Author(s): John J. Gillooly, Matthew LaBeau

From the Editor by John J. Gillooly

‘Tis the Season…
A sure sign that the holiday season is in full swing is the number of questions we get from municipal clients about holiday parties and gifts. To avoid legal and ethical problems during this time of giving, please keep the following pointers in mind:

The Spending Rules. A municipality’s authority to spend money comes either the Michigan Constitution or the Michigan Compiled Laws: A municipality may only spend money for a public purpose. A public purpose exists when the money spent confers a direct benefit of a general character to a significant part of the public.

May a municipality spend public monies on holiday parties, gifts, or donations to charities? We strongly recommend not doing so. The same rules prohibit the use of public funds to buy birthday cakes, flowers, lunches, or to throw a great local leader a retirement party. In deciding whether to spend public monies, ask yourself: Is the money spent for a legitimate public purpose relating to the reasons why a municipality exists? If the answer is no, save yourself a lot of grief: Take up a collection for the gift. Do not write a check from your general fund.

May a government employee accept a gift of cash or services from a resident?
Michigan law addresses the obvious concern that allowing public officials to accept gifts from members of the community could influence them to treat those persons more favorably while carrying out their official civic duties:

  • A public officer or employee shall not solicit or accept a gift or loan of money, goods, services, or other thing of value . . . which tends to influence the manner in which the public officer or employee . . . performs official duties. MCL 15.342(4).
  • [A] public officer or employee shall not engage in or accept employment or render services for a private or public interest when that employment or service is incompatible or in conflict with that discharge of the officer or employee’s official duties or when that employment may tend to impair his or her independence of judgment or action in the performance of official duties. MCL 15.342(6).

Kindly thank the giver, but refuse the gift. While residents or businesses that do business in your municipality may have good intentions in offering cash or other items of value to an employee, Michigan law disfavors the acceptance of such items on an individual basis. Please do not hesitate to call me directly if you have any questions. Most importantly, GLM hopes that you and yours have a very safe, happy, and healthy holiday season.

MUNICIPAL LAW UPDATE by Matthew LaBeau

Governmental Immunity/Public Building Exception
Plaintiff was visiting the Michigan Library and Historical Center in Lansing, Michigan. While descending a two step stairway, she tripped and fell to the floor level of the museum. Plaintiff suffered injuries to her left knee and femur. Plaintiff filed suit alleging negligence and claimed the public building exception to governmental immunity. Defendant moved for summary disposition arguing the stairway was part of a removable exhibit and not part of the building itself. Defendant’s motion was denied. The Court of Appeals affirmed, finding a question of fact on the issue. Even though an affidavit of the museum director indicated the stairs were temporary and would be removed and Plaintiff presented evidence the stairway was in place for 21⁄2 years, there was not enough evidence to conclude that the stairway was, or was not, a fixture to the building. Craig v State of Michigan, unpublished per curiam opinion of the Michigan Court of Appeals, dated May 24, 2007 (Docket No. 273738).

First Amendment
Plaintiff went to Executive Judge Zubaty’s office to complain about a proposed county payroll tax. Plaintiff criticized the proposed tax and yelled insults. Defendant Baker asked plaintiff to leave, and she refused. Authorities had to remove Plaintiff and arrested her for trespassing. She was eventually acquitted. Plaintiff brought suit against Defendants Zubaty, Baker, and the officers involved in her arrest, claiming the criminal arrest and charges were an attempt to intimidate her from speaking out against matters of public concern. The Sixth Circuit Court of Appeals affirmed summary judgment for defendants, finding there was no constitutional violation. Even though plaintiff was on public property, she was not in a public fora under the First Amendment. The Court found the government’s actions reasonable because Baker could not do work or return phone calls as Plaintiff was talking and swearing loudly outside of his office. Helms v Zubaty, 495 F.3d 252 (6th Cir. 2007)

Executive Immunity
Defendant Mayor David’s predecessor appointed Plaintiff as City Administrator. She was appointed with the understanding that she was an at will employee, served at the pleasure of the mayor, and if a new mayor came in, she could be fired. Defendant David won election as mayor and fired Plaintiff. Plaintiff filed suit alleging she was wrongfully terminated because she would not assist in firing the police chief without just cause and her firing was in retaliation for a previous sexual harassment complaint brought by Plaintiff against Defendant David. The trial court granted defendant summary disposition and the Michigan Court of Appeals affirmed, finding that the City charter clearly stated the head of any department served at the discretion of the mayor and must be reappointed after each election. Motive was irrelevant because the actions were within executive authority. Manns v David, unpublished per curiam opinion of the Michigan Court of Appeals, dated June 19, 2007 (Docket No. 274062).

