By Ben Solis
Gongwer News Service
The Emmet Circuit Court was tasked with a redo of proceedings after the Court of Appeals on Tuesday unanimously vacated challenged rulings in a dual whistleblower and wrongful termination lawsuit involving the city of Harbor Springs and its former assistant city manager.
In an unpublished per curiam opinion released Wednesday, the panel in Potter v. Harbor Springs (COA Docket No. 36718) vacated the trial court’s ruling for summary disposition and remanded the case for further proceedings. The panel included Judge Stephen Borrello, Judge James Redford and Judge Sima Patel.
The employment dispute involved some interplay between the Veterans Preference Act and the Whistleblower’s Protection Act. The plaintiff is an honorably discharged veteran of the U.S. Air Force who was hired in 2018 as an assistant city manager under now-retired city manager. A new city manager took the helm in 2019.
Two years later, a debate arose over moving the city’s county’s Chamber of Commerce into a city-owned building, to which the plaintiff objected. He was tasked with a feasibility study and the development of a pros-cons list, which led him to confirm that a Michigan land and water conservation grant agreement was in place on the land. An email to the Department of Natural Resources confirmed there would be a problematic conflict moving the Chamber of Commerce there due to associated restrictions.
During those conversations via email, the plaintiff notified that the city had allowed a large commercial barge business to operate from its public boat launch. He informed the city manager of those conversations, and that the DNR had told him the barge business could no longer operate from the public boat launch.
The city manager was ordered to cease communication with DNR and concluded the emails contained false statements, improper disclosures of confidential information and had injected a personal agenda into the communications. At first the city manager indicated he would not terminate the plaintiff’s employment over the emails, but a day later, he verbally terminated him.
A factual dispute over some coarse words and raised voices arose in the wake of that conversation, with each side saying they had yelled at one another.
The plaintiff asserted to the city clerk and city attorney that his military veteran honorable discharge status entitled him to a hearing under the VPA before his employment could be terminated. He also claimed the city manager violated his rights under the act.
The city’s mayor affirmed the request for a hearing but said the VPA does not apply to the heads of departments or first deputies of department heads, such as the plaintiff. Still, the mayor promised a hearing.
Factual disputes arose over whether he was in fact a first deputy and whether he could be terminated at-will, as well as disputes over how much work the plaintiff actually did his role. His termination was ultimately affirmed, and the plaintiff filed a lawsuit in the Emmet Circuit Court, asserting violations of the veterans’ protection – but also – the whistleblower’s acts, as well as a breach of contract complaint.
The whistleblower portion dealt with the plaintiff’s assertion that he was retaliated against for engaging in protected activities.
Both parties sought summary disposition, and the circuit court after hearing oral arguments denied the motions for summary disposition on the veterans’ protection claim even though the court found the plaintiff was not a first deputy outside the scope of the VPA based on an affidavit. The court found the plaintiff’s claim credible but determined summary disposition in favor of either party was inappropriate because the parties had different accounts of how the termination meeting commenced. Facts in dispute meant the case could not be dismissed quite yet.
The whistleblower claim was disposed of in favor of the city to the extent that the communications with the DNR did not constitute protected activity because they contained factual inaccuracies about the barge operation, as there was no evidence the business had violated any laws and the chamber had not yet moved into the building.
The trial court said a decision on the case turned on the outcome of the veterans’ protection claim and wouldn’t rule on the dismissal until that was resolved.
The breach of contract claim was disposed in favor of the city.
A motion to reconsider its decision on the whistleblower claim was denied because the plaintiff wanted to amend his complaint to add federal claims, which the court said would muddy the waters and undermine the remedies established by the veterans’
protection statute.
Both parties appealed the rulings.
The appellate panel in Potter ultimately vacated each ruling except the breach of contract claim because it was not appealed.
“The circuit court, on summary disposition, engaged in an assessment of whether the plaintiff and (a DNR officer) were correct in their beliefs. Such assessment was not based on any legal authority regarding the uses of the park docks and building and not based on any requirement under the WPA that a plaintiff’s assessment of the legality of the conduct reported must actually be correct as opposed to merely not being knowingly false,” the panel wrote. “The circuit court’s assessment attempted to resolve the factual ambiguities that appear in the email conversation, which is improper on summary disposition. The trial court’s ruling in this respect is therefore vacated.”
The remainder of the court’s analysis on the whistleblower claim flowed from an erroneous understanding and application of the veterans’ protection statute, which aided the plaintiff’s erroneous motion to amend his complaint.
Both of those rulings were also vacated so the court could address the issue under the proper legal framework.
