[nfbmi-talk] cannon's mcsc complaint

Mon Apr 28 17:41:48 UTC 2014

First time I saw this one.

Cannon Civil Service Complaint October 2013

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CSHO 2013-088 Patrick D. Cannon Department of Licensing and Regulatory Affairs 10/11/2013

State of Michigan

Civil Service Commission

Hearings Office

Table with 4 columns and 11 rows

Patrick D. Cannon

CSHo 2013-088

v.

Mailing Date:

October 11, 2013

Department of Licensing and Regulatory Affairs

Ref. No.:

2012-01223

Grievance Decision

Hearing Officer:        William P. Hutchens

Representatives:

Grievant:

Robert G. Huber, Esquire, Thrun Law Firm, P.C.

Respondent:

Christina M. Grossi, Assistant Attorney General

table end

Case Summary

Key Words:

Position Abolishment; and Separation/Resignation

For the reasons set forth below, the hearing officer rules that a large portion of this grievance addresses issues not within the authority of the hearing

officer to remedy.  Further, the main thrust of the grievance is directed at the notion that the grievant’s position was abolished for reasons of administrative

efficiency.  The hearing officer does have jurisdiction to remedy that claim, if proven, despite the arguments raised by the respondent that his authority

to do so is limited.  The ultimate problem here is that at the time the position was abolished, the grievant did not occupy it.  His Senior Executive Service

(SES) contract had expired the day before the position was abolished.  He therefore had no standing to grieve the position abolishment.  For all of the

reasons set forth more fully below, the motion for summary disposition is granted and the grievance is dismissed.

This CASE SUMMARY is not an official part of the decision.

A grievance hearing is scheduled for October 15, 2013, at the Capitol Commons Center, 400 South Pine Street, Lansing, Michigan.  On September 6, 2013, the

Department of Licensing and Regulatory Affairs, the responding party to this dispute, through the Office of Attorney General, filed a motion for summary

dismissal.  Counsel for the grievant was given time to ^2respond to the motion in writing, and was given additional latitude due to a temporary incapacity.

 He filed the grievant’s responsive pleading on October 7, 2013.  Based upon the review by the hearing officer of the pleadings of the parties, the hearing

officer offers the following:

Ruling on Motion for Summary Disposition

The grievant, Patrick D. Cannon, was employed by the Department of Licensing and Regulatory Affairs (LARA) as the director of the Commission for the

Blind.  He had been so employed since the early 1990’s.

Effective October 1, 2012, the governor issued Executive Order 2012-10, which implemented a reorganization of the executive branch.  As part of that reorganization,

the governor created the Bureau of Services for

Blind Persons as a Type II state agency.  Section IX, B, of the executive order abolishes the former Commission for the

Blind.  Section IX, C, abolishes the position of director of the Commission for the

Blind, which had been created by MCL 393.352(1).

As director of the Commission for the

Blind, the grievant was employed within the Senior Executive Service (SES).  The SES is defined by Civil Service Commission (CSC) Rule 4-6.1 as follows:

The senior executive service (SES) consists of the highest level classified positions in which the employee typically (1) reports directly to a director,

board, or commission heading an agency, or deputy director of an agency, (2) formulates and implements major policy, or (3) influences major programs and

policies relating to the critical mission of the agency.

Without quoting the entirety of CSC Rule 4-6, the relevant key points in it are:

1)      Appointments to SES positions are of limited term.  The term of the SES agreement may not exceed two years, but the agreement is renewable by agreement

of the employer and employee.

2)      An SES appointee, during the term of the SES agreement, may only be removed from their position (1) for cause, or (2) if the position that they

occupy is abolished.

3)      At the expiration of the SES agreement, the employee has no expectation in, nor any right to, reappointment to the position.

4)      At the termination of the appointment, an employee may exercise employment preference in accordance with CSC rules and regulations in effect at

the time.  Typically, such a return would be to a classification in which the employee had achieved Civil Service ^3status, and the position would not

be part of Classification Group 4 (the SES) since those positions are protected from bumping through the exercise of employment preference by a more senior

employee.  An SES employee with no prior Civil Service status shall be separated from the state classified service unless properly appointed to another

position.

In his original and amended pleadings, the grievant’s contentions may be summarized as follows:

1)       The Senior Executive Service violates Article 11, Section 5 of the Michigan constitution by an undercutting of the merit system required by the

constitution, and unlawfully expands the authority of the executive branch to make what would be viewed as partisan political appointments.

2)      The grievant claims that when he was offered the opportunity to switch from the traditional classified service (State Bureau Administrator 18) to

the senior executive service, with its limited protections and limited job security, he was told that if his SES contract was terminated, he could revert

to his former 18-level position.

3)      The grievant claims that the abolishment of his position was for reasons other than administrative efficiency.  In support of that, he compared

his experience as Director with the limited managerial experience possessed by the individual now performing substantially the same duties with the new

Bureau of Services for

Blind Persons.

4)      The grievant claims that the position abolishment and his separation from state service constitute de facto discipline without just cause.

5)      The grievant contends that pursuant to the interim decision of this hearing officer in Howard v Department of Corrections, CSHO 2012-071, his position

was not in fact abolished; that it still exists and can be filled at any time.

Based upon the contentions enumerated above, the grievant asks in his grievance that the hearing officer determine that the CSC rules and regulations and

the constitutional provisions cited in his grievance be found to have been violated, and that the hearing officer order the re-establishment of the grievant’s

former position, and that he be returned to that position and be made whole for all losses in compensation and fringe benefits.

The LARA’s motion for dismissal claims:

1)      The hearing officer is without authority to consider the grievance appeal in that the subject matter of the grievance is not appealable in this

forum.

2)      The relief requested in the grievance cannot be awarded.

