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THE AUTHORITY OF A MICHIGAN SHERIFF TO DENY LAW ENFORCEMENT POWERS TO A DEPUTY

BY E. FRANK CORNELIUS, PH.D., J.D.*


TABLE OF CONTENTS I. II. III. THE CONTEXT IN WHICH THE ISSUE ARISES ............................. 433 THE LEELANAU COUNTY CIRCUIT COURTS RATIONALE ......... 435 COURTS WITH A DIFFERENT PERSPECTIVE ................................ 440 A. Differing Michigan Federal Cases .................................... 440 B. Differing Michigan State Cases......................................... 444 C. The Wisconsin Solution ..................................................... 449 TIME TO REVIEW COUNTY-SHERIFF CASES .............................. 454 CONCLUSION ............................................................................. 461 I. THE CONTEXT IN WHICH THE ISSUE ARISES This Article explores the authority of a sheriff to deny law-enforcement powers to a deputy under section 51.70 of the Michigan Sheriffs Act, the first sentence of which provides that [e]ach sheriff may appoint 1 or more deputy sheriffs at the sheriff's pleasure, and may revoke those appointments at any time.1 This issue was squarely presented in the proceeding to enforce the award rendered in the arbitration of Police Officers Assn of Michigan & County of Leelanau, Michigan & Its Sheriff.2 The circuit court held that the Arbitrator did not have the authority under the collective bargaining agreement to order the Sheriff to restore [the Deputys] law enforcement powers. Nor does this Court have the authority to enter such an order.3 This case (Leelanau County) is under appeal to the Michigan Court of Appeals.4

IV. V.

* The author received his Ph.D. in Mathematics from the University of Washington and his J.D. from the University of Michigan. His publications are listed on his website, http://www.arbitrator.org. 1. MICH. COMP. LAWS ANN. 51.70 (West 2008). 2. 07-2 Lab. Arb. Awards (CCH) 3926, at 3209 (2007) (Cornelius, Arb.) (initial award); 07-2 Lab. Arb. Awards (CCH) 3927, at 3226 (2007) (Cornelius, Arb.) (supplemental award). The author was the arbitrator. 3. Police Officers Assn of Mich. v. Leelanau County, No. 07-7669-CL, slip op. at 14 (Leelanau County Cir. Ct. Apr. 14, 2008) (order granting summary disposition). 4. Police Officers Assn of Mich. v. Leelanau County, appeal docketed, No. 285132 (Mich. Ct. App. Apr. 29, 2008).

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The arbitration concerned the sheriffs firing of a deputy for, inter alia, allegedly having improper contacts with a criminal suspect who had struck her former boyfriend in the face.5 The deputy was placed on administrative leave while an internal investigation was conducted by the undersheriff.6 Following the conclusion of that investigation, the deputy was terminated.7 A grievance was filed, and ultimately it went to arbitration.8 At the arbitration hearing, the union representing the deputy elicited the following testimony: The undersheriff, who conducted the investigation into the deputys conduct and upon whose report the sheriff had relied in firing the deputy, admitted that he had never told the deputy not to contact the criminal suspect.9 The undersheriff also admitted that he was unable to find any law that the deputy had broken.10 The undersheriff further admitted that the deputy did not compromise the criminal case against the suspect, who pleaded guilty to misdemeanor assault.11 The arbitrator found that the deputys conduct was not substantively different than the conduct held lawful in Sponick v. Detroit Police Department.12 At most, the deputy was guilty of a technical violation of the sheriffs domestic-violence policy and procedure, although even that was not firmly established.13 The arbitrator concluded that the sheriff did not have just cause to discharge the deputy and ordered him made whole and reinstated with back pay and benefits subject to passing a fitness-for-duty

