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Shirvell v. Department of Attorney General

Court of Appeals of Michigan

January 8, 2015

ANDREW SHIRVELL, Claimant-Appellee,
v.
DEPARTMENT OF ATTORNEY GENERAL, Appellant, and DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS/UNEMPLOYMENT INSURANCE AGENCY, Respondent. ANDREW SHIRVELL, Claimant-Appellee,
v.
DEPARTMENT OF ATTORNEY GENERAL, Respondent, and DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS/UNEMPLOYMENT INSURANCE AGENCY, Appellant. ANDREW SHIRVELL, Petitioner-Appellant,
v.
DEPARTMENT OF ATTORNEY GENERAL, Respondent-Appellee, and CIVIL SERVICE COMMISSION, Defendant-Appellee

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Ingham Circuit Court. LC No. 12-000344-AE. Ingham Circuit Court. LC No. 12-000344-AE. Ingham Circuit Court. LC No. 12-001089-AA.

For DEPARTMENT OF ATTORNEY GENERAL, APPELLANT (314223): JEANMARIE MILLER, LANSING, MI.

For DEPT OF LICENSING & REGULATORY AFFAIRS/UNEMPLOYMENT INSURANCE AGENCY, RESPONDENT (314223): GEORGE G CONSTANCE, DETROIT, MI.

For DEPARTMENT OF ATTORNEY GENERAL, RESPONDENT (314227): JEANMARIE MILLER, LANSING, MI.

For DEPT OF LICENSING & REGULATORY AFFAIRS/UNEMPLOYMENT INSURANCE AGENCY, APPELLANT (314227): GEORGE G CONSTANCE, DETROIT, MI.

For DEPARTMENT OF ATTORNEY GENERAL RESPONDENT-APPELLEE (316146): JEANMARIE MILLER, LANSING, MI.

For CIVIL SERVICE COMMISSION, DEFENDANT-APPELLEE (316146): JASON D HAWKINS, LANSING, MI.

Before: MURRAY, P.J., and O'CONNELL and BORRELLO, JJ.

OPINION

Page 483

[308 Mich.App. 706] Stephen L. Borrello, J.

In these consolidated appeals, in Docket Nos. 314223 and 314227, the Department of Attorney General (the Department), and the Department of Licensing and Regulatory Affairs/Unemployment Insurance Agency (UIA), respectively, appeal by leave granted a circuit court order reversing the order of the Michigan Compensation Appellate Commission (MCAC) affirming the UIA's denial of claimant Andrew Shirvell's claim for unemployment benefits. In Docket No. 316146, Shirvell appeals by leave granted a circuit court order affirming a Civil Service Commission (the [308 Mich.App. 707] Commission) order denying Shirvell's grievance and holding that the Department had just cause to terminate Shirvell's employment under the Civil Service Rules (CSR) for conduct unbecoming a state employee. For the reasons set forth in this opinion, in Docket Nos. 314223 and 314227 we reverse the circuit court's order and remand for reinstatement of the MCAC's order and in Docket No. 316146 we affirm the circuit court's order.

I. BACKGROUND

These cases arise from Shirvell's highly publicized conduct directed at Chris Armstrong in the summer and autumn of 2010. At the time, Armstrong was the president of the University of Michigan (U-M) Student Assembly (MSA) and was the first openly gay individual to hold that position. Shirvell had been an assistant attorney general with the Department since 2007. It is undisputed that Shirvell received good performance evaluations during his tenure with the Department. However, on

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November 8, 2010, he was dismissed for conduct unbecoming a state employee.

The impetus behind the termination was Shirvell's actions surrounding his authoring of a public blog entitled the " Chris Armstrong Watch." The blog contained various postings concerning Armstrong, his sexual orientation, and his " radical homosexual agenda." For example, one blog entry characterized Armstrong as a " RADICAL HOMOSEXUAL ACTIVIST, RACIST, ELITIST, & LIAR," and another entry contained a rainbow flag with a swastika posted next to a photograph of Armstrong's face with the word " resign" nearby. In one entry, Shirvell referred to Armstrong as a " privileged pervert." Shirvell accused Armstrong of supporting a " radical homosexual agenda" [308 Mich.App. 708] that included support for rights such as " gay 'marriage' and adoption 'rights'" and a gender-neutral housing policy under which, according to Shirvell, " cross-dressing students will not have to share a dorm room with a member of the same sex" and that would " undoubtedly lead to a massive increase in rapes."

