however, petitioner did not allege that she was prohibited from engaging in political activity on behalf of a candidate by regulation or otherwise. Indeed, she admitted that she engaged in political activity on behalf of Thomas without restriction. It therefore seems that MCL 15.403(1)(d) is not implicated by petitioner's factual allegations. Petitioner asserts that MCL 15.403(1)(d) prohibits “retaliation” for engaging in political activity, but, as petitioner recognizes, the statute contains no such language. Petitioner argues that the political freedom act is “meant to provide far more than ․ is made clear by its remedies” and that the act “is intended to protect public employees from being discharged in retaliation for engaging in off-duty political activity.” She asserts that “this very conclusion was unabashedly expressed ․ in [Council No. 11],” in which our “Supreme Court affirmed a Court of Appeals judgment finding that an employee subject to PA 169 was improperly discharged for engaging in political activity.”
However, in Council No. 11, the employee was discharged for violating a Civil Service Commission rule that the Court found to be invalid because it conflicted with the political freedom act by regulating off-duty political activity. Council No. 11, 408 Mich. at 392, 408-409, 292 N.W.2d 442. Contrary to petitioner's suggestion, the employee in Council No. 11 was not discharged in retaliation for engaging in permissible political activity. In the present case, respondents did not regulate or prohibit petitioner's political activity.
Indeed, at issue in the present case is the narrow issue of whether the political freedom act impacts the prosecutor's statutory authority to appoint employees who shall serve at the prosecutor's pleasure. The parties have cited no Michigan appellate decisions that address this issue.
“The primary goal of statutory interpretation is to give effect to the intent of the Legislature.” Briggs Tax Serv., L.L.C., 485 Mich. at 76, 780 N.W.2d 753. “If two statutes conflict, then the specific prevails as an exception to the general.” In re Forfeiture of Chevrolet Blazer, 183 Mich. App. 182, 184, 454 N.W.2d 201 (1990). “However, if two statutes lend themselves to a construction which harmonizes their meanings and avoids conflict, that construction should control.” Id.
The political freedom act was enacted to permit civil service employees and employees of political subdivisions of the state to engage in certain political activities. Council No. 11, American Federation of State Employees v. Civil Serv. Comm., 87 Mich. App. 420, 426, 274 N.W.2d 804 (1978). The act specifies in detail the permitted activities a public employee may engage in. MCL 15.402; MCL 15.403. However, even the permitted activities may not be actively engaged in during those hours that the person is being compensated for the performance of his or her duties as a public employee. MCL 15.404. Public employers may not regulate the off-duty political activity of their employees in a way that preemptively conflicts with the act, although the employer may regulate the off-duty political activities of public employees when those activities interfere with job performance. Mich. State AFL-CIO, 455 Mich. at 733, 566 N.W.2d 258; Central Mich. Univ. Trustees, 295 Mich. App. at 500-501, 815 N.W.2d 132. There is no private cause of action for enforcement of the act, Forster v. Delton Sch. Dist., 176 Mich. App. 582, 586, 440 N.W.2d 421 (1989), but there is a statutory procedure for complaints by employees of state political subdivisions for violations of their rights under the act. MCL 15.406(1). Remedies provided by the act include the issuance of back pay, reinstatement of employment and all work-related benefits, and attorney fees. MCL 15.406(1)(a) to (d).
The prosecutors’ appointment/tenure statute authorizes the appointment by the county prosecuting attorney of “as many assistant prosecuting attorneys as said board of supervisors shall deem necessary,” and “authorize[s] the appointment by said prosecuting attorney, of such investigating officers, clerks, stenographers and other clerical employees as said board of supervisors shall deem necessary.” MCL 49.31. “Said assistant prosecuting attorneys and other employees appointed by said prosecuting attorney under this act shall hold office during the pleasure of the prosecuting attorney.” MCL 49.35.