5. Police Officers Assn of Mich., 07-2 Lab. Arb. Awards (CCH) 3926, at 3215. 6. Id. at 3211. 7. Id. at 3212. 8. Id. 9. Id. at 3219. 10. Id. at 3214. 11. Id. at 3218. 12. Id. at 3219 (citing Sponick v. Detroit Police Dept, 211 N.W.2d 674 (Mich. Ct. App. 1973)). 13. The policy and procedure required that domestic violence involve bodily injury or fear thereof. Bodily injury was defined as substantial pain to the victim or impairment of the victims physical condition. LEELANAU COUNTY SHERIFFS DEPT, POLY & PROC. ON DOMESTIC VIOLENCE, 1, 2 (1995). Neither the arbitrator nor the circuit court thought much of the bodily injury supposedly inflicted. The arbitrator wrote that [h]e was not hurt. Police Officers Assn of Mich., 07-2 Lab. Arb. Awards (CCH) 3926, at 3220. The circuit court stated that [t]he complaining witness had minor injury to his face. Police Officers Assn of Mich. v. Leelanau County, No. 07-7669-CL, slip op. at 3 (Leelanau County Cir. Ct. Apr. 14, 2008).

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examination and undergoing counseling.14 The arbitrator authorized the sheriff to assign the deputy duties that did not require law-enforcement powers until the deputy passed the fitness-for-duty exam.15 Finally, [t]he arbitrator retain[ed] jurisdiction to resolve any issues which may arise over implementation of his award.16 The psychologist who conducted the deputys examination found him to be unfit for duty, and the sheriff fired him a second time.17 The union appealed to the arbitrator who, after corresponding with counsel for the parties, ordered that the deputy be put back on the payroll with back pay and interest.18 The arbitrator further directed the parties to follow the procedure in the collective-bargaining agreement for resolving a dispute over fitness for duty.19 Ultimately, the deputy was determined to be fit for duty, but the sheriff refused to restore his law-enforcement powers or to pay interest on the back pay.20

II. THE LEELANAU COUNTY CIRCUIT COURTS RATIONALE


In deciding that neither the arbitrator nor the court itself had the authority to order restoration of the deputys law-enforcement powers, the circuit court relied upon an unpublished opinion of the Michigan Court of Appeals, Police Officers Assn of Michigan v. County of Livingston (Livingston County).21 According to the Michigan Court Rules, an unpublished opinion is not precedentially binding.22 The Livingston County opinion is founded upon three cases: National Union of Police Officers Local 502-M v. Board of Commissioners for the County of Wayne (Wayne County); Fraternal Order of Police, Ionia County Lodge No. 157 v. Bensinger (Ionia County); and Monroe County Sheriff v. Fraternal Order of
14. Police Officers Assn of Mich., 07-2 Lab. Arb. Awards (CCH) 3926, at 3225, 3226; 3927 at 3226. A fitness for duty evaluation is a psychological examination of an active police officer to determine whether the officers mental state is impairing the officers ability to perform police duties. Denhof v. City of Grand Rapids, 494 F.3d 534, 537 n.4 (6th Cir. 2007), rehg and rehg en banc denied. See generally CARY D. ROSTOW & ROBERT D. DAVIS, A HANDBOOK FOR PSYCHOLOGICAL EVALUATIONS IN LAW ENFORCEMENT (2004). 15. Police Officers Assn of Mich., 07-2 Lab. Arb. Awards (CCH) 3926, at 3225-26. 16. Id. at 3226. 17. Police Officers Assn of Mich., 07-2 Lab. Arb. Awards (CCH) 3927, at 3230, 3233. 18. Id. at 3227, 3230, 3233. 19. Id. at 3229, 3230, 3233. 20. Police Officers Assn of Mich. v. Leelanau County, No. 07-7669-CL, slip op. at 7 (Leelanau County Cir. Ct. Apr. 14, 2008). 21. Id. at 13-14 (citing Police Officers Assn of Mich. v. County of Livingston, No. 102038 (Mich. Ct. App. June 30, 1988) (per curiam)). 22. Mich. Ct. R. 7.215(C)(1) (2008).

