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Dunleavy v. Wayne County

Dunleavy v. Wayne County

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Published by Beverly Tran
Order and Opinion of Judge Bernard A. Friedman in the matter of Branden Dunleavy, former Auditor General for the Corporation of Wayne County for whistleblowing on fraudulent activities of Commissioner Jewel Ware and other County officials.
Order and Opinion of Judge Bernard A. Friedman in the matter of Branden Dunleavy, former Auditor General for the Corporation of Wayne County for whistleblowing on fraudulent activities of Commissioner Jewel Ware and other County officials.

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Published by: Beverly Tran on Jan 11, 2010
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01/11/2010

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGANSOUTHERN DIVISIONBRENDAN G. DUNLEAVY,Plaintiff,Civil Action No.04-CV-74670-DTvs.HON. BERNARD A. FRIEDMANWAYNE COUNTY COMMISSION, et al.,Defendants.___________________________________/ 
OPINION AND ORDER GRANTING IN PART AND DENYING IN PARTDEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
This matter is presently before the court on two defense motions for summary judgment [docket entries 20 and 21]. The motions have been fully briefed and the court has heardoral argument. For the reasons stated below, the court shall grant the motions in part and deny themin part.
Introduction
This is essentially a whistleblower and First Amendment case. The plaintiff isBrendan Dunleavy, who served for 13 years as an auditor for Wayne County. From 1991 to 1997he served as the Assistant Auditor General, and from 1997 to September 2004 he served as theWayne County Auditor General. In September 2004 his appointment expired and was not renewed.Plaintiff could have been reappointed for at most three more years, as a county ordinance limits theholder of this political position to a maximum of ten years. Plaintiff applied for reappointment, butanother candidate was selected instead.
Case 2:04-cv-74670-BAF-RSW Document 51 Filed 03/30/2006 Page 1 of 17
 
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The references in this opinion to allegations in the complaint refer to the originalcomplaint. Plaintiff filed an amended complaint after defendants filed the summary judgmentmotions at issue in this opinion. The allegations in the original and amended complaints aresubstantively the same, except as regards plaintiff’s RICO claim which the court will address at ahearing scheduled for May 3, 2006.2The main thrust of plaintiff’s complaint is that defendants decided not to renew histerm in retaliation for the fact that plaintiff was successful in ferreting out political corruption andother wrongdoing within the county, which was highly embarrassing to county officials, cityofficials, and politically connected individuals and corporations. At pages 9-15 of the complaint,
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plaintiff presents a detailed chart listing his many investigations and audit findings, the personsinvolved, and the “protected activity” (i.e., plaintiff’s allegedly protected First Amendment activity)connected with each item. This chart covers a wide range of subjects, including such things asirregularities in contracts and other financial matters relating to operations at Detroit MetropolitanAirport (e.g., parking, signage, and construction contracts); nepotism; mismanaged, no-bid, andexpired contracts for various goods and services; improper small business contracts; irregularitiesin county building leases; mismanagement and other wrongdoing regarding county health care and juvenile/family programs; misuse and misappropriation of county funds; and manipulation of countyfinancial statements. Plaintiff also alleges that he was a confidential informant who provided theFBI with information about possible criminal activity he uncovered in the course of theseinvestigations.Plaintiff alleges that in December 2002, approximately one year and nine monthsbefore his term was to expire, the county’s Audit Committee, consisting of five commissioners, withthe concurrence of the Government Committee, consisting of four commissioners, approved a three-year extension to plaintiff’s appointment, which would have extended plaintiff’s term to the full,
Case 2:04-cv-74670-BAF-RSW Document 51 Filed 03/30/2006 Page 2 of 17
 
3allowable ten years. However, Jewel Ware, the commission chairperson, allegedly would not placethe proposed extension on the agenda of the Committee of the Whole. When plaintiff’s termexpired, he applied for the position but the Audit Committee voted to recommend another candidate,Willie Mayo, and the full commission voted unanimously to follow that recommendation. Plaintiff also alleges that Ware, “acting in her individual and official capacity as Personnel Director forWCC, terminated Dunleavy’s active employment but could not legally remove him from hisappointed office.” Complaint ¶ 20. Apparently plaintiff’s term ended on Friday, September 17,2004. Plaintiff returned to work the following week as, in his words, a “hold-over appointee” untilhis replacement was appointed. On Tuesday, September 21, 2004, defendant Ware instructedplaintiff to leave. However, it is undisputed that plaintiff continued to receive his full salary andbenefits until his replacement was appointed by the commission on December 1, 2004.Plaintiff alleges that during his tenure as Auditor General he “frequently exercisedhis First Amendment right to speak publicly about matters of public concern or reported to variouspublic bodies and law enforcement agencies actual or suspected violations of law committed byWayne County employees or third-parties associated with Wayne County or participated in variouspublic-body or law enforcement agency hearings or investigations.” Complaint ¶ 25. DefendantWare allegedly disliked plaintiff and complained to others about him because he talked too muchto the press and because he was “too close” to the FBI. As a result of his investigative efforts, andtalking about his findings with the press and the FBI, plaintiff claims Ware entered into a campaignto remove him from office. She allegedly recruited another commissioner, defendant BernardParker, to head a search committee to find plaintiff’s replacement and that Parker, in turn,“threatened at least one commissioner that reelection support would be withheld unless that
Case 2:04-cv-74670-BAF-RSW Document 51 Filed 03/30/2006 Page 3 of 17

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