Kment v. City of Detroit

311 N.W.2d 306, 109 Mich. App. 48

• Court: Michigan Court of Appeals
• Decided: September 8, 1981
• Docket: Docket 43899
• Status: Published

Opinions

Per Curiam.

Alan F. Kment appeals by leave granted the decision of the Workers’ Compensation Appeal Board (WCAB) holding that he was not entitled to receive $1,500 in penalties from the City of Detroit for its late payment of medical bills under § 801(2) of the Worker’s Disability Compensation Act (the act), MCL 418.801(2); MSA 17.237(801X2).

Kment, a police officer for the defendant, City of Detroit, received a head injury during a narcotics raid staged on October 6, 1977. The parties do not dispute that the injury was duty-related. Kment’s injury resulted in his being disabled from October 8, 1977, through mid-December, 1977. During this time, Kment continued to draw his normal salary. He returned to work in mid-December, 1977, but was assigned light duty in the Detroit Police Fiscal Section because he continued to suffer from the effects of his injury. After obtaining prior authorization from his employer, Kment was treated for his injuries on an outpatient basis at the University of Michigan Hospital in Ann Arbor on January 17 and January 24, 1978. The cost of these visits, totaling $260, was billed directly to the Detroit Police Medical Section on January 29 and February 12, 1978. On February 14, 1978, the hospital bills were approved for payment by the Detroit Police Department physician and were routed to the fiscal section, where Kment worked. Kment, in the course of his duties, authorized payment of the bills and they were finally paid on May 4 and May 19, 1978. Payment was made directly to the hospital. Kment also claimed reimbursement for travel expenses incurred on his visits to the hospital and, on June 9, 1978, a check in the amount of $14.28 was personally received by Kment.

While working in the Fiscal Section, Kment became aware of a then new statute, MCL 418.801(2); MSA 17.237(801X2), which provides for a $50 per day penalty for late payment of workers’ compensation benefits.¹ On May 16, 1978, Kment filed a petition for hearing with the Bureau of Workers’ Disability Compensation (Bureau) claiming to be entitled to the penalties described in § 801(2) of the act. The city responded to the petition and a rule V hearing was conducted before an administrative law judge on June 28, 1978. In a decision signed July 11, 1978, and mailed July 17, 1978, the administrative law judge awarded Kment the $1,500 statutory maximum.

The city then appealed to the WCAB raising several potentially meritorious issues concerning the application of § 801(2). In an opinion and order dated January 25, 1979, the WCAB reversed the decision of the administrative law judge, holding that pursuant to § 418.161 of the act, MCL 418.161; MSA 17.237(161), Kment was not entitled to receive benefits under the act since he had elected to accept "like benefits” under the city charter. The matter was remanded to the Bureau in order to allow him to make an election between the benefits provided by the city charter and those provided by the act.

Kment then sought leave to appeal to this Court and leave was granted on May 3, 1979. A decision was orginally rendered on September 3, 1980, reversing the decision of the WCAB on the basis that the benefits provided by the city charter were not, as a matter of law, "like benefits”. The city subsequently brought an application for rehearing, which was granted.

The issue on appeal remains whether the applicable disability benefit provisions of the Detroit City Charter provide "like benefits” so that plaintiff is barred from recovering benefits under both the act and the charter. At the heart of this issue is MCL 418.161; MSA 17.237(161), which provides in part as follows:

"Policemen, firemen, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state having charter provisions prescribing like benefits, may waive the provisions of this act and accept in lieu thereof like benefits as are prescribed in the charter but shall not be entitled to like benefits from both.”²

Concerning police disability benefits, the present charter of the City of Detroit provides:

"The police commissioner’s power under title 4, chapter 21, section 18 of the 1918 Charter shall in all respects continue in existence exactly as before until changed by ordinance.” Detroit Charter, 1974, § 13-108.

The referenced section of the prior charter provided:

"Whenever any member of the police department shall become sick or shall be disabled in the performance of his duties, his salary and medical, surgical and hospital expenses during the time of such disabilities may become a charge upon the police fund and he may be paid such salary and expenses at the discretion of the commissioner, who shall inquire into the circumstances, and if satisfied that the charge upon said fund is correct and reasonable, may certify the same to be paid from the police fund.” Detroit Charter, 1918, tit 4, ch 21, § 18.