FOIA/Frank Communication Exception
Defendant City of Detroit’s police chief directed a board to investigate the perceived problem of police misconduct, particularly by a specific officer. As a result of this investigation, the Shoulders report was generated, detailing misconduct in the specific officer’s background. Plaintiff was a reporter who sought a copy of the Shoulders report through a FOIA request. Defendant City of Detroit denied the request under the frank communication exception to FOIA, which exempts disclosure of communications and notes preliminary to a final agency determination of policy or action. Plaintiff subsequently filed suit for violation of FOIA. The trial court ordered the deliberative portions of the report be redacted and ordered the factual material to be disclosed. Both sides appealed. The Michigan Court of Appeals reversed and remanded, finding the Shoulders report was preliminary to final agency determination, but not currently preliminary, therefore the report was not exempt. The Michigan Supreme Court reversed the Court of Appeals. The Supreme Court held that, based on the text of the statute, information is exempt under the frank communication exception to FOIA if it was preliminary at the time of creation. Bukowski v City of Detroit, 478 Mich. 268 (2007).

Governmental Immunity/Motor Vehicle Exception
Plaintiff was injured while getting off of a Capitol Area Transportation Authority (CATA) bus when the door closed on her foot, causing her to fall to the pavement. Plaintiff filed suit arguing Defendant was liable under the motor vehicle exception to governmental immunity and the driver was grossly negligent. Defendant moved for summary disposition, arguing the motor vehicle exception did not apply because the vehicle was not moving at the time of the accident and closing doors was not associated with the operation of a bus as a motor vehicle. Defendant also argued reasonable minds could not disagree that the driver’s action did not rise to the level of gross negligence. The trial court denied Defendant’s motion and the Court of Appeals affirmed. The Court of Appeals found the motor vehicle exception did apply. While the bus was stopped momentarily, the driver closed the doors in order to go forward and the bus could not physically go forward unless the doors were shut. The Court also found that Plaintiff’s deposition revealed a question of fact regarding the driver’s gross negligence. When Plaintiff fell, she could hear passengers yelling at the driver to stop, but the driver did not stop. The driver hit the brakes momentarily, then proceeded forward. Fundunburks v Capitol Area Transportation Authority, unpublished per curiam opinion of the Michigan Court of Appeals, dated May 31, 2007 (Docket No. 274928).

42 U.S.C. 1983/Qualified Immunity
Plaintiff’s decedent experienced an epileptic seizure. His grandmother called 911. Defendants were EMS personnel for the City of Nashville. They arrived at the scene and restrained decedent by applying their body weight to his head, neck, shoulders, arms, torso, and legs to keep him from moving. They also tied his hands and ankles behind his back. No precautions were made to ensure he had a clear passage to breathe, and he passed away shortly after being restrained. Plaintiff filed suit, claiming defendants violated decedent’s Fourth and Fourteenth Amendment rights claiming excessive force, failing to provide medical attention, and failing to protect his from other emergency actions. Defendants moved for summary judgment claiming qualified immunity. The trial court denied this motion. The Sixth Circuit Court of Appeals reversed. While defendants badly botched their attempts to help decedent, improper medical treatment, standing alone, does not violate the Fourth or Fourteenth Amendment. The custody exception to this rule did not apply because he was not taken into custody. The state created danger exception to this rule did not apply because Defendants’ actions did not expose his to private acts of violence. Peete v Metropolitan Government of Nashville, 486 F.3d 217 (6th Cir. 2007).

Religious Land Use and Institutionalized Persons Act (RLUIPA)/Equal Protection
Plaintiff ran a daycare center at the Domino Farms Office Park. Plaintiff informed Defendant Ann Arbor Charter Township of its intention to open a K-3 school on the property. The property was zoned office park and a daycare facility was an approved use, but only for children of office park employees. The Township previously granted a use variance to Rainbow Rascals, which permitted children of non-office park employees to attend the Rainbow Rascals daycare program. Plaintiff was a Catholic daycare program, Rainbow Rascals was a non-religious school. Defendant Ann Arbor Charter Township denied Plaintiff’s proposed use of the property. The Zoning Board of Appeals rejected Plaintiff’s appeal. Plaintiff filed suit alleging violation of the RLUIPA and equal protection. The trial court granted summary disposition in favor of Defendants on both claims. Plaintiffs appealed. The Michigan Court of Appeals reversed the trial court and remanded the case for entry of judgment in favor of Plaintiff. On the RLUIPA claim, the Court found that Defendant’s actions placed a burden on plaintiff’s religious exercise and found that plaintiff failed to present any evidence revealing a compelling governmental interest in denying the variance. On plaintiff’s equal protection claim, defendants did not dispute that Rainbow Rascals and Plaintiff were similarly situated and offered no reason why it allowed Rainbow Rascals to operate and denied the same opportunity to Plaintiff. The Court held that Defendant treated a secular school more favorably than a religious one. Shepard Montessori Center Milan v Ann Arbor Charter Township, 275 Mich.App. 597 (2007).