In addition, Shirvell claimed that Armstrong was a " racist liar" because he joined a campus group called the " Order of Angell" and that Armstrong demonstrated " a severe contempt for the First Amendment right to freedom of expression. Much like Nazi Germany's leaders, many of whom were also homosexuals." Shirvell accused Armstrong of engaging in " underage binge-drinking" and using his " sexual preference to advance his ambitions," claimed that Armstrong interned for United States Representative Nancy Pelosi " as a lowly handmaiden," and referred to him as the " grand dragon" of the MSA.

In addition, Shirvell accused Armstrong of hosting a " gay orgy" and asserted that Armstrong had a " tendency to engage in one-on-one casual 'gay' sexual encounters with friends." Shirvell asserted that the " gay orgy" " sheds new light on the deranged character of U of M's new student body president . . . [and] shows that Armstrong's push for 'gender neutral' housing . . . may be part of a broader agenda to allow 'gay residents to more easily engage in 'homosexual shenanigans' (read: orgies, underage binge-drinking, and probably illegal drug use, too)." Shirvell wrote similar things about Armstrong's friends and alleged that one male member of the MSA was Armstrong's " secret boyfriend" who was a " closet homosexual." In a television interview, Shirvell did not deny that on one occasion on a separate Facebook page he referred to Armstrong as " Satan's representative" on the MSA . In addition to authoring [308 Mich.App. 709] the blog, Shirvell appeared outside Armstrong's residence and at events where Armstrong was present and held protest signs.

Initially, Shirvell maintained the blog under the pseudonym " Concerned Michigan Alumnus," however, on May 20, 2010, the newspaper Between the Lines, published an article identifying Shirvell as an " anti-gay heckler," the author of the blog, and an assistant attorney general. Shortly thereafter, Shirvell and the blog became the subject of intense media scrutiny and in the summer and fall of 2010, Shirvell appeared on local and national news programs, including Cable News Network's (CNN's) Anderson Cooper AC360 and Comedy Central's The Daily Show, to defend the blog. During the interviews, Shirvell explained that he was speaking as a private citizen and he refused to answer questions about his position with the Department. Nevertheless, the media outlets identified Shirvell as an assistant attorney general. In the interviews, Shirvell explained that he was opposed to Armstrong's policies, which he characterized as a " radical homosexual agenda," and denied

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that he had a personal agenda against Armstrong.

The fallout from the interviews was widespread. Then Michigan Attorney General Michael Cox took measures to clarify that Shirvell did not represent the views of the Department, sending an email to CNN and later appearing on AC360 for an interview with Anderson Cooper. Cox explained that, although Shirvell was being a bully and his conduct was " offensive" and " unbecoming of civil discourse," Shirvell nevertheless had a First Amendment right to express his views. Shortly thereafter, the Michigan Civil Rights Commission and the Ann Arbor City Council passed resolutions condemning Shirvell's behavior [308 Mich.App. 710] and questioning Shirvell's effect on the Department's ability to fulfill its mission. In addition, U-M barred Shirvell from its campus for a time and Armstrong filed a petition for a personal protection order (PPO), which was later dropped. Furthermore, according to testimony from officials within the Department, the Department was inundated with negative e-mails and telephone calls opposed to Shirvell.

Finally, on November 8, 2010, following a disciplinary hearing, the Department terminated Shirvell's employment for " conduct unbecoming a state employee." The Department issued a termination letter to Shirvell that listed the reasons for the termination as follows:

Engaging in inappropriate conduct by targeting individual members of the public, both in person and through electronic media, which could reasonably be construed to be an invasion of privacy, slanderous, libelous, and tantamount to stalking behavior unbecoming an Assistant Attorney General.
Engaging in conduct which resulted in filing of a request for a personal protection order against you for alleged stalking behavior.
Conduct which has caused, or has the potential to cause, disruption to the Department's working relationships with its clients, the courts, and local governments.
Conduct that has caused, or has the potential to cause, disruption among members of the Department workforce and could have a negative impact on attracting and retaining the most qualified employment candidates.
Conduct that has damaged, or has the potential to damage, the public's perception of the Department's ability to conduct its operations and mission.
Conduct that compromises your ability to perform your responsibilities as an Assistant Attorney General.
Inappropriate, unprofessional behavior toward your supervisors and co-workers.
[308 Mich.App. 711] Ignoring advice and counsel of your supervisors.
Conduct which has resulted in a variety of offenses, a criminal violation, and a civil warning regarding various statutes or ordinances including, but not limited to:
Driving under the influence[.]
Trespass[.]

Following his termination, Shirvell filed a grievance challenging the grounds for termination, arguing that the Department did not have just cause to terminate him under the CSR. Shirvell also filed a claim to recover unemployment benefits.

