Peterson v. Department of Natural Resources

Danhof, P. J.

Defendant, Department of Natural Resources, appeals from a judgment of the Circuit Court of Alpena County reinstating plaintiff as an employee of the department with full back pay and fringe benefits to the date of his dismissal. This judgment reversed a decision by the Civil Service Commission which affirmed the Department of Civil Service hearing officer’s decision sustaining the dismissal of plaintiff.

Plaintiff served as a conservation officer from April 25, 1966, until his dismissal on August 8, 1969. The series of events leading to his dismissal began on January 3, 1969, when plaintiff submitted a game-law prosecution report which was criticized by his superior in a memorandum dated January 8, 1969. Plaintiff objected to the memorandum and in particular to the words: "If you are to be a successful conservation officer you are going to have to be more tolerant and stop feeling that everyone is against you”. Plaintiff requested through his union representative a conference with a view toward having this memorandum removed from his file. The conference was held on March 5, 1969. The record reflects disagreement between the parties as to what occurred. Defendant contends that plaintiff voluntarily offered to consult a psychiatrist for the purpose of establishing his mental fitness. Plaintiff contends that this offer was not voluntary, but rather his only recourse in disproving what he considered to be an attack on his mental stability. After approximately two weeks had elapsed, defendant inquired of plaintiff concerning his announced intention to see a psychiatrist. Plaintiff then filed his first departmental grievance requesting removal of the memorandum from his file and a transfer. Plaintiff then saw a psychiatrist of his own choice on April 2, 1969. A hearing was héld on April 29, 1969, on plaintiff’s first grievance. Plaintiff announced that he had seen a psychiatrist and had a report, but declined to submit it on the advice of counsel. When no decision from this hearing was forthcoming on June 2, 1969, plaintiff filed an appeal with the Department of Civil Service. On June 4, 1969, plaintiff filed his second departmental grievance, complaining of defendant’s failure to answer his first grievance within two working days. On June 13, 1969 defendant issued a decision on grievances 1 and 2 denying the request for removal of the memorandum, tabling the request for a transfer, and ordering plaintiff to be examined by a psychiatrist to be selected by the Department of Civil Service. A psychiatric examination was scheduled and plaintiff was notified on June 23, 1969. Only plaintiff was aware that the psychiatrist selected by the Department of Civil Service was the same Dr. Ali Guner consulted earlier by plaintiff. On June 26, 1969, plaintiff filed an appeal with the Department of Civil Service from defendant’s decision. Plaintiff was examined by Dr. Guner on July 8, 1969, and on July 29, 1969, Dr. Guner reported to defendant concerning this second consultation after plaintiff had signed an information release. In part the report states: "I was inclined to diagnose Mr. Peterson as having personality disorder-paranoid personality. People who suffer from this condition require psychiatric help.”

On August 6, 1969, a meeting was held in Lansing with plaintiff, his union representative, and officers of the Department of Natural Resources in attendance. Plaintiff was advised that in view of Dr. Guner’s report, he could not continue as an armed conservation officer; he was offered a lateral transfer to another position within the department as water safety officer at the same seniority and pay. If he refused the transfer, he would be discharged. The new position would require a move to Lansing. Plaintiff accepted the transfer position on August 7, 1969, but retracted acceptance the following day. A report of separation issued on August 8, 1969. Shortly thereafter, plaintiff filed his third grievance, complaining of his discharge. A hearing was held on August 26, 1969, at which time plaintiff presented, to his superiors for the first time the first psychiatric report of Dr. Guner. Plaintiff was denied reinstatement and back pay, but was given the alternative of a further psychiatric examination which would determine plaintiff’s eventual reinstatement or continued dismissal. Plaintiff chose instead to appeal defendant’s decision to the Department of Civil Service. Before a hearing could be had, plaintiff unilaterally consulted two other psychiatrists of his own choice on three occasions.