In reading the two statutes together, there is no provision in the political freedom act that restricts the prosecutor's statutory authority under the prosecutors’ appointment/tenure statute. By enacting the political freedom act, the Legislature permitted civil service employees and employees of political subdivisions of the state to engage in certain political activities. In the prosecutors’ appointment/tenure statute, the Legislature specifically endowed the prosecutor with the authority to appoint, MCL 49.31, and the power to remove appointed employees at will, MCL 49.35. There is nothing contained within the political freedom act that divests a newly elected prosecutor of this authority. The act has no language applicable to the prosecutor's appointment authority. And as respondents observe, petitioner's interpretation of the political freedom act would lead to the “absurd result that every newly elected official would be bound to reappoint his predecessor[’]s appointees, if they engaged in political activity in support of his predecessor. No elected official could terminate an appointee who was politically active in support of a political opponent.” The circuit court properly concluded that the political freedom act is not in conflict with the prosecutors’ appointment/tenure statute and that McColgan's appointment of a legal office manager did not violate petitioner's rights under the political freedom act.
VI. COLLATERAL ESTOPPEL
Finally, petitioner argues that the circuit court committed error requiring reversal by concluding that the doctrine of collateral estoppel barred consideration of the MOU. However, because petitioner's application for leave to appeal did not raise this argument, it is not properly before this Court. See Bauer v. Saginaw Co., unpublished order of the Court of Appeals, entered December 14, 2018 (Docket No. 344050) (stating that this Court limited petitioner's appeal to “the issues raised in the application and supporting brief”). We therefore decline to address it.
This case presents a clash of two statutes.
The prosecutor's appointment/tenure statute, MCL 49.31 et seq., enacted in 1925, vests an elected prosecutor with robust powers to make employment decisions. The political freedom act, MCL 15.401 et seq., enacted in 1976, broadly protects the right of public-sector employees to engage in political activity without fear of retribution. The majority finds that the statutes are fundamentally incompatible and holds that the political freedom act must yield. In my view, the two statutes may be reconciled in a manner that gives force and effect to both.
The material facts are simple and straightforward. In 1989, Saginaw County's then prosecuting attorney, Michael Thomas, hired petitioner Beth Bauer as his legal office manager. Bauer and other clerical employees were members of the United Auto Workers. The terms and conditions of their employment were covered by a collective-bargaining agreement (CBA). A contract addition to the 2008 CBA provided that Bauer's job as legal office manager was a just-cause employment position for as long as she held it.
In 2012, John McColgan defeated Thomas and became the new prosecutor for Saginaw County. McColgan fired Bauer. The notice of her discharge stated: “ ‘[s]ervices no longer needed. Are an at-will employee under state statute.’ ” Bauer v. Saginaw Co., 641 F. Appx. 510, 513 (C.A. 6, 2016) (brackets in original).
Bauer brought an action in the United States District Court for the Eastern District of Michigan raising federal and state-law claims; that case did not survive summary judgment. See id. She also filed an administrative complaint in the Michigan Administrative Hearing System asserting that she was discharged in violation of the political freedom act. Respondents McColgan and Saginaw County defended against the action, asserting that McColgan had the authority to fire Bauer pursuant to § 5 of the prosecutor's appointment/tenure statute, MCL 49.35. An administrative-law judge (ALJ) found that Bauer held a just-cause position and that “[she] was discharged because of her political activities on behalf of former Prosecuting Attorney Thomas.” The discharge violated the political freedom act, the ALJ ruled. The prosecutor's appointment/tenure statute did not apply, the ALJ determined, because Bauer was hired by Saginaw County and not by Thomas.
Respondents sought review in the circuit court, which reversed the decision of the ALJ. We granted leave to appeal. Bauer v. Saginaw Co., unpublished order of the Court of Appeals, entered December 14, 2018 (Docket No. 344050).
The political freedom act protects the right of public employees to engage in political activities outside the workplace. It provides that an employee of a political subdivision of the state may “[e]ngage in ․ political activities on behalf of a candidate or issue in connection with partisan or nonpartisan elections.” MCL 15.403(1)(d). The act also includes a remedy provision, as follows:
(1) An employee of a political subdivision of this state whose rights under this act are violated or who is subjected to any of the actions prohibited by section 5 may make a complaint to that effect with the department of labor. The department shall hold a hearing to determine whether a violation has occurred. If a violation has occurred, the department shall so state on the record and may order any of the following:
(a) Issuance of back pay.
