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

From the Editor

by John J. Gillooly

Campaign Reminders
In just a few days, people around the state will travel to their local polling places to exercise their privilege to vote. Just several days later, if history repeats itself, several lawsuits will be filed alleging illegal use of municipal facilities or equipment in connection with the elections. Most cases are brought under the Michigan Campaign Finance Act and are often very politically charged and should be avoided.

Following these basic ground rules will go a longway toward protecting you and your municipality:

  • It is not proper to use or authorize the use of public funds or resources to make an election contribution.
  • The act also provides that personnel, office space, computers and postage may not be used.
  • A recent Court of Appeals decision allowed sanctions to be imposed against the losing party in an election case.

Garan Lucow Miller is pleased to assist your community with its election processes. Let us help you understand and comply with the Campaign Finance Act.

MUNICIPAL LAW UPDATE

by Jami E. Leach

Highway Exception
The plaintiff, who is blind, tripped on a city sidewalk which had a one and one half inch height differential between slabs. MCL 691.1402a(2) creates a rebuttable inference that the sidewalk was maintained in reasonable repair if the height differential is less than two inches. The city had a policy to repair the sidewalk when the height differential reached 3/4 of an inch or more. However, the Court held that one cannot substitute the city’s policy for the state’s statutorily drawn policy to rebut the inference. In this case, plaintiff did not present evidence sufficient to rebut the presumption and summary disposition was appropriate. Allgaier v City of Warren, Unpublished Court of Appeals No.268102, issued August 22, 2006.

Motor Vehicle Exception
The motor vehicle exception to governmental immunity did not apply where a student started a vehicle during auto-shop class causing an injury to plaintiff. In this case, the student was not the school’s “officer, agent or employee” under the motor vehicle exception. Moreover, the vehicle was not being “operated” when the engine was started, not for driving purposes, but for instructional purposes. Stringwell v Ann Arbor Public Schools, Unpublished Court of Appeals No.264252, issued August 15, 2006.

Public Building Exception
For purposes of the public building exception to governmental immunity, in determining whether an item or area outside the four walls of a building is “of a public building”, the courts should consider whether the item or area where the injury occurred is physically connected to and not intended to be removed from the building. In this case, the alleged defect is the lack of a physical connection between the sidewalk and the covered entryway; therefore, the area complained of is not physically connected to the building and the exception does not apply. The Township is immune. Romans v Highland Twp, Michigan Supreme Court No.130914, issued September 29, 2006.

Gross Negligence
There was a question of fact as to whether the wrestling coach was grossly negligent when he approached plaintiff from behind and, without alerting plaintiff, took him down to the floor and performed two successive rolls resulting in a broken arm. Reaume v Jefferson Middle School, Unpublished Court of Appeals No.268071, issued August 15, 2006.

“The” Proximate Cause
The Chelsea Area Construction Agency (CACA) and two of its employees are entitled to governmental immunity in connection with damages plaintiff sustained because of shoddy construction. Plaintiff claims the defendants allowed the work to pass inspection. The Court held that the two employees were immune because their negligence, or even gross negligence, was not “the proximate cause” of the alleged damages. Rather, “the one most immediate, efficient, and direct cause” was the shoddy workmanship. The Court also held that CACA, which is a public body established pursuant to and in accordance with statutes, was a governmental agency engaged in a governmental function and therefore it too was immune. Chaconas v Lima Township, et al, Unpublished Court of Appeals No.258979, issued August 10, 2006.

Summary disposition to Township and Fire Chief affirmed one more time. The defendants were not liable under state or federal law for the very unfortunate deaths of several children in a house fire. Dean v Childs, Unpublished Court of Appeals No.268921, issued October 3, 2006.