On December 9, 1969, a hearing was held before the Department of Civil Service hearing officer, James R. McCormick. Reports of all three psychiatrists were received into evidence at the hearing. Plaintiff’s first two grievances were dismissed; his separation was upheld and back pay and benefits denied. Another psychiatric examination was ordered which, if favorable to plaintiff, would entitle him to reinstatement; terms and conditions for mutual agreement on the selection of a psychiatrist were provided; refusal to submit to such an examination would result in affirmance of dismissal.

On February 2, 1970, plaintiff appealed the hearing officer’s decision to the Civil Service Commission. Full hearing was had and on May 1, 1970, decisional letters were issued by the commission affirming the hearing officer’s decision.

On May 19, 1970, plaintiff filed a claim of appeal in the Circuit Court of Alpena County, predicating jurisdiction on the 1952 Administrative Procedures Act, 1952 PA 197; MCLA 24.101 et seq.; MSA 3.560(21.1) et seq. We note in passing that as of that date, Viculin v Department of Civil Service, 386 Mich 375 (1971), was not yet decided. Likewise as of that date the 1969 Administrative Procedures Act, 1969 PA 306; MCLA 24.201 et seq.; MSA 3.560(101) et seq., had not yet replaced the 1952 act. In view of the confusion present in the law before Viculin, we are of the opinion that the circuit court did not lack jurisdiction to review this matter under the 1952 act. See Viculin, 386 Mich 375, 396 footnote 20.

The judgment of the court below dated March 23,1972, can be quoted as follows:

"It is ordered and adjudged that the Department of Civil Service Commission’s decision affirming the decision of the hearing officer of the department is not supported by competent, material and substantial evidence and it is further ordered and adjudged that the plaintiff, Richard G. Peterson, be immediately reinstated to his original position of Conservation Officer 90 [09] at Harrisville, Michigan, with full back pay and all fringe benefits from the date of his dismissal by the Department of Natural Resources.

"It is further ordered and adjudged that the plaintiff is to be given every opportunity to determine any alleged emotional fitness for the conservation officer’s position if the Department of Natural Resources still desires this alleged question to be ultimately determined, although while any alleged emotional fitness question is being ultimately determined, plaintiff is to be reinstated.”

Per Viculin, supra, the scope of review for the trial court, and for this Court, is whether the decision of the Civil Service Commission is supported by competent, material, and substantial evidence. Const 1963, art 6, §28. The hearing officer’s decision affirmed by the Commission was based on competent, material, and substantial evidence. Read as a whole, that decision was a measured and understanding response to what had already become a very knotty problem. We quote from the record:

"This case touches on .the issue of the right to privacy in our increasingly nonprivate world. Certainly we want to avoid a situation in which the state government can arbitrarily subject employees to psychiatric examination. Such a power could lead to abuses and corruption. On the other hand the government cannot be prohibited from necessary precautionary actions where it has substantial cause to believe that an employee may be dangerous to the public or jeopardizing the interests of fellow employees. The question then becomes whether the Department had substantial cause to believe that Peterson’s mental or emotional condition might be such as to jeopardize the public or the personnel of the Department. This in eifect is a rule of common sense or what might be referred to as the 'common law of the shop’.

"At the outset there was no reason to believe that Peterson had any emotional problems. However, the matter gained momentum like a snowball going down hill, with increasing reason to believe that there was a problem. When Peterson refused to reveal the contents of the report obtained from his own psychiatrist, officials of the Department, I find, had substantial reason to suspect that there might be a serious emotional or mental problem. When they finally had the report from Dr. Guner, indicating that Peterson had a paranoid personality, they were no longer free to ignore the problem. To permit a deputized conservation officer, one who has the authority to apprehend persons and to carry a firearm, to continue to perform his duties in the field despite a strong reason to believe that he might have a serious paranoia, would be the utmost of irresponsibility. This is true despite the fact that the Department made no attempt at the hearing held by me to establish that Peterson’s conduct as an officer was erratic or that he in fact was overly critical or inclined to feel persecuted. The only evidence was the report from the psychiatrist, but it was rather telling evidence. "Despite the above I find that the reports obtained by Peterson from two independent psychiatrists are so favorable to him as to justify further investigation into his situation. Such an obviously outstanding conservation officer should not be lost to the State through misunderstandings concerning his rights with respect to psychiatric examinations, or because of his failure to cooperate with one psychiatrist. Peterson refused to take a transfer to a safety officer position, but this was consistent with his character as a dedicated public servant who has a single-minded desire to pursue a career in conservation. Accordingly, it is quite understandable that he would not accept a transfer which he felt would effectively shut him out of his chosen field. "Peterson failed to take the opportunity to have further psychiatric consultation shortly after his discharge. The Department’s answer to his discharge grievance proposed the selection of a second psychiatrist and Peterson did not follow up on that. However, in view of the developments at the hearing and the presentation by Peterson of favorable psychiatric reports, including a diagnostic study by one of the psychiatrists, I believe that the interests of the state service would be best served if Peterson were given another opportunity to establish his emotional soundness.”