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Police, Lodge 113 (Monroe County).23 Each of these four county-sheriff cases is readily distinguishable on the ground that none of the collective-bargaining agreements contained a provision comparable to that in the Leelanau County contract: [T]he Arbitrator shall be empowered to return an employee to full duty if his decision is to make the employee whole.24 The Leelanau contract also contained two just cause provisions25 and yet another stating that [e]mployees shall not be required to perform non-police functions as a routine assignment. All duties presently performed shall be defined as meaning police work. Any variations may be made by mutual agreement.26 In Wayne County, the sheriff adopted the trial boards recommendation that a deputy receive a twenty-day suspension, psychiatric evaluation, additional training, and a transfer to a division of the department in which he would be without law-enforcement powers for nine months.27 An arbitrator, affirming the deputys guilt, upheld the . . . suspension, but overturned the order[s] for psychiatric evaluation and additional training and ordered [the deputy] transferred back to his original division in 4 months . . . .28 The sheriff complied with the arbitration award, except that he refused to reassign [the deputy] to his former division, where he [c]ould exercise law
23. County of Livingston, No. 102038, slip op. at 3-4 (Mich. Ct. App. June 30, 1988) (per curiam) (citing Natl Union of Police Officers v. Bd. of Commrs for the County of Wayne, 286 N.W.2d 242 (Mich. Ct. App. 1979); Fraternal Order of Police, Ionia County Lodge No. 157 v. Bensinger, 333 N.W.2d 73 (Mich. Ct. App. 1983); Monroe County Sheriff v. Fraternal Order of Police, Lodge 113, 357 N.W.2d 744 (Mich. Ct. App. 1984) (per curiam)). 24. Police Officers Assn of Mich., 07-2 Lab. Arb. Awards (CCH) 3926, at 3212. The expression, full duty, was not defined in the Leelanau collectivebargaining agreement, which provided that [u]nless otherwise expressly defined in this Agreement, all words shall connote their common meaning. AGREEMENT BETWEEN LEELANAU COUNTY & LEELANAU COUNTY SHERIFF & POLICE OFFICERS ASSOCIATION OF MICHIGAN 0.1 (Dec. 11, 2003) (on file with author) [hereinafter LEELANAU COLLECTIVE BARGAINING AGREEMENT]. Websters Dictionary defines full as, 1. completely filled; containing all that can be held; filled to utmost capacity . . . 2. complete; entire; maximum . . . 3. of the maximum size, amount, extent, volume . . . . RANDOM HOUSE WEBSTERS UNABRIDGED DICTIONARY 774 (2d ed. 2001). It is unclear how a deputy sheriff, who had law-enforcement powers before being wrongly terminated, can be returned to full duty without having those powers restored to him. 25. LEELANAU COLLECTIVE BARGAINING AGREEMENT, supra note 24, 0.1. 26. LEELANAU COLLECTIVE BARGAINING AGREEMENT, supra note 24, 14.1, Non-Police Work. This section and MICH. COMP. LAWS 51.70 were not at issue in the arbitration because the sheriff had not yet refused to restore the deputys lawenforcement powers. It now appears that the deputy may have been assigned permanently to non-police functions within the meaning of the collectivebargaining agreement. 27. County of Wayne, 286 N.W.2d at 244. 28. Id.

