Robinson v. Department of State , 20 Mich. App. 231 ( 1969 )

20 Mich. App. 231 (1969) 173 N.W.2d 799

ROBINSON
v.
DEPARTMENT OF STATE

Docket No. 6,776.

Michigan Court of Appeals.

Decided November 25, 1969.

Charles Rubinoff and Carroll D. Little, for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Russell A. Searl. Charles D. Hackney and Wallace K. Sagendorph, Assistant Attorneys General, for defendant.

Before: LESINSKI, C.J., and J.H. GILLIS and DANHOF, JJ.

DANHOF, J.

Plaintiff was suspended indefinitely from his position as a driving improvement examiner for the Michigan department of state on March 31, 1965, pending the outcome of an investigation into alleged fraudulent obtaining of a driver's license or temporary permit. On April 14, 1965, plaintiff was indicted in recorder's court on related criminal charges, but the case was eventually dismissed on November 2, 1967. Subsequently, on November 16, 1967, plaintiff's suspension was changed to a dismissal. During this time the suspension had not been appealed. A hearing was held on the dismissal and in January, 1968, the hearing officer determined that plaintiff had not been proven guilty of the charges against him and ordered cancellation of the suspension, pending the criminal investigation, and the dismissal and substituted a disciplinary suspension without pay from March 31, 1965 to October 1, 1965. The opinion read in part:

"However, the Hearing Officer is of the opinion that Mr. Robinson is personally responsible for placing himself in a questionable position by his unauthorized personal association and involvement outside his official duties with persons making driver license applications to the Detroit Police. This conduct on the part of Andrew Robinson cannot go unnoticed and must never be repeated. The employee is not guilty of malfeasance. He is guilty of a breach of the standards of conduct, judgment and conflict of interest that apply to any person in an official capacity as a state officer.

"The Hearing Officer does not believe under all the circumstances that the employee has so compromised his usefulness to the State of Michigan by personal and culpable lack of due care that he ought not to be returned at all to a position in the merit system regulated by the Civil Service Commission in the public interest. However, his actual personal and culpable lack of due care in his conduct justified a disciplinary suspension without pay."

The hearing officer ordered the plaintiff's reinstatement with back salary from October 1, 1965, less any earnings during the period.

The department of state appealed to the civil service commission and on July 1, 1968 the commission modified the hearing officer's decision by awarding back pay only from November 3, 1967 to the date plaintiff actually returned to duty, and excepting the period April 16, 1968 to June 27, 1968 during which a hearing was scheduled but postponed because of the illness of plaintiff's counsel. The commission specifically disallowed back pay from March 31, 1965 to November 3, 1967, when plaintiff was under suspension because of the indictment in recorder's court. Plaintiff appealed the civil service decision to the Wayne county circuit court which affirmed the decision of the civil service commission. Plaintiff is now appealing to this Court seeking to have the hearing officer's decision reinstated.

The civil service commission is vested with plenary power in its sphere of authority. It regulates all conditions of employment in the classified service. Const 1963, art 11, § 5; Plec v. Liquor Control Commission (1948), 322 Mich 691. Groehn v. Corporation & Securities Commission (1957), 350 Mich 250.

In Sumeracki v. County of Wayne (1958), 354 Mich 377, it was held that the suspension of county civil service employees while under indictment on felony charges was not rendered illegal because of a subsequent nolle prosequi of the charges. The court said that this was not an acquittal or moral whitewash. The plaintiffs' claims for back salary during the suspension were denied.

Similarly in this case the dismissal of criminal charges against plaintiff did not result in an acquittal or moral whitewash. Rather, the hearing officer later specifically found plaintiff guilty of actual personal and culpable lack of due care in his conduct justifying a disciplinary suspension without pay.

Therefore, this Court holds that the civil service commission acted within its constitutionally-granted power in modifying the hearing officer's order so as to deny back pay to plaintiff during his period of suspension when he was under indictment in the recorder's court.

Additionally, in Jones v. Doonan (1933), 265 Mich 384, the Supreme Court held that a former city policeman who sought reinstatement and back pay had unreasonably delayed in asserting his claim, resulting in his abandonment of it, where he declared his intention of never appearing before the trial board and he took no judicial proceedings for reinstatement for a period of nearly three years.

In the present case plaintiff was under suspension for nearly three years, during which time he did not appeal. It is not in the public interest that officers or employees shall accept illegal suspension or dismissal, remain quiescent under it, and later attempt to mulct the public purse for money not earned. See Jones, supra.

The record shows that co-counsel for the plaintiff had actively participated in representing plaintiff before the hearing officer. There was no allegation that he was incapable of effectively representing plaintiff or unavailable to do so while attorney Charles Rubinoff was incapacitated. Under these circumstances, this Court holds that the civil service commission was acting within its authority when it denied plaintiff back pay during an adjournment requested by his counsel.

Finally, review of the whole record shows that the decision of the civil service commission was authorized by law and was supported by competent, material and substantial evidence as required by Const 1963, art 6, § 28 and the administrative procedure act, CLS 1961, § 24.108 (Stat Ann 1969 Rev § 3.560 [21.8]).^[*]

Affirmed, costs to defendants.

All concurred.

NOTES

[*] Repealed by PA 1969, No 306, effective July 1, 1970, MCLA § 24.201 et seq. (Stat Ann Curr Mat § 3.560[101] et seq.).