Proprietary Function
Defendant is owned by the City of Flint and is entitled to summary disposition because the proprietary function exception to governmental immunity does not apply. Simply because the defendant competes with private hospitals and is self-supporting does not lead to the conclusion that defendant’s primary purpose is to produce a profit. The City has a legitimate desire to conduct an activity on a self-sustaining basis. Holliday v Hurley Medical Center, Unpublished Court of Appeals No.267614, issued September 26, 2006. Freedom of Information Act (FOIA)

Plaintiff requested documents under the Freedom of Information Act (FOIA) including personnel files of various employees including the file of a friend who was involved in litigation with the defendant. The Defendant denied the FOIA request based upon an exemption for “records or information relating to a civil action in which the requesting party and the public body are parties”. The defendant argued that it was clear the plaintiff submitted the FOIA request to obtain information for her friend who was already in litigation with defendant. In ruling in favor of plaintiff, the court pointed out that initial and future uses of information requested under FOIA are irrelevant. The court admitted that this was indeed an absurd result, however, it was bound by the terms of the unambiguous statute and the personnel files were not exempt. Taylor v Lansing Bd of Water & Light, ___ Mich App ___ (2006).

While a person is entitled to a copy of a public record under FOIA, the municipal employee’s request that a second FOIA request be made before the copy would be furnished did not violate the act. A public body is not required to immediately furnish copies during the inspection of records, but is allowed a reasonable period of time to comply with the request. Yourdan v Brown City Community Schools, Unpublished Court of Appeals No.260419, issued October 3, 2006. ‚ A public body’s duty is to conduct a good faith search for the records requested. A public body is not required to revisit old FOIA requests if documents are discovered later. Yourdan v Brown City Community Schools, Unpublished Court of Appeals No.260419, issued October 3, 2006.

Civil Rights Acts
Plaintiff was the deputy city administrator who was terminated, allegedly in violation of the Whistleblowers’ Protection Act (WPA). There was no violation of the WPA because plaintiff could not prove that he actually reported an impending potential violation of the City Charter to anyone. DeMaagd v City of Southfield, Unpublished Court of Appeals No.267291, issued August 10, 2006.

The Persons with Disabilities Civil Rights Act (PWDCRA) does not impose a duty upon an educational institution to provide an opinion on why a student is having academic difficulties or to diagnose any conditions a student may have. Moreover, a defendant is not liable under the Act simply because it fails to grant some of the requested accommodations, so long as the denial is not unreasonable. Buck v Thomas M. Cooley Law School, ___ Mich App ___ (2006).

The Elliott-Larsen Civil Rights Act (ELCRA) did not apply to plaintiff’s alleged discrimination on the basis of weight claim because he was not an employee but rather an independent contractor. There was no doubt that the position of City Attorney in this instance was an independent contractor position rather than that of an employee/employer. Hacker v. City of Mount Clemens, Unpublished Court of Appeals No.267403, issued September 26, 2006.

Takings
Pursuant to its general police power, the City has the authority to enact regulations that regulate public safety, public health, morality, and law and order. Requiring property owners to connect to a municipal water supply is rationally related to the legitimate government interest of promoting the public health by ensuring a safe and pure water supply. The ordinances do not deprive the property owners of economically viable use of their properties and do not effect an unconstitutional taking. City of Gaylord v Maple Manor Investments, et al., Unpublished Court of Appeals No.266954, issued August 8, 2006.

Plaintiffs failed to make out a case of regulatory taking in connection with zoning ordinances and variances surrounding vacant land they purchased in defendant city. Plaintiffs purchased the lot for $5,500. It was later determined that the lot was not buildable due to its size. That plaintiffs’ own appraisal expert testified that if the lot were buildable it would be worth $160,000 establishes that plaintiffs’ expectations regarding the buildability of the lot were not reasonable. DiCicco v City of Grosse Pointe Woods, Unpublished Court of Appeals No.265163, issued August 8, 2006.

Discovery
Although parties are permitted to obtain all relevant, nonprivileged information through the discovery process, MCR 2.302(B)(1), the judiciary generally may not interfere with a legislative decision-making process by allowing inquiry into the thought processes of legislative officials. This rule does not preclude deposing individual board members, but merely inquiry by plaintiff into the motivations and understandings of the members regarding adoption of the reorganization plan. Goodman v Genesee County, Unpublished Court of Appeals No.266955, issued August 8, 2006.