(b) Reinstatement as an employee.
(c) Attorney fees.
(d) Reinstatement of all work-related benefits, rights or privileges which, but for the violation by the employer, would have been accrued by the employee. [MCL 15.406.]
The prosecutor's appointment/tenure statute states that “assistant prosecuting attorneys and other employees appointed by said prosecuting attorney ․ shall hold office during the pleasure of the prosecuting attorney.” MCL 49.35. The majority holds that Bauer is an employee subject to the prosecutor's appointment/tenure statute because the legal manager position falls within the scope of MCL 49.31:
In each county of the state of Michigan, the board of supervisors of such counties, at their regular annual meeting, may, by resolution authorize the appointment by the prosecuting attorney of said county of as many assistant prosecuting attorneys as said board of supervisors shall deem necessary, and shall in addition authorize the appointment by said prosecuting attorney, of such investigating officers, clerks, stenographers and other clerical employes [sic] as said board of supervisors shall deem necessary.
I concur with the majority's conclusion that Bauer was a coemployee of the prosecutor and the county; this conclusion is compelled by Council No. 11, AFSCME v. Civil Serv. Comm., 408 Mich. 385, 292 N.W.2d 442 (1980).
The majority further holds that the political freedom act does not restrict the prosecutor's statutory authority to fire at will. I cannot agree with this proposition. In my view, the two statutes can and must be harmonized. Alternatively, I would hold that the more recently enacted of the two—the political freedom act—controls.
The controversy before us is narrower than the majority opinion apprehends, and as a starting point the question presented must be correctly identified. The majority declares that “the Legislature specifically endowed the prosecutor with the authority to appoint ․ and the power to remove appointed employees at will ․” True enough. The majority then homes in on the prosecutor's appointment power, proclaiming that the political freedom act “has no language applicable to the prosecutor's appointment authority.” Bauer does not contest the prosecutor's power to hire whomever the prosecutor selects. Rather, Bauer asserts that the political freedom act circumscribes the prosecutor's power to fire. The prosecutor's hiring powers are not at issue here, and by raising them the majority muddles the legal analysis. McColgan did not hire Bauer, he fired her. The question is whether that act was wrongful.
The majority addresses this issue only superficially, declaring that “[i]n reading the two statutes together, there is no provision in the political freedom act that restricts the prosecutor's statutory authority under the prosecutors’ appointment/tenure statute.” This is an obvious and accurate observation, but neither relevant nor helpful. Statutes often appear to conflict precisely because the newer fails to reference the older, and yet both seem to cover precisely the same ground. See, e.g., Apsey v. Mem. Hosp., 477 Mich. 120, 124, 730 N.W.2d 695 (2007) (holding in a case that involved two statutes addressing the notarization of out-of-state affidavits—one passed in 1963 and the other in 2003—that the Legislature intended for the newer statute to serve as “an alternative” for authenticating out-of-state affidavits).
The majority's simplistic approach would reduce the construction of conflicting statutory texts to judicial selection of the statute that should control based solely on the judge's assessment of which expresses better policy. And that is precisely what the majority does here, concluding that enforcement of the political freedom act would “lead to the ‘absurd result that every newly elected official would be bound to reappoint his predecessor[’]s appointees, if they engaged in political activity in support of his predecessor.’ ” Again, this case does not involve “appointment;” Bauer's claim rests entirely on her termination. More to the point, I find nothing “absurd” in the proposition that prosecuting attorneys, like every other employer, must follow the law.
Properly framed, Bauer's case asks us to decide whether despite the powers granted by the prosecutors’ appointment/tenure statute, respondents’ decision to fire Bauer was nonetheless wrongful because it contravened the political freedom act. A long line of cases governing statutory interpretation guides us to the answer: it was.