^4The hearing officer has thoroughly reviewed the motion, the reply to the motion, and the supporting briefs filed by the parties.  Given the time constraints

under which the hearing officer is operating in order to rule on the motion prior to the scheduled hearing date, the arguments and legal citations of the

parties will not be repeated here.  Instead, those arguments, which as noted above have been thoroughly reviewed, are incorporated herein by reference.

On page 2 of the LARA motion, the hearing officer was struck by the phrase:

It is uncontested that the abolishment of the Grievant’s position occurred explicitly by Executive Order No. 2012-10.

The motion then goes on to assert the hearing officer’s lack of subject matter jurisdiction of a Civil Service Hearing Officer to review and potentially

overturn an order of the executive.  What struck the hearing officer in the language above is the phrase, “. . . the Grievant’s position . . . .”  It is

the understanding of the hearing officer from review of Civil Service HRMN records that the grievant’s last day of employment with the Commission for the

Blind was September 28, 2012, a Friday.  The grievant’s SES agreement, executed at arms’ length between the grievant and LARA, specifies that the agreement

expires on September 30, 2012, which happened to be a Sunday.  The action to abolish the position formerly occupied by the grievant happened on October

1, 2012, a time at which the grievant was no longer in the position.  The position was vacant.  The CSC Grievance and Grievance Appeals Procedure, Regulation

8.01, §2, Civil Service Commission Rule Reference, CSC Rule 8-1.1, states that:

Grievances Authorized

An employee may file a grievance with an appointing authority, as authorized in the civil service rules.

CSC Rule 4-6.2(e)(1) reads as follows:

No right to reappointment.  An appointee to the senior executive service has no expectation in, or right to, a reappointment at the expiration of an appointment.

 There is no requirement that an appointing authority provide any reason or justification for not reappointing a person to a further term in the senior

executive service.  Reappointment is solely within the discretion of the appointing authority.  No action by an appointing authority may create an expectation

in, or right to, reappointment.

As of September 30, 2012, the grievant was separated from the state classified service.  As a member of the SES, he had no continuing interest in the position

that he formerly occupied.  He ^5therefore has no standing to grieve what happened to that position after he vacated it.  Anything having to do with the

implementation of the executive order here in issue addresses a period of time in which the grievant had no standing to grieve.

As it concerns the first of the contentions of the grievant listed above, the SES was created by, and implemented under the imprimatur of the Civil Service

Commission.  The hearing officer is bound by the rules and regulations of the Civil Service Commission.  It is not within his authority to determine whether

the actions of that Commission comport with the mandates of the Michigan constitution.  That is a question for the courts to decide.

The second contention in the grievance and appeal is that the grievant was told prior to accepting an SES appointment that should the appointment be terminated,

he could revert back to his prior classification of State Bureau Administrator 18.  It was incumbent upon the grievant to familiarize himself with the

CSC rules as they concern such appointments.  Clearly, if he was told that he could so revert, he was given erroneous information, but he is equally culpable

for not reading the applicable rules.

The third of the grievant’s contentions, the failure of the appointing authority to abolish the grievant’s position for reasons of administrative efficiency,

has been addressed above.  The grievant was not in the position at the time of the abolition of it and therefore lacks standing to grieve the abolition.

The fourth contention raised by the grievant in his grievance and grievance appeal is that the failure to renew his SES position and the subsequent abolition

of his position constituted a de facto disciplinary measure.  As can be plainly seen in the language of CSC Rule 4-6, the appointing authority can fail

to renew an SES agreement for any reason or for no reason at all.  This failure to renew therefore cannot be viewed as actual or de facto discipline.

The last contention raised by the grievant arises out of a position abolishment case still before this hearing officer.  In the interim decision that this

hearing officer issued in the Howard matter, the hearing officer determined that since the position formerly occupied by grievant Howard had not been abolished

because the position still showed in the IRMA database as active and as being eligible to be filled.  That decision was appealed to the Employment Relations

Board (ERB) which, in its decision Department of Corrections v Howard, ERB 2012-075, reversed that finding of the hearing officer, stating that approximately

13,000 other positions within the state’s computerized records showed the same thing, though all had been abolished.  Therefore, since this basis for the

grievance filed by this grievant no longer exists subsequent to the ERB’s decision, there is no basis upon which any relief could be awarded.

^6Summary

Since the grievant did not occupy the position at the time it was abolished, he has no standing to grieve the abolition of the position.  The rest of his

contentions, for the reasons set forth above, raised issues upon which the hearing officer could grant no relief.  Therefore, the hearing officer must

grant the motion for summary dismissal filed by the Office of Attorney General on behalf of the Department of Licensing and Regulatory Affairs.

Order

The grievance is dismissed for the reasons set forth above.

Table with 3 columns and 2 rows

/S/

William P. Hutchens, Hearing Officer

table end

Notice:  This decision may be appealed if received by the Civil Service Commission’s Employment Relations Board within 28 calendar days (November 8, 2013)

of the mailing date on the face of this decision as authorized by Civil Service Commission Rule 8-7, Appeal to Civil Service Commission.  Instructions

and forms for filing an appeal, Civil Service Regulation 8.05, Employment Relations Board Appeal Procedures, and Regulation 8.06, Computing Time and Filing

Documents, can be found at

www.mi.gov/erb.

  Appeals and inquiries should be addressed to the Employment Relations Board, Michigan Civil Service Commission, Capitol Commons Center, 400 South Pine

Street, P.O. Box 30002, Lansing, Michigan 48909; by telephone, at (517) 335-5588; by fax, at (517) 335-2884; or by e-mail to

MCSC-ERB at michigan.gov.

This is a publication of the Michigan Civil Service Commission. The written document, as published at the time it was issued, is the most authoritative

source of the actual content and format of the decision.

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