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enforcement powers.29 The union and deputy petitioned the Wayne County Circuit Court for a writ of mandamus compelling the sheriff to comply fully with the arbitrators award and to restore [the deputys] law enforcement powers.30 The petition was denied, and the plaintiffs appealed.31 The appellate court set forth three principles that guided its decision: First, the sheriffs power to hire, fire and discipline is not absolute. Rather, his discretion is limited by PERA.32 Second, all terms and conditions of employment are subject to collective bargaining and to any agreement resulting [from bargaining], unless that bargaining or agreement infringes upon matters which are placed within the exclusive power of the sheriff by the [state] constitution. Third, although the sheriffs power to hire, fire and discipline may be limited by the Legislature, the matter of which of his deputies shall be delegated the powers of law enforcement entrusted to him by the constitution is a matter exclusively within his discretion and inherent in the nature of his office, and may neither be infringed upon by the Legislature nor delegated to a third party.33 The court concluded that the legislative delegation of the executive police power to the sheriff may not be limited by a collective bargaining agreement as authorized by PERA, but remains vested exclusively in the sheriff.34 As a result, the arbitrator exceeded his authority under the contract in ordering the sheriff to restore [the deputys] law enforcement powers before the sheriff, in the exercise of his discretion, was prepared to do so.35 An important distinction between Wayne County and Leelanau County is that in the former, the arbitrator agreed with the sheriff that the deputy was deserving of punishment,36 whereas in the latter, the arbitrator disagreed.37 Thus, the issue posed by Leelanau County is whether empowering an arbitrator to return [an employee] to full duty38 constitutes
29. Id. 30. Id. 31. Id. 32. Public Employment Relations Act, MICH. COMP. LAWS ANN. 423.201-17 (West 2008). 33. Wayne County, 286 N.W.2d at 248 (citations omitted). 34. Id. 35. Id. 36. Id. at 244. 37. Police Officers Assn of Mich. v. Leelanau County, No. 07-7669-CL, slip op. at 7 (Leelanau County Cir. Ct. Apr. 14, 2008). 38. Id. at 15.

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an unlawful delegation of the sheriffs authority or merely serves as a check on the sheriffs abuse of his authority. This Article argues that the Leelanau contractual provision is designed to prevent the sheriffs abuse of the power granted to him by section 51.70 of the Michigan Sheriffs Act. In Ionia County, the collective-bargaining agreement contained a justcause provision39 but nothing comparable to Leelanau Countys full-duty provision. An arbitrator found that there was no just cause to discharge a deputy sheriff and ordered him reinstated with back pay and benefits.40 The sheriff declined to obey the arbitrator, and the deputy and his union brought an action in circuit court to enforce the arbitral award.41 The circuit court held that [the sheriff] was not required to reinstate the [deputy] with law enforcement powers but otherwise ordered that [he] be reinstated with full back pay and benefits.42 While acknowledging that the constitutional provision establishing the office of the sheriff seemed to leave the task of defining the powers and duties of a sheriff to the legislature, the court of appeals noted the following: [H]owever, it has been held that the office of sheriff has a known legal character and that the Legislature may not vary the duties and powers of the sheriff in a way which changes the legal character of the office. The theory behind these cases is that if the known legal character of the office is altered, the official can no longer be characterized as a sheriff.43 The court described Wayne County as represent[ing] a delicate balancing of the constitutional roles of the sheriff and the Legislature and found no convincing reason not to follow it.44 Like Wayne County (and unlike Leelanau County), Monroe County was a case in which an arbitrator agreed with the sheriff that a deputy was guilty of wrongdoing and deserving of discipline but reduced the discipline from discharge to reinstatement without back pay under the just-cause provision of the collective-bargaining agreement.45 Again, the contract contained no full-duty provision.46 When the circuit court refused to enforce the award,
39. Fraternal Order of Police, Ionia County Lodge No. 157 v. Bensinger, 333 N.W.2d 73, 74 (Mich. Ct. App. 1983). 40. Id. 41. Id. 42. Id. 43. Id. at 76 (citing Allor v. Bd. of Auditors of Wayne County, 4 N.W. 492 (Mich. 1880); Brownstown Twp. v. Wayne County, 242 N.W.2d 538 (Mich. Ct. App. 1976)). 44. Id. at 77. 45. Monroe County Sheriff v. Fraternal Order of Police, Lodge 113, 357 N.W.2d 744, 746 (Mich. Ct. App. 1984). 46. See id. at 746-47.

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the deputys union appealed.47 The