In determining whether the above quoted portion of the charter provides "like benefits” we first note that the charter does not have to provide for benefits which are in every detail identical to those provided for by the act. Even if the workers’ compensation scheme provides for a particular benefit which the charter does not, the benefits are "like” so long as the two plans are similar in their salient features. MacKay v Port Huron, 288 Mich 129, 134; 284 NW 67.1 (1939), Johnson v Muskegon, 61 Mich App 121; 232 NW2d 325 (1975). Accordingly, the fact that the Detroit City Charter does not provide for a penalty payment as does § 801(2) of the act is not dispositive. It is clear, however, that to be considered as "like benefits” the claimant must have a legally enforceable right to the benefits dependent on the charter and not on the good will of the city council or any other city official. Cichecki v Hamtramck, 382 Mich 428, 435; 170 NW2d 58 (1969). In Cichecki, a police officer for the City of Hamtramck suffered a heart attack and died, leaving a widow and six minor children. Under the city charter the widow was entitled to receive 1/2 of her husband’s salary until she died or remarried.³ The minor children were not entitled to receive anything under the charter unless their father had died without leaving a widow, in which case they would share equally in the benefits that the widow otherwise would have received. Mrs. Cichecki received the benefits specified in the charter. In addition, and apparently because of the needs of the children, the city council voted to double the amount she received. The children then applied for workers’ compensation benefits. The referee and the appeal board held that the children were not entitled to benefits because they had received "like benefits” under the charter. The Supreme Court reversed, holding that since the children had at best only a mere expectancy of benefits under the charter while the workers’ compensation act provided them with present, vested, and enforceable rights to compensation, the benefits, if any, recoverable under the charter were not "like benefits”. The city argued that the children had in fact received "like benefits” by virtue of the city council’s resolution doubling the amount their mother received. The Supreme Court rejected this argument:

"The appellee would have us affirm the referee’s and appeal board’s determination that the doubling of the amount received by the widow through the resolution of the city council constituted a portion of 'like benefits’ to plaintiff children with which the workmen’s compensation act was concerned. We can make no such affirmation. It is clear that the workmen’s compensation act requires that the 'like benefits’ there proscribed be within the charter pension provision. 'Like benefits’ must be legally enforceable rights dependent on the charter and not reliant on the good will of the city council. In this case, the council’s resolution to increase the widow’s pension gave no further right to the six plaintiffs; their common-law right to support was unaffected by this gesture, and the increase amounts to a gratuity to the widow with no assurance as to its continuation or amount.” Cichecki, supra, 435. (Emphasis in original.)

Kment argues in the instant case that he did not have an enforceable right to benefits under the charter. He points out that the charter provides only that his salary and expenses related to his disability "may become a charge upon the police fund” and that he "may be paid such salary and expenses at the discretion of the commissioner He argues that, as a result, the payment of benefits under the charter is a discretionary act and that, under Cichecki, he has no legally enforceable right to compensation pursuant to the charter.

In response, the city first argues that the commissioner’s discretion under the charter is limited to a determination of whether the disability was duty-related and that in this regard the commissioner is fulfilling the same function as would an administrative law judge under the act charged with determining whether a particular disability arose out of and in the course of employment. We do not believe, however, that under the language of the charter the commissioner’s discretion is automatically so limited. The charter does require the commissioner to "inquire into the circumstances”, but even if he or she is "satisfied that the charge upon said fund is correct and reasonable” the commissioner is still not required to pay the benefits but "may certify the same to be paid from the police fund”. Accordingly, the charter language seemingly grants the commissioner authority to deny benefits even when convinced that the disability is duty-related. This language from this portion of the Detroit City Charter is vastly different from that found in the charters at issue in Cichecki and MacKay v Port Huron, supra, 132, in that those charters provided that the widows "shall” receive the specified benefits.

