Author(s): John J. Gillooly, Jami E. Leach, Thomas R. Paxton

From the Editor
by John J. Gillooly

Complimentary Seminars For more than 60 years, Garan Lucow Miller has been providing its clients with what we call “continuing client education”. By teaming up with you and keeping track of current legal issues, many legal expenses are often reduced.

Members of Garan Lucow Miller are on the road nearly every month educating leaders in government, business and the insurance industry about current trends in the law. Our complimentary seminars are widely known as an important tool in recognizing legal trends. Here are a few of our upcoming seminars:

  • Annual Buckeye Conference on Michigan No- Fault Law, February 28, 2006; Columbus, OH
  • Freedom of Information Act Seminar, February 16, 2005; Lansing, MI.
  • Public Act 425 – Economic Development Projects Seminar, March 7, 2006; Lake Odessa, MI
  • Auto Negligence and Worker’s Compensation Seminar, March 30, 2006; St. Louis, MO
  • Auto Negligence and Worker’s Compensation Seminar, March 31, 2006; Kansas City, MO

We can also tailor a seminar to meet your specific needs. Please feel free to call me for further details at 313.446.5501. All our best.

Patronage Dismissals: When Are They Constitutional?

by Jami E. Leach
After each election, employment decisions are made. Whether to fire, refuse to rehire, or to hire must be carefully thought out. Ending someone’s employment because of political affiliation is referred to as a patronage dismissal.

In general, patronage dismissals are unconstitutional. However, party affiliation may be an acceptable requirement for some types of government employment. Branti v. Finkel, 445 U.S. 507 (1980). In order to succeed in such a claim, a plaintiff must prove that he or she was discharged because of his or her political affiliation. The burden then shifts to the defendant to prove that the plaintiff’s job is of the type that would qualify for an exception to the general rule. The Court in Branti described the types of positions that would qualify for the exception as policy making positions. The Sixth Circuit Court of Appeals interpreted Branti by outlining four categories that qualified for the exception:

  • Category One: positions specifically named in relevant federal, state, county, or municipal law to which discretionary authority with respect to the enforcement of that law or the carrying out of some other policy of political concern is granted;
  • Category Two: positions to which a significant portion of the total discretionary authority available to category one position-holders has been delegated; or positions not named in law, possessing by virtue of the jurisdiction’s pattern or practice the same quantum or type of discretionary authority commonly held by category one positions in other jurisdictions;
  • Category Three: confidential advisors who spend a significant portion of their time on the job advising Category One or Category Two position-holders on how to exercise their statutory or delegated policy making authority, or other confidential employees who control the lines of communications to Category One positions, Category Two positions or confidential advisors;
  • Category Four: positions that are a part of a group of positions filled by balancing out political party representation, or that are filled by balancing out selections made by different governmental agents or bodies.

After an election, be very careful about changing a person’s employment status. When in doubt, consult with your municipal attorney before any action is taken. Planning ahead and getting much needed legal advice before taking action will save everyone a lot of time and money in the long run.

Michigan Supreme Court Decides Issue of Non-Employers’ Liability for Sexual Harassment by Thomas Paxton In a case decided on July 26, 2005, the Michigan Supreme Court, in a 4 to 3 decision, held that a common law claim for negligent retention could not be premised upon workplace sexual harassment, and a cashier could not bring claim for sexual harassment against company under the Act. McClements v. Ford Motor Company, 473 Mich 373 (2005).

The plaintiff was a cashier with AVI Food Systems which operated three cafeterias at the Ford Wixom Plant. Plaintiff sued Ford Motor Company as a result of alleged sexual harassment by one of Ford’s employees. The plaintiff claimed that a supervisor at the plant sexually harassed her. The plaintiff also alleged that Ford should have known of his propensities given his convictions for sexually related crimes. The plaintiff brought an action based upon two theories: 1) that Ford Motor Company was negligent in retaining the supervisor as an employer given its knowledge of his sexual propensities and 2) that Ford Motor Company was liable to pay damages under the Michigan Elliot Larsen Civil Rights Act for the sexual harassment of the plaintiff. Ford alleged that it could not be held liable for a “common law” tort of negligence which was based predominantly on an action created by a statute, the Michigan Elliot Larsen Civil Rights Act. The court also held that while the Elliot Larsen Civil Rights Act allows the plaintiff to bring an action against a non-employer defendant, it can only do so if the plaintiff can estab