In the grievance proceeding,[1] the circuit court affirmed the Commission's finding that the Department had just cause for termination because Shirvell engaged in " conduct unbecoming a state employee."

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The circuit court reasoned that Shirvell's conduct interfered with the Department's mission and effectiveness and therefore was not protected under the First Amendment. This Court granted Shirvell leave to appeal the circuit court order in Docket No. 316146.[2]

In the unemployment compensation case,[3] the UIA determined that Shirvell was disqualified for benefits under the " misconduct" provision of the Michigan Employment Security Act (MESA), MCL 421.1 et seq. The MCAC affirmed the UIA, but the circuit court reversed the MCAC's order, reasoning that Shirvell engaged in protected speech and therefore could not be denied benefits on the basis that his speech activities amounted to misconduct. This Court granted the Department [308 Mich.App. 712] and the UIA leave to appeal that order.[4] This Court consolidated the three appeals in separate orders.[5]

We proceed by first setting forth the evidence that was introduced at the grievance hearing before discussing the evidence introduced at the unemployment compensation hearing.[6]

A. GRIEVANCE PROCEEDING

Following his termination, on November 15, 2010, Shirvell filed a grievance with the Department, claiming that his discharge was without just cause and was arbitrary and capricious. On January 18, 2011, the Department denied the grievance. Shirvell appealed the decision to the Commission, and a hearing officer held a hearing on October 19 and October 20, 2011.

At the hearing, Douglas Bramble, the Department's then former human resources manager, testified that he had initiated disciplinary proceedings against Shirvell on the basis of Shirvell's conduct regarding the blog and the television interviews. Bramble explained that the Department was concerned with the content of the blog, including the swastika directed at Armstrong and other accusations Shirvell made against Armstrong and Armstrong's [308 Mich.App. 713] friends. The Department was also concerned that U-M issued a trespass warning to Shirvell. Bramble stated that the Department began receiving telephone calls and e-mails from people concerned that an employee of the Department would engage in this type of conduct. Bramble testified that the Department received numerous e-mails and telephone calls regarding Shirvell's behavior, which necessitated, for a time, the appointment of an individual to work full-time to handle the complaints. Bramble and other officials within the Department appointed Michael Ondejko, an investigator within the Criminal Division, to conduct a formal investigation.

During his investigation, Ondejko interviewed 40 individuals including Armstrong and several of his friends and associates.

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Generally speaking, the interviewees recounted their contacts with Shirvell, their reactions to his blog postings pertaining to them, their concerns about the effect his blog would have on their futures, their fear for Armstrong's safety, and their belief regarding the truth or falsity of certain statements Shirvell made about them on Facebook or on his blog. In particular, Ondejko reported that Armstrong claimed that Shirvell had been outside his house on at least three separate occasions. Armstrong told Ondejko that on September 4, 2010, Shirvell was outside taking pictures after the police were called with a loud-party complaint. Ondejko reported that during the disciplinary conference, Shirvell admitted calling the police and photographing their arrival on September 4, 2010. Armstrong also told Ondejko that on September 6, 2010, Shirvell appeared outside his house with a protest sign and that, because he was concerned for his safety, he called the Ann Arbor Police Department and the U-M Department of Public Safety.

[308 Mich.App. 714] Ondejko testified that he was unable to prove that Shirvell had made blog postings on his work computer. Further, he testified that he was unable to determine whether Shirvell used his work computer to post on social media sites like Facebook and Twitter.

Ondejko testified that he felt he was " given a free hand to investigate the case the way [he] saw fit." He testified that no one else helped him investigate the case, although Thomas Cameron, a bureau chief with the Department, reviewed drafts of his report. As part of the investigation, Ondejko testified that the Department forwarded him " thousands" of e-mails and records of telephone calls concerning complaints that citizens made about Shirvell. Ondejko referred to these in the report, but he could not include them all because of the extensive number. He testified that no one told him that they wanted Shirvell fired or that they wanted his report to provide enough ammunition to support termination. Further, he testified that he did not have a bias or prejudice against Shirvell when he conducted the investigation.

When Ondejko completed the report, the Department initiated a disciplinary conference with Shirvell and his counsel present. The conference lasted several hours and was to reconvene several days later. However, in the interim, Bramble and Cameron concluded that Shirvell had engaged in conduct unbecoming a state employee and recommended termination to Cox and Deputy Attorney General Carol Isaacs, who agreed with the recommendation. Bramble explained that the Department always held attorneys within the office to " a very high standard of conduct, both personal and professional conduct." Bramble testified that the Department did not instruct its attorneys on how to carry out their personal lives, but the Department did have a [308 Mich.App. 715] " long history of expecting [attorneys] . . . to recognize . . . that you are a representative of the Attorney General . . . at all times." Bramble stated that as representatives of the Attorney General, it would show " common sense to behave accordingly . . . ."