The majority never engages with this line of caselaw. Instead, it sidesteps the task of statutory reconciliation by asserting that regardless of whether Bauer was terminated because of her political activity, she lacks any “private cause of action for enforcement of the act.” But Bauer did not file a case implicating a “private cause of action”; she brought an administrative claim under MCL 15.406. That statute specifically permits aggrieved public employees “whose rights ․ are violated” to complain to the Department of Labor (now the Michigan Department of Labor and Economic Opportunity (DLEO)), MCL 15.406(1), which is precisely what Bauer did. The same statutory section vests the department with the authority to “hold a hearing to determine whether a violation has occurred.” Id. If the department finds a violation, it is empowered to award back pay, reinstatement, and attorney fees—exactly what occurred here.1 Once again, the majority took a detour leading to a dead end.
Which brings us to the majority's resolution of what it describes as “the interplay between the prosecutors’ appointment/tenure statute and the political freedom act.” Aside from pointing out that no language in the political freedom act applies to prosecutors, the majority offers nothing other than that enforcement of the political freedom act would be “absurd.” Yet there is a clear pathway allowing for the accommodation of both statutes. In my view, the prosecutors’ appointment/tenure statute holds firm, but it must be qualified by a prohibition on terminating just-cause employees based solely on their protected political activities.
My analysis governing the construction of the “interplay” between two apparently conflicting statutes rests on well-established interpretive principles. “[W]hen two statutes are capable of co-existence, it is the duty of the courts to regard each as effective.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 155, 96 S. Ct. 1989, 48 L. Ed. 2d 540 (1976) (cleaned up).2 Our Supreme Court adheres to the same axiom. “It is a fundamental rule of statutory construction that apparently conflicting statutes should be construed, if possible, to give each full force and effect.” In re Midland Publishing Co., Inc., 420 Mich. 148, 163, 362 N.W.2d 580 (1984) (cleaned up).3 Recently our Supreme Court echoed the same sentiment, encouraging courts to “construe statutes, claimed to be in conflict, harmoniously,” and to avoid a construction that impliedly eliminates the effect of one statute in favor of another. Int'l Business Machines Corp. v. Dep't of Treasury, 496 Mich. 642, 651-652, 852 N.W.2d 865 (2014) (quotation marks and citation omitted).
Our state's jurisprudence offers many examples of this approach. In Rathbun v. Michigan, 284 Mich. 521, 280 N.W. 35 (1938), the dueling statutes involved gas, oil, and mineral rights. See id. at 530-531, 280 N.W. 35. The plaintiff claimed that she had obtained absolute title in fee to land deeded to her by her homesteader father-in-law and that her absolute title included the mineral rights. Id. at 529-530, 280 N.W. 35. In support of this argument, she invoked an 1893 tax statute which she contended “provided for the conveyance by the State of an absolute title in fee to the homesteader ․ without any severance of the mineral rights[.]” Id. at 529-530, 280 N.W. 35. The state insisted that when it provided the homesteader with his certificate and deed, it had reserved the mineral rights pursuant to a 1909 statute empowering the state “to sever the absolute fee in the surface rights from the absolute fee in the mineral rights․” Id. at 536, 280 N.W. 35. The Supreme Court observed that the newer statute was passed to protect and conserve the state's natural resources and was “designed to correct existing evils, to remedy a deplorable situation which had grown out of private exploitation of the natural resources of the State.” Id. at 537, 280 N.W. 35.
