Szymanski v. City of Warren

333 N.W.2d 175, 123 Mich. App. 90
CourtMichigan Court of Appeals
DecidedFebruary 8, 1983
DocketDocket No. 61173
StatusPublished

This text of 333 N.W.2d 175 (Szymanski v. City of Warren) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Szymanski v. City of Warren, 333 N.W.2d 175, 123 Mich. App. 90 (Mich. Ct. App. 1983).

Opinion

D. F. Walsh, J.

Defendant City of Warren Police and Fire Civil Service Commission affirmed the decision of defendant Police Commissioner Charles L. Groesbeck to deny permanent employment to probationary police officer plaintiff Mark Szymanski. On appeal, the circuit court affirmed. Plaintiff now appeals the circuit court decision.

Plaintiff’s one-year term as City of Warren probationary police officer began in January, 1980. On January 23, 1981, plaintiff was notified in a personnel order from defendant police commissioner that based on "unsatisfactory reports” and "collective recommendation”, he would not receive a permanent appointment.1 Plaintiff requested a hearing before defendant civil service commission. [92]*92He also requested and received the contents of his personnel file.

At the February 18-19 hearing, plaintiff moved to dismiss the termination notice because he had not been given written notice of specific charges of misconduct. The commission ruled that there was no statutory requirement that a person in plaintiff’s position be given such notice. Following the testimony of several witnesses, the commission ruled that there was competent, material and substantial evidence supporting the denial of permanent employment to plaintiff. The commission discerned the following reasons, each relevant to plaintiff’s fitness for police work, justifying the police commissioner’s decision:

"The first one was the evaluation reports were unsatisfactory, specifically citing that Mark Szymanski suffered from an attitudinal problem towards the job; that he had difficulty in adjusting to the job.
"Secondly, that he lacked good judgment in dealing with the job and with the public, in general. For example, he had an inability, as alleged, to communicate with the public on their level, and that his public relations activities were found to be lacking.
"Next, he had an inability to accept advice, both from [93]*93his superior officers and the more experienced officers to whom he was assigned for training during his probationary period. There was testimony that he was argumentative to that proffered advice, and that he was inattentive to it.
"Next, it was alleged and testified to that Mark Szymanski had an inability to relate to and get along with the other officers to the point where some of the witnesses who testified felt that it had reached serious proportions so as perhaps to create a morale problem.
"And, lastly, that there was a lack of improvement in the evaluation reports over the probationary term from the beginning to the close, after counseling by his superior officers in areas where those reports indicated that Officer Szymanski was deficient.”

In his appeal to circuit court plaintiff renewed his objection to the failure of the authorities to provide him with "timely and adequate charges and reasons for termination”. He also argued that his discharge was illegal and void because only the mayor, not the police commissioner, had the authority to issue the termination notice.

The circuit court found that there was competent, material and substantial evidence supporting the administrative determination that plaintiff had been denied permanent employment because of his failure to satisfy the expectations of his superiors. The court found no insufficiency in the notice to plaintiff that he would be denied permanent employment "based upon unsatisfactory reports concerning his conduct and his capabilities in the performance of his dutes”. And, citing the City of Warren charter, the court ruled that the police commissioner was the proper person to issue the termination notice. Plaintiff challenges these latter rulings on appeal to this Court; we address the rulings in reverse order.

Section 11 of the firemen and policemen civil [94]*94service act, MCL 38.501 et seq.; MSA 5.3351 et seq., provides in pertinent part:

"(a) * * * All original appointments to any positions in the police departments, within the terms of this act, shall be for a probationary period of 1 year after the completion of legally required courses of basic training. At any time during the probationary period the appointee may be dismissed for such cause, in the manner provided in this act. If at the close of this probationary term, the conduct or capacity of the probationer has not been satisfactory to the appointing officer, the probationer shall be notified within 10 days, in writing, that he will not receive permanent appointment, whereupon his employment shall cease; otherwise his retention in the service shall be equivalent to his final appointment. The probationer shall be entitled to a hearing before the commission as provided in section 14.
"(b) Every position, unless filled by reinstatement, shall be filled only in the following manner: The appointing officer shall notify the civil Service commission of any vacancy in the service which he desires to fill, and shall request the certification of eligibles. The commission shall forthwith certify, from the eligible list, the name of the person who received the highest average at preceding examinations held under the provisions of this act within a period of 2 years next preceding the date of such appointment. The appointing officer shall, thereupon, with sole reference to the relative merit and fitness of the candidate, make the appointment so certified. As each subsequent vacancy occurs, precisely the same procedure shall be followed. When an appointment is made under the provisions of this section, it shall be, in the first instance for the probationary period, as provided in this act. The term 'appointing officer’ as used in this act shall be construed to mean the mayor or principal administrative or executive officer in any city, village or municipality.” MCL 38.511; MSA 5.3361.

In § 17 of the act the Legislature has given the [95]*95following definition to the term "appointing power”:

"The term 'appointing power’ includes every person or group of persons who, acting singly or in conjunction, as a mayor, city manager, council, common council, commission, or otherwise, is or are vested by law with power and authority to select, appoint or employ any person to hold any office, place, position or employment subject to civil service.” MCL 38.517; MSA 5.3367.

Under the provisions of the City of Warren charter, the police commissioner, who is appointed by the mayor, is the executive director of the police department. The commissioner is designated "the appointing authority” for the police department and is "responsible for the appointment of all division heads and personnel of the department”. City of Warren Charter, §§ 7.17, 7.19.

Plaintiffs argument that, pursuant to § 11(b), supra, the mayor of the City of Warren is the "appointing officer” for purposes of § 11(a), and that any termination notice to a probationary police officer at the end of his or her term must come from the mayor, is unpersuasive.2

In isolation, § ll(b)’s definition of "appointing officer” suggests that only the mayor’s evaluation of the probationer’s conduct or capacity is relevant under § 11(a). Section 11, however, "does not stand alone.

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Bluebook (online)
333 N.W.2d 175, 123 Mich. App. 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/szymanski-v-city-of-warren-michctapp-1983.