Bramble explained that, during his short tenure with the Department, Shirvell was formally disciplined for a loud verbal altercation with Brad Beaver, his immediate supervisor, and for violating the Department's media-contacts policy for failing to inform the Department about his first televised interview. In addition to these violations, Bramble characterized Shirvell's conduct with respect to Armstrong as " very egregious." Bramble concluded that Shirvell had " compromised his ability to engage in the assigned duties and responsibilities of an Assistant Attorney General"

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to represent clients and the people of the state of Michigan. Bramble explained that it was not reasonable to reassign Shirvell within the Department and he stated that Shirvell's conduct affected the Department as a whole. He noted that other Department attorneys were being questioned about the conduct during unrelated proceedings.

Cox testified at the grievance hearing and agreed that he had appeared on CNN, where he stated that Shirvell had the right to say whatever he wanted regardless of how offensive his speech was.[7] He agreed [308 Mich.App. 716] that during the Cooper interview he was " very candid and said that he thought Mr. Shirvell's conduct was offensive." He also agreed that he had said that Shirvell was being a bully, but had also stated that Shirvell's conduct did not interfere with the mission of the office. However, Cox testified that, at the time he gave the interview, he had not read the entire blog. After reading the entire blog, Cox was " shocked" at the contents and came to believe that Shirvell's conduct threatened the mission of the Department. Thus, according to Cox, his statements during the Cooper interview were made before he conducted a thorough investigation into Shirvell's comments and writings.

Cox testified that a number of things shocked him about the blog, including Shirvell's seeming " obsession" [308 Mich.App. 717] and " infatuation" with Armstrong, Shirvell's " outing" of an individual from a small town in Michigan's Upper Peninsula and then " crowing about it," and Shirvell's description of engaging in conduct that Cox, because of his prior experience as a prosecutor, considered stalking behavior. Cox stated that, in his view, merely because the Washtenaw County Prosecutor had not charged Shirvell was not dispositive regarding whether Shirvell had violated Michigan's antistalking statute. Cox testified that when he appeared for the Cooper interview he was also unaware of several things about Shirvell, including the verbal altercation he had

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had with Beaver. Thus, Cox explained that when he said to Cooper that Shirvell was not affecting the Department's mission, his statement was " accurate from the perch that I was at."

Cox explained why he agreed with the recommendation to terminate Shirvell as follows:

This, in my mind, was in stunning detail, an overwhelming case to terminate Mr. Shirvell. [The investigative report] outlined escalating behavior. It outlined behavior separate from the blog that dealt with not only his behavior in the workplace but also his behavior outside the workplace, some which I would call minimally misdemeanant criminal, meaning stalking. Other behavior that would undermine the office in its daily operations. Some of it nuts and bolts but also some of it, you know, in the sense of it was conduct that one does not expect and should not accept from a state employee, especially a state employee in the Attorney General's office . . . .

Cox testified that Shirvell was engaging in conduct that was " inviting" a civil lawsuit, but was aware that Shirvell was not concerned about a civil lawsuit because he viewed himself as " judgment proof." Cox testified that Shirvell's attitude showed that he " wasn't concerned to the impact he was having on other individuals in the office."

[308 Mich.App. 718] Then Solicitor General Eric Restuccia was ultimately responsible for the Appellate Division where Shirvell worked. Restuccia testified that he first learned of the blog in May 2010, through an e-mail that was sent to him. Restuccia confirmed with the Department's ethics officer that blogging was permissible and he did not attempt to force Shirvell to remove the blog. Instead, he spoke with Shirvell to ensure that Shirvell was not engaging in political activity on state time or using state resources and also to assure that Shirvell was not identifying himself as an assistant attorney general.

According to Restuccia, he spoke with Shirvell about the blog and explained that it was not helping Shirvell and that it was not good to have people complaining about him to his supervisors. He later added that he told Shirvell that the blog would cause " problems in terms of [his] standing" within the Department. He also testified that he may have suggested that Shirvell take the blog down. However, it is undisputed that he did not order Shirvell to take the blog down. Restuccia explained that he had no authority to order that the blog be taken down.

Restuccia testified about a similar incident that occurred in February 2010, when he spoke with Shirvell about an " ugly" e-mail that Shirvell had sent during work hours. The e-mail was sent to a former state representative in response to the representative's e-mail concerning a ...


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