The Supreme Court rejected the plaintiff's argument that the two statutes hopelessly conflicted, despite that the 1893 tax statute clearly stated that a homesteader deed “shall convey an absolute title to the lands sold.” Id. at 533, 280 N.W. 35. “The statutory provision that the State convey to a homesteader an absolute title in fee did not require that the State convey ․ an absolute title in fee to the mineral rights, as well as to the surface rights of the lands in question,” the Supreme Court explained. Id. at 536, 280 N.W. 35. Rather, the Court construed the two statutes together, seeking a way of harmonizing them. It interpreted the subsequently enacted statute as indicating “a growth of general public policy with regard to such disposition and conservation of these resources of the State” and determined that it did not “infringe” on any other statute. Id. at 545-546, 280 N.W. 35. The Court reasoned:
It is a well-established rule that in the construction of a particular statute, or in the interpretation of its provisions, all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law, although they were enacted at different times, and contain no reference to one another. The endeavor should be made, by tracing the history of legislation on the subject, to ascertain the uniform and consistent purpose of the legislature, or to discover how the policy of the legislature with reference to the subject-matter has been changed or modified from time to time. In other words, in determining the meaning of a particular statute, resort may be had to the established policy of the legislature as disclosed by a general course of legislation. With this purpose in view therefore it is proper to consider, not only acts passed at the same session of the legislature, but also acts passed at prior and subsequent sessions. [Id. at 543-544, 280 N.W. 35 (cleaned up).]
Our Supreme Court recently reembraced the Rathbun approach in Int'l Business Machines Corp., 496 Mich. at 652-653, 852 N.W.2d 865.4 See also Wayne Co. Prosecutor v. Dep't of Corrections, 451 Mich. 569, 577, 548 N.W.2d 900 (1996) (“The guiding principle is, to be sure, that we are obliged to determine the will of the Legislature; but where the intent of the Legislature is claimed to be unclear, it is our duty to proceed on the assumption that the Legislature desired both statutes to continue in effect unless it manifestly appears that such a view is not reasonably plausible.”). Other cases featuring this reconciliation approach include Apsey, 477 Mich. 120, 730 N.W.2d 695, and Stenzel v. Best Buy Co., Inc., 503 Mich. 199, 931 N.W.2d 554 (2019) (harmonizing a statute and a court rule).
Similar to Rathbun, the two apparently conflicting statutes at issue in this case were passed at different times and were intended to address different concerns. We must not lose sight of the fact that the newer statute, here and in Rathbun, was “designed to correct existing evils.” Rathbun, 284 Mich. at 537, 280 N.W. 35. The legislative purpose clearly expressed in the political freedom act is to safeguard the rights of people like Beth Bauer to engage in political activity without fear of losing their jobs. And the political freedom act is but one of several acts protecting the civil rights of public-sector employees that postdate the enactment of the prosecutors’ appointment/tenure statute.
In 1976, our Legislature passed two civil rights statutes applicable to the employees of political subdivisions, including Bauer: the Civil Rights Act (CRA), MCL 37.2101 et seq., and the Michigan Handicappers’ Civil Rights Act (amended by 1998 PA 20 and renamed the Persons with Disabilities Civil Rights Act (PWDCRA)), MCL 37.1101 et seq. In 1980, the Legislature enacted the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. All three of these statutes extend protection against wrongful termination to employees of political subdivisions of the state. See In re Bradley Estate, 494 Mich. 367, 393 n. 60, 835 N.W.2d 545 (2013) (observing that the PWDCRA defines “ ‘employer’ to expressly include state actors” in MCL 37.1201(b)); Anzaldua v. Band, 457 Mich. 530, 533-534, 578 N.W.2d 306 (1998) (explaining that “the state and its political subdivisions are to be considered employers” for the purposes of the WPA); Manning v. Hazel Park, 202 Mich. App. 685, 699, 509 N.W.2d 874 (1993) (“Concerning the sex and age discrimination claims, defendants do not have a governmental immunity defense because the [CRA] specifically includes state and political subdivisions and their agents as employers covered by the act.”).
Each of these three acts permits employees to sue if discharged from employment on the basis of a protected ground. The CRA prohibits an employer from “discharg[ing]” an employee “because of religion, race, color, national origin, age, sex, height, weight, or marital status.” MCL 37.2202(1)(a). The PWDCRA prohibits an employer from “[d]ischarg[ing] ․ an individual ․ because of a disability or genetic information that is unrelated to the individual's ability to perform the duties of a particular job or position.” MCL 37.1202(1)(b). The WPA provides that “[a]n employer shall not discharge” an employee because the employee reports “a violation or a suspected violation of a law or regulation․” MCL 15.362.