The city next contends that, while the language of the charter appears discretionary, when read in connection with other sections of the charter, when placed in the context of modern labor relations law, and when consideration is given to the city’s collective-bargaining agreement with plaintiff’s union, the plaintiff does in fact have a legally enforceable right to the benefits mentioned in the charter. Section 6-507 of the Detroit City Charter recognizes that "[ejmployees of the city have the right to collective organization and collective bargaining”. Section 6-508 of the same charter states in part that "[t]he terms of any collective bargaining contract, and all rules and rulings made under it, shall take precedence over any inconsistent classifications, rules, or policies of the personnel department”. Furthermore, the Supreme Court has held that "the duty * * * to perform in accordance with the terms of a collective bargaining agreement prevails over conflicting provisions of the charter of a home-rule city”. Pontiac Police Officers Ass’n v Pontiac, 397 Mich 674, 677; 246 NW2d 831 (1976).⁴ While Cichecki holds that to be "like benefits” the benefits must be legally enforceable on the basis of the charter, the Supreme Court has recognized in Pontiac Police Officers that the terms of a collective-bargaining agreement control in case of a conflict with the provisions of a charter. Accordingly, if the collective-bargaining agreement in the instant case between the city and Kment’s union provided for a legally enforceable right to disability benefits, Pontiac Police Officers would suggest that the terms of the agreement would supersede the discretionary charter provision and, under the reasoning of Cichecki, Kment might be deemed to have received "like benefits”. Further analysis of this issue, therefore, requires an examination of the applicable collective-bargaining agreement between the city and Kment’s union, the Detroit Police Officers Association (DPOA).

The provisions of the collective-bargaining agreement referred to by the parties, insofar as they relate to duty-connected disability benefits, begin by incorporating the charter provisions on the same subject. The effect of this incorporation, of course, is to carry over in the agreement the same discretionary language found in the charter. The city then refers to other parts of the agreement concerning the establishment of a grievance procedure, the final step of which is binding arbitration. The procedure established specifically refers to the grievance and arbitration of a "medical issue”. The city argues that the existence of this procedure allows the disabled officer to enforce his or her entitlement to disability benefits. The major problem with the city’s argument is that article XI of the collective-bargaining agreement limits the arbitrators’ authority as follows:

"The Board of Arbitrators shall limit its decision strictly to the interpretation, application, or enforcement of the specific articles and sections of this agreement, and it shall be without power or authority to make any decision:

"2. Involving the exercise of discretion by the City under the provisions of this agreement, its Charter, or applicable laws.”

Since the award of benefits under the charter (and, by incorporation, under the agreement) seemingly remains within the discretion of the city (through the person of the police commissioner), the arbitrators are without authority to order the payment of benefits when, in the exercise of discretion, the commissioner has chosen not to award such benefits. Accordingly, the city fares no better under the terms of the collective-bargaining agreement than it does under the charter.⁵ In either event the city must establish that, although apparently discretionary, the provisions of the city charter do in fact establish an enforceable right to recover disability benefits.

Before addressing the city’s remaining arguments concerning the enforceability of the disability charter provision, it is helpful to note the differences between Cichecki and the instant case. In Cichecki, the charter made absolutely no provision for the children of Officer Cichecki unless his wife predeceased him. While the city voluntarily doubled the benefits received by his widow because of the children’s needs, that act was totally independent, having no relation at all to the language of the charter. In the instant case, however, the charter does provide disability benefits for officers such as Kment who are disabled in the line of duty. The problem arises because of the discretionary language used in the charter which would seemingly allow the commissioner to deny benefits even if the disability was, as here, undisputedly duty-related. It is suggested by the city, however, and not disputed by Kment, that once it has been determined that a particular disability is in fact duty-related the benefits provided in the charter are routinely awarded. This further distinguishes the instant case from Cichecki. the Cichecki children were absolutely disqualified from receiving charter benefits since their mother was still living. Officer Kment, on the other hand, was not only specifically included within the class of persons potentially entitled to receive charter benefits (those with duty-related disabilities), but the city suggests that the history of its conduct under the charter establishes that once it is found that an officer is suffering from a duty-related disability, benefits under the charter are always awarded. Accordingly, the city argues that, while the language of the charter appears discretionary, history and custom establish that Kment in fact had an enforceable right to recover the charter benefits he was actually awarded.