Gongwer News Service
The Emmet Circuit Court was tasked with a redo of proceedings after the Court of Appeals on Tuesday unanimously vacated challenged rulings in a dual whistleblower and wrongful termination lawsuit involving the city of Harbor Springs and its former assistant city manager.
In an unpublished per curiam opinion released Wednesday, the panel in Potter v. Harbor Springs (COA Docket No. 36718) vacated the trial court’s ruling for summary disposition and remanded the case for further proceedings. The panel included Judge Stephen Borrello, Judge James Redford and Judge Sima Patel.
The employment dispute involved some interplay between the Veterans Preference Act and the Whistleblower’s Protection Act. The plaintiff is an honorably discharged veteran of the U.S. Air Force who was hired in 2018 as an assistant city manager under now-retired city manager. A new city manager took the helm in 2019.
Two years later, a debate arose over moving the city’s county’s Chamber of Commerce into a city-owned building, to which the plaintiff objected. He was tasked with a feasibility study and the development of a pros-cons list, which led him to confirm that a Michigan land and water conservation grant agreement was in place on the land. An email to the Department of Natural Resources confirmed there would be a problematic conflict moving the Chamber of Commerce there due to associated restrictions.
During those conversations via email, the plaintiff notified that the city had allowed a large commercial barge business to operate from its public boat launch. He informed the city manager of those conversations, and that the DNR had told him the barge business could no longer operate from the public boat launch.
The city manager was ordered to cease communication with DNR and concluded the emails contained false statements, improper disclosures of confidential information and had injected a personal agenda into the communications. At first the city manager indicated he would not terminate the plaintiff’s employment over the emails, but a day later, he verbally terminated him.
A factual dispute over some coarse words and raised voices arose in the wake of that conversation, with each side saying they had yelled at one another.
The plaintiff asserted to the city clerk and city attorney that his military veteran honorable discharge status entitled him to a hearing under the VPA before his employment could be terminated. He also claimed the city manager violated his rights under the act.
The city’s mayor affirmed the request for a hearing but said the VPA does not apply to the heads of departments or first deputies of department heads, such as the plaintiff. Still, the mayor promised a hearing.
Factual disputes arose over whether he was in fact a first deputy and whether he could be terminated at-will, as well as disputes over how much work the plaintiff actually did his role. His termination was ultimately affirmed, and the plaintiff filed a lawsuit in the Emmet Circuit Court, asserting violations of the veterans’ protection – but also – the whistleblower’s acts, as well as a breach of contract complaint.
The whistleblower portion dealt with the plaintiff’s assertion that he was retaliated against for engaging in protected activities.
Both parties sought summary disposition, and the circuit court after hearing oral arguments denied the motions for summary disposition on the veterans’ protection claim even though the court found the plaintiff was not a first deputy outside the scope of the VPA based on an affidavit. The court found the plaintiff’s claim credible but determined summary disposition in favor of either party was inappropriate because the parties had different accounts of how the termination meeting commenced. Facts in dispute meant the case could not be dismissed quite yet.
The whistleblower claim was disposed of in favor of the city to the extent that the communications with the DNR did not constitute protected activity because they contained factual inaccuracies about the barge operation, as there was no evidence the business had violated any laws and the chamber had not yet moved into the building.
The trial court said a decision on the case turned on the outcome of the veterans’ protection claim and wouldn’t rule on the dismissal until that was resolved.
The breach of contract claim was disposed in favor of the city.
A motion to reconsider its decision on the whistleblower claim was denied because the plaintiff wanted to amend his complaint to add federal claims, which the court said would muddy the waters and undermine the remedies established by the veterans’
protection statute.
Both parties appealed the rulings.
The appellate panel in Potter ultimately vacated each ruling except the breach of contract claim because it was not appealed.
“The circuit court, on summary disposition, engaged in an assessment of whether the plaintiff and (a DNR officer) were correct in their beliefs. Such assessment was not based on any legal authority regarding the uses of the park docks and building and not based on any requirement under the WPA that a plaintiff’s assessment of the legality of the conduct reported must actually be correct as opposed to merely not being knowingly false,” the panel wrote. “The circuit court’s assessment attempted to resolve the factual ambiguities that appear in the email conversation, which is improper on summary disposition. The trial court’s ruling in this respect is therefore vacated.”
The remainder of the court’s analysis on the whistleblower claim flowed from an erroneous understanding and application of the veterans’ protection statute, which aided the plaintiff’s erroneous motion to amend his complaint.
Both of those rulings were also vacated so the court could address the issue under the proper legal framework.
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