Plaintiff was given complete access to his employment file with the department. Evidence favorable to the plaintiff was carefully weighed. Plaintiff’s employment records with the Department of Natural Resources and earlier with the Department of Social Welfare, Schoolcraft County, were most satisfactory. Plaintiff produced two psychiatric reports which cast some doubt on the diagnosis of Dr. Guner. However, the utility of the report by Dr. Bedwell was in issue because of plaintiff’s failure to disclose to Dr. Bedwell the fact that he had been a conservation officer and had been discharged. He indicated to Dr. Bedwell that he desired a report because he was seeking employment as a conservation officer.

The hearing officer refused to consider evidence that plaintiff had had some difficulties while in the military. Likewise, evidence of resentment by plaintiff of administrative supervision when employed as a teacher was rejected as not relevant to the issue of plaintiff’s fitness for the position of conservation officer. The content of a follow-up conversation between plaintiff’s superiors and Dr. Guner was not admitted into evidence.

However, the hearing officer did realize that plaintiff’s superiors were not given the opportunity to examine any other reports except Dr. Guner’s report of July 29 at the time that plaintiff was separated from the department, and that the content of this report would cast serious doubts in the mind of any reasonable man as to plaintiff’s mental fitness to serve as an armed conservation officer. Finally, the hearing officer’s decision that plaintiff was not entitled to reinstatement and back pay, but should be afforded an additional opportunity to demonstrate his mental fitness, was consistent with the fact that plaintiff was discharged only after he refused the lateral transfer to the position of water safety officer.

Plaintiff asserts that neither the Department of Natural Resources nor the Civil Service Commission had the power to compel him to submit to a psychiatric examination under Rule 10:18 or any other of the rules of the Civil Service Commission; that it was error for the hearing officer to justify his order by reference to a "common law of shop”. In Michigan Civil Service Commission v Local 1342, AFSCME, AFL-CIO, 32 Mich App 104 (1971), we were faced with action by the commission which was not only unauthorized by its rules, but also contrary to its stated policy. In the instant case, Rule 1.1 provides that separation shall be based upon merit, efficiency, and fitness. We are, therefore, not prepared to hold that the hearing officer or the commission exceeded their authority when they ordered plaintiff to submit to an examination of a mutually agreeable psychiatrist or face affirmance of his dismissal. In the instant case, there was a bona fide question as to plaintiff’s mental fitness to serve as an armed conservation officer empowered by statute to make arrests. MCLA 300.11 et seq.; MSA 13.1221 et seq. The potential risks not only involve the possible use of a firearm, but extend as well to the civil and constitutional rights of persons arrested and charged with game-law violations.

The judgment of the circuit court is reversed and the decision of the Civil Service Commission is affirmed. However, since plaintiff was within his rights in appealing the commission’s decision, the 30-day period for the selection of a mutually agreeable psychiatrist should be reinstated so as to give plaintiff an opportunity to demonstrate his mental fitness at this time.

Reversed and remanded for further proceedings not inconsistent with this opinion.

No costs, a public question being involved.

Bashara, J., concurred.