Ordinarily, use of the word "shall” indicates that the doing of a particular thing is mandatory while use of the word "may” grants discretion. Law Dep’t Employees Union v Flint, 64 Mich App 359, 368; 235 NW2d 783 (1975). This is not always the case, however, and it has often been held in the context of particular statutes that the term "shall” is not mandatory and that the term "may” is. McBrian v Grand Rapids, 56 Mich 95; 22 NW 206 (1885), Smith v City Comm of Grand Rapids, 281 Mich 235; 274 NW 776 (1937), Burns v Auto-Owners Ins Co, 88 Mich App 663; 279 NW2d 43 (1979), Nortown Theatre, Inc v Gribbs, 373 F Supp 363, 367-368 (ED Mich, 1974), rev’d sub nom American Mini Theatres, Inc v Gribbs, 518 F2d 1014 (1975), rev’d sub nom Young v American Mini Theatres, Inc, 427 US 50; 96 S Ct 2440; 49 L Ed 2d 310 (1976). "Although the form of the verb used in a statute, i.e., whether it says something 'may’ or 'shall’ or 'must’ be done, is the single most important textual consideration bearing on whether a statute is mandatory or directory, it is not the sole determinant and what it naturally connotes can be overcome by other considerations”. 2A Sutherland, Statutory Construction (4th ed), § 57.03, p 415. Chief among such "other considerations” is, of course, the intent of the Legislature. Id., § 57.02, p 414. See Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich 184, 187; 253 NW2d 646 (1977). "The literal meaning of the words 'may’ and 'shall’ is not always conclusive in the construction of statutes in which they are employed; and one should be regarded as having the meaning of the other when that is required to give effect to other language found in the statute, or to carry out the purpose of the Legislature as it may appear from a general view of the statute Strain v Southerton, 75 Ohio App 435, 440-441; 62 NE2d 633 (1945). (Emphasis added.) In determining the intent of the Legislature, certain generalities may be adduced concerning specific types of statutes and it has been said as a general rule that "the permissive word 'may’ is interpreted as mandatory when the duty is imposed upon a public official and his act is for the benefit of a private individual”. 1A Sutherland, Statutory Construction (4th ed), § 25.04, p 301.

Our Supreme Court has recognized and given effect to these principles. In McBrian v Grand Rapids, supra, the statute in issue provided for the solicitation of sealed proposals relative to the construction of sewers. The statute also provided that the board of public works "may” contract with the lowest responsible bidder. The Supreme Court held:

"In construing this section, with reference to contracting with the lowest responsible bidder, the word 'may’ must be construed as if it meant shall. What the board is required to do is for the benefit- of the public; the object being to invite competition, and prevent favoritism and fraud in awarding contracts for public works. It was not the intention of the Legislature to leave it discretionary with the board whether the contract should be made with the lowest responsible bidder.” McBrian, supra, 98-99. (Emphasis in original.)

And in Smith v City Comm of Grand Rapids, supra, the Supreme Court stated:

" 'Statutes which confer upon a public body or officer power to act for the sake of justice, or which clothe a public body or officer with power to perform acts which concern the public interests or the rights of individuals, are generally regarded as mandatory, although the language is permissive merely, since they are construed as imposing duties rather than conferring privileges.’ ” Smith, supra, 242-243.

