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People v. Parlovecchio

Court of Appeals of Michigan

April 4, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ANTHONY PARLOVECCHIO, Defendant-Appellant.

         Wayne Circuit Court LC No. 15-008982-01-AR

          Before: M. J. Kelly, P.J., and Murphy and Ronayne Krause, JJ.

          PER CURIAM.

         Defendant appeals by leave granted the circuit court's reversal of the district court decision granting defendant's motion to dismiss a grand jury indictment. We reverse.

         Defendant, as the president of Parlovecchio Building Company, Inc, entered into an agreement with the Wayne County Building Authority ("WCBA"), to act as project manager or "Owner's Representative" ("OR") for the Wayne County Jail Project ("Project"). The Project was never completed, and a number of individuals, including defendant, were indicted for various roles they played in the failure of the project. Defendant's indictment for willful neglect of duty as a public employee or person holding public trust under MCL 750.478 stated that he "did willfully neglect to perform the duty to fully and honestly inform a legislative body, to wit: the Wayne County Building Authority, a duty enjoined upon him by State law and/or the Wayne County Charter and/or Wayne County Ordinances . . . " The indictment contained no other specifics.

         Defendant argued in the district court that he was neither a public officer nor an employee, but rather an independent contractor, and therefore could not be subject to MCL 750.478; he also argued that the indictment insufficiently specified what criminal actions he "actually did, " and he requested a bill of particulars. The district court agreed with defendant's first proposition and dismissed the indictment. On appeal, the circuit court reversed and reinstated the indictment, holding that the statute could apply to independent contractors, because independent contractors could hold a position of public trust. We granted defendant's delayed application for leave to appeal. The circuit court reviews a district court's decision to dismiss charges for an abuse of discretion, and we review the circuit court's determination on such a matter de novo. People v Bylsma, 493 Mich. 17, 26; 825 N.W.2d 543 (2012). We likewise review de novo questions of statutory interpretation, including the constitutionality of statutes. People v Buehler, 477 Mich. 18, 23; 727 N.W.2d 127 (2007); People v Douglas, 295 Mich.App. 129, 134; 813 N.W.2d 337 (2011).

         In People v Waterstone, 296 Mich.App. 121, 131-132; 818 N.W.2d 432 (2012), this Court recited the governing standards of review and the controlling principles of statutory construction:

This Court reviews for an abuse of discretion both a district court's decision to bind a defendant over for trial and a trial court's decision on a motion to quash an information. A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. A trial court necessarily abuses its discretion when it makes an error of law. This Court reviews de novo questions of statutory construction.
[The] Michigan Supreme Court [has] recited the well-established principles that govern our interpretation of a statute[, stating as follows]:
"The overriding goal of statutory interpretation is to ascertain and give effect to the Legislature's intent. The touchstone of legislative intent is the statute's language. The words of a statute provide the most reliable indicator of the Legislature's intent and should be interpreted on the basis of their ordinary meaning and the overall context in which they are used. An undefined statutory word or phrase must be accorded its plain and ordinary meaning, unless the undefined word or phrase is a "term of art" with a unique legal meaning." [Citations and quotation marks omitted.]
The parties dispute the construction of various terms employed in MCL 750.478, which provides:
When any duty is or shall be enjoined by law upon any public officer, or upon any person holding any public trust or employment, every willful neglect to perform such duty, where no special provision shall have been made for the punishment of such delinquency, constitutes a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1, 000.00. [Emphasis added.]

For a conviction under this statute, the prosecution must establish (1) that the defendant was a public officer or "any person holding any public trust or employment, " (2) that the defendant had a duty that is "enjoined by law, " and (3) that the defendant willfully neglected to perform such duty. MCL 750.478; People v Medlyn, 215 Mich.App. 338, 340-341; 544 N.W.2d 759 (1996).

         It is undisputed that defendant is not a "public officer, " and we agree with the district court that defendant is an independent contractor rather than a public employee. Plaintiff offers at most a vague argument to the contrary, and we reject that argument as advocating the complete dissolution of any distinction whatsoever between an employee and a contractor.[1] The district court properly utilized the "economic reality" test, see Buckley v Professional Plaza Clinic Corp, 281 Mich.App. 224, 233-236; 761 N.W.2d 284 (2008), and determined, based on several provisions of ...


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