Krajewski v. City of Royal Oak , 126 Mich. App. 695 ( 1983 )

126 Mich. App. 695 (1983) 337 N.W.2d 635

KRAJEWSKI
v.
CITY OF ROYAL OAK

Docket No. 62733.

Michigan Court of Appeals.

Decided June 22, 1983.

Dawnn Gruenberg, for plaintiff.

Teresa E. Schafer, City Attorney, and Riley & Roumell (by Craig W. Lange and Gerald A. Eggemeyer), for defendant.

Before: MacKENZIE, P.J., and BRONSON and HOOD, JJ.

PER CURIAM.

This case arises under the veterans' preference act, MCL 35.401 et seq.; MSA 4.1221 et seq. After a hearing pursuant to MCL 35.402; MSA 4.1222, plaintiff was discharged from his job as a laborer for "official misconduct". Plaintiff sought review in circuit court of this decision by means of a petition for a writ of superintending control. The circuit court held, in the alternative, that plaintiff could not commit "official misconduct" because he was not an "official" and that plaintiff's actions were insufficiently related to his job to constitute "official misconduct". An order of superintending control requiring that plaintiff be reinstated with back pay was issued. In denying defendant's motion for rehearing, the court stated that the misconduct at issue was insufficiently serious in light of plaintiff's employment record to justify discharge. Defendant appeals by right.

MCL 35.402; MSA 4.1222 provides in part:

"No veteran or other soldier, sailor, marine, nurse or member of women's auxiliaries as indicated in the preceding section holding an office or employment in any public department or public works of the state or any county, city or township or village of the state, except heads of departments, members of commissions, and boards and heads of institutions appointed by the governor and officers appointed directly by the mayor of a city under the provisions of a charter, and first deputies of such heads of departments, heads of institutions and officers, shall be removed or suspended, or shall, without his consent, be transferred from such office or employment except for official misconduct, habitual, serious or willful neglect in the performance of duty, extortion, conviction of intoxication, conviction of felony, or incompetency * * *."

Words and phrases which have acquired a peculiar and appropriate technical meaning in the law are construed according to that meaning when they appear in statutes. MCL 8.3a; MSA 2.212(1). See also Pitcher v People, 16 Mich. 142, 147 (1867); People v Covelesky, 217 Mich. 90, 100; 185 N.W. 770 (1921); Equitable Trust Co v Milton Realty Co, 261 Mich. 571, 575; 246 N.W. 500 (1933); Thomas v Dep't of State Highways, 398 Mich. 1, 9-10; 247 NW2d 530 (1976). "Official misconduct" is defined in Black's Law Dictionary (4th ed), p 1236, as "[a]ny unlawful behavior by a public officer in relation to the duties of his office, willful in its character, including any willful or corrupt failure, refusal, or neglect of an officer to perform any duty enjoined on him by law". (Emphasis added.) See also Carroll v City Comm of Grand Rapids, 265 Mich. 51, 58; 251 N.W. 381 (1933) wherein the Court, in defining "official misconduct", stated:

"It must be something which in a material way affects the rights and interests of the public. State ex rel Hart v Common Council of Duluth, 53 Minn 238; 55 N.W. 118 (1893).

"``Where the removal is to be for official misconduct or for misfeasance or mal-administration in office, the misconduct which shall warrant a removal of the officer must be such as affects his performance of his duties as an officer and not such only as affects his character as a private individual.' Mechem, Public Offices and Officers, § 457.

"See, also, Throop on Public Officers, § 366; and 22 RCL 571, where it is said:

"``It must be a cause relating to and affecting the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. The eccentric manner of an officer, his having an exaggerated notion of his own importance, indulgence in coarse language or talking loudly on the streets, however offensive, will not warrant any interference with his incumbency.'" (Emphasis in original.)

The foregoing definitions show that "official misconduct" has a technical meaning in the law which restricts its application to the conduct of "public officers".

The record shows that plaintiff was a mere sanitation worker, essentially a garbage collector. Plaintiff was not a "public officer" under any definition of that term. Compare People ex rel Throop v Langdon, 40 Mich. 673, 682-683 (1879); Attorney General ex rel Moreland v Common Council of Detroit, 112 Mich. 145, 152-153; 70 N.W. 450 (1897); Marxer v Saginaw, 270 Mich. 256, 261-262; 258 N.W. 627 (1935); People v Freedland, 308 Mich. 449, 456; 14 NW2d 62 (1944); Solomon v Highland Park Civil Service Comm, 64 Mich. App. 433, 438; 236 NW2d 94 (1975). Because plaintiff was not a "public officer", the circuit court did not err by holding that plaintiff could not commit "official misconduct".

Defendant's arguments to the contrary are unpersuasive. Defendant claims that a construction of "official misconduct" which restricts it to behavior by "public officers" would render the inclusion of "official misconduct" in the statute unnecessary because Const 1963, art 5, § 10, also allows public officers to be removed for official misconduct. We cannot see how a claim that the construction we give to a statute would render it consistent with the constitution is a valid objection to that construction. Defendant points out that many officers are expressly excluded from the effect of the statute. However, not every public officer is excluded, and defendant's argument does not explain the statute's express reference to officers. Defendant claims that the statute expressly states that employees may be discharged for "official misconduct", and that therefore we ought to construe "official misconduct" so that employees may be guilty of it. However, what the statute actually states is that officers and employees may be discharged for a number of reasons, including "official misconduct". We cannot see why every reason for discharge stated in the statute must necessarily be applicable to both officers and employees. Defendant has not pointed to any principle of statutory construction requiring such a result, and we have been unable to find any.

Defendant points to a statement in Sullivan v State Board of Tax Administration, 290 Mich. 664; 288 N.W. 300 (1939), that an employee subject to the veterans' preference act might be discharged for official misconduct, habitual, serious, or wilful neglect in the performance of duty, extortion, conviction of intoxication, conviction of a felony, or incompetence. This statement is entitled to little weight because it is dicta and a mere paraphrase of the statute. It does not show that the Sullivan Court gave any consideration to the problem presented here.

We note that employees subject to the veterans' preference act who commit misconduct relating to the duties of their employment may be discharged for serious or wilful neglect in the performance of duty; however, no such neglect was charged or found here.

In view of the foregoing, we need not address the other issues raised by defendant.

Affirmed.

HOOD, J., concurs in the result only.