Applying these principles to the instant case, we hold that the word "may”, as used in title 4, ch 21, § 18 of the Detroit City Charter of 1918, and as incorporated by reference in § 13-108 of the present Detroit City Charter, should be read as mandating the payment of charter disability benefits once it has been determined that a police officer has suffered a duty-related disability. The charter provision is clearly aimed at providing compensation to those officers who are disabled in the line of duty. While the charter clearly contemplates the exercise of some discretion and specifically refers to the "discretion of the commissioner”, we believe that this discretion was intended to apply solely to the issues of whether a particular disability was duty-related and whether a particular charge was correct and reasonable. The presence of this degree of discretion does not defeat a finding that the benefits provided by the charter are "like benefits”. As the city points out, similar determinations are made under the workers’ compensation act. If the scope of the commissioner’s discretion under the charter were broader than this, however, the essential purpose of the charter provision in question would be defeated. It must be assumed that this charter provision does not contemplate the arbitrary denial of benefits and, once it is determined that the disability is duty-related and that the amount of the benefits sought are correct and reasonable, the charter suggests no other basis on which the commissioner might deny benefits. The charter imposes a duty on a public official for the benefit of a private individual. Once the threshold requirements are satisfied, the police commissioner must certify that the charter disability benefits be paid.

Because we accord a mandatory construction to the charter provision, we hold that Kment had a legally enforceable right to the benefits provided by the charter. Accordingly, Cichecki does not defeat a finding that the charter benefits are otherwise "like benefits”.

In his original brief on appeal, Kment also contended that the benefits provided under the charter were not "like benefits” because the disability benefit provisions of the charter were susceptible to change by ordinance. See MCL 117.21; MSA 5.2100. Kment has retreated from this argument on rehearing, and, in the face of Detroit Police Officers Ass’n v Detroit, 391 Mich 44; 214 NW2d 803 (1974), concedes that the possibility that the charter might be amended by ordinance does not automatically render the charter benefits unenforceable. We agree, and, accordingly, need not discuss the matter further.

The benefits which Kment has received under the Detroit City Charter are, as a matter of law, "like benefits” and under § 161 he cannot also receive workers’ compensation benefits. Accordingly, the decision of the WCAB is affirmed, and, pursuant to that decision, this cause is remanded to the Bureau of Workers’ Disability Compensation in order that Kment might make an election, on the record, between the benefits provided by the charter and those provided by the workers’ compensation act. Johnson v Muskegon, supra, 127-128.

Affirmed and remanded.

R. M. Maher, P.J., and T. C. Quinn, J., concurred.

1 "If weekly compensation benefits, accrued weekly benefits, medical bills, or travel allowance are not paid within 30 days after becoming due and payable in cases where there is no ongoing dispute, $50.00 per day shall be added and paid to the worker for each day over 30 days in which the compensation, medical bills, or travel allowance are not paid. Not more than $1,500.00 in total may be added pursuant to this subsection.” MCL 418.801(2); MSA 17.237(801X2).

2 The statute was amended by 1980 PA 357, to be effective on January 1, 1982. So far as it concerns the quoted portion of the statute the amendment makes several stylistic alterations but does not appear to produce any substantive change.

3 " 'Sec. 7 Widows, children; pensions; duration, rate. — Pensions shall be paid as in this chapter provided to the widow or the children of any person herein described who shall die from causes entitling him, if still living, to retirement, or who shall die while in retirement or who shall die while eligible to retirement, said pension shall be equal to 1/2 of the rate of pay said person was entitled to receive at the time his disability was caused, or at the time of retirement by reason of length of service, or while eligible for retirement. Such a widow shall, during her lifetime or until she remarries, receive such pension.

" 'Should any such person described in paragraph one, subsection (a) of this chapter die, leaving no widow, his child or children under the age of 18 years shall receive such pension, share and share alike. When any of such children attain the age of 18 years or shall die, the share of such child shall be paid to the remaining child or children under the age of 18 years, share and share alike, until such remaining child or children reach the age of 18 years respectively.’ ” Cichecki, supra, 433. (Emphasis in original.)

4 While none of the opinions in Pontiac Police Officers commanded a majority, a majority of the justices concurred in the specific holding quoted here. See Central Michigan University Faculty Ass’n v Central Michigan University, 404 Mich 268, 279; 273 NW2d 21 (1978).

5 There is some doubt as to whether the particular collective-bargaining agreement referred to by the parties was still in effect at the times relevant to the instant case. Given our disposition of this issue, however, and given that the city has failed to support its arguments by reference to a more recent agreement, we do not believe it is necessary to resolve the matter.