The political freedom act extends similar protections by prohibiting employers from penalizing employees who exercise their right to participate in the political process. It qualifies as reform legislation intended to remedy a problem the Legislature evidently perceived. See Council No. 11, 408 Mich. 385, 292 N.W.2d 442 (providing a more in-depth discussion of the act). I offer the civil rights statutes as comparators to the political freedom act because they help to demonstrate that the two statutes at issue in this case can be reconciled in a manner that honors both.
The Supreme Court's holding in Mack v. Detroit, 467 Mich. 186, 649 N.W.2d 47 (2002), is also instructive. The plaintiff in Mack brought a sexual orientation discrimination case against the city of Detroit, invoking the declaration of rights set forth in the city charter. Id. at 189, 649 N.W.2d 47. The Supreme Court held that the governmental tort liability act (GTLA), MCL 691.1407 et seq., precluded her claim. Mack, 467 Mich. at 189-190, 649 N.W.2d 47. The Supreme Court pointed out, however, that “there are other areas outside the GTLA where the Legislature has allowed specific actions against the government to stand, such as the [CRA].” Id. at 195, 649 N.W.2d 47. The CRA, however, did not encompass the plaintiff's sexual orientation discrimination claim. Id. at 196, 649 N.W.2d 47. In enacting the political freedom act, the Legislature also “allowed specific actions against the government” to go forward, id. at 195, 649 N.W.2d 47, as the act defines the individuals covered by it to include “an employee of a political subdivision of the state who is not an elected official.” MCL 15.401. The act specifically permits public employees to engage in political activity and empowers them to bring a claim for any infringement of that right. By defining those covered so capaciously, the Legislature obviously intended that public-sector employees in the executive branch would receive the law's benefit.
Despite that the prosecutors’ appointment/tenure statute affords a county prosecutor seemingly unbridled authority to fire an employee covered by the statute, it is beyond comprehension that a prosecutor could fire an employee based on race, sex, disability status, or because the employee engaged in protected whistleblower activity. Although the prosecutor's powers are broad, they do not permit a prosecutor to knowingly and deliberately violate these other laws. Similarly, the prosecutor's powers should not be construed so broadly as to excuse a violation of the political freedom act. Had the Legislature intended to immunize the prosecutor (or any other public official) from the reach of the civil rights statutes, the whistleblower act, or the political freedom act, it surely could have done so.
Interpreting the prosecutors’ appointment/tenure statute in a manner that preserves its essence permits the survival of both statutes and comports with our duty to reconcile rather than displace. In my view, the political freedom act merely tempers the reach of the prosecutor's discretionary authority. Analogously, the Supreme Court reached the same conclusion in Council No. 11, 408 Mich. at 408-409, 292 N.W.2d 442, holding that when it came to regulating employees’ political activity, the power of the Civil Service Commission to make rules and regulations governing the civil service had to give way to the act.
But if the majority is correct and the statutes are truly irreconcilable, the majority has chosen the wrong one to enforce. Where two laws conflict and cannot be harmonized, the general rule is that the last one enacted controls. Metro. Life Ins. Co. v. Stoll, 276 Mich. 637, 641, 268 N.W. 763 (1936). See also Jackson v. Mich. Corrections Comm., 313 Mich. 352, 357, 21 N.W.2d 159 (1946) (cleaned up) (“The rule as stated in the foregoing and other decisions involving the question recognizes that if the provisions of a later statute are so at variance with those of an earlier act, or a part thereof, that both cannot be given effect then the later enactment controls and there is a repeal by implication.”).
The prosecutors’ appointment/tenure statute indisputably afforded McColgan with the authority to hire whomever he wanted as his legal office manager. But the political freedom act prohibited him from terminating Bauer's employment in his office on the sole ground that she had worked on behalf of his competitor for the office. It bears emphasis that Bauer was a just-cause employee. Had McColgan fired her for a just cause unrelated to her political activities (or a protected characteristic), his decision to do so would be beyond question. And in most prosecutor's offices, it is likely that the employees are at-will (as was everyone in McColgan's office other than Bauer), terminable for no stated reason at all.
I would reverse the circuit court and remand to the DLEO for continuation of the administrative proceedings.
1. Bauer v. Saginaw Co., unpublished order of the Court of Appeals, entered December 14, 2018 (Docket No. 344050).
2. An employee who believes his or her statutory rights under the political freedom act were violated may file a complaint in the MAHS, which is within the Department of Labor and Economic Opportunity (successor to the Department of Labor). See MCL 15.406(1). If a hearing officer determines that a violation occurred, the officer may order job reinstatement, back pay, reinstatement of work-related benefits, and attorney fees. MCL 15.406(1)(a) through (d).
3. As enacted, MCL 49.31 used the spelling “employes.” See 1948 CL 49.31; 1925 PA 329. We use the spelling “employees” throughout when quoting the statute without making further note of this change.
4. According to the job description prepared by petitioner in 2000 for the position of legal office manager, the job duties included: supervising the day-to-day operations of the office; purchasing and maintaining office equipment and supplies; developing and administering the prosecutor's $3.7 million budget; maintaining and inputting payroll; having daily contact with courts, the public, and law enforcement agencies; processing and paying bills; and administering and directing extraditions. The job description also indicated that the legal office manager hired, fired, disciplined, and directed support staff and assisted 23 attorneys with maintaining and preparing files, warrants, and other legal documents. According to Thomas, petitioner's job was to manage the office to the extent of the duties delegated to her. Thomas stated, “I want to be clear that she managed the office and the functions of the office with respect to the public, our public relationship with the Courts, responding to correspondence, kept the clerical staff properly trained and present to do their work. But [she] did not manage or supervise the attorneys in the office.” Petitioner did not have authority to hire or fire staff.Petitioner testified with respect to her job duties that Thomas and the chief assistant prosecutor were her supervisors and that she assisted the assistant prosecutors with clerical matters. She would ensure that employees showed up for work and that they were performing the functions of their jobs. If an employee was late, she would give the employee a verbal warning, but “[a]nything more strict than that, then I would talk to Mr. Thomas about that and he would talk to them.” She said that she was not in charge of the budget, but that she would have input on office supplies, witness fees, and extraditions. With respect to payroll, she would “keep the time records of who was there, who wasn't there, whether they used vacation time or not” and input the data into the system. She followed rules and guidelines that were in place for her duties.
1. Because respondents did not challenge the form of Bauer's administrative action, the parties did not brief this issue. I suggest that although Bauer did not pursue one, a private cause of action does exist. “It is well settled ․ that an employer is not free to discharge an employee at will when the reason for the discharge contravenes public policy.” McNeil v. Charlevoix Co., 484 Mich. 69, 79, 772 N.W.2d 18 (2009). In Suchodolski v. Mich. Consol. Gas Co., 412 Mich. 692, 695, 316 N.W.2d 710 (1982), our Supreme Court pointed out that “some grounds for discharging an employee are so contrary to public policy as to be actionable. Most often these proscriptions are found in explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty.” In my view, a violation of the political freedom act comfortably fits within this realm.
2. This opinion uses the new parenthetical “cleaned up” to improve readability without altering the substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as brackets, alterations, internal quotation marks, and unimportant citations have been omitted from the quotation. See Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143 (2017).
3. In re Midland Publishing Co., 420 Mich. at 163, 362 N.W.2d 580, further provides, “It is also well established that a later-enacted specific statute operates as an exception or a qualification to a more general prior statute covering the same subject matter and that, if there is an irreconcilable conflict between two statutes, the later-enacted one will control.” This approach provides an alternate ground for reversing the circuit court.
4. The dissent in Int'l Business Machines Corp. also cited Rathbun approvingly, but maintained that the two tax statutes under consideration could not be reconciled. Int'l Business Machines Corp., 496 Mich. at 672, 852 N.W.2d 865 (McCormack, J., dissenting).
O'Brien, P.J., concurred with Jansen, J.
Response sent, thank you
Docket No: No. 344050
Decided: April 16, 2020
Court: Court of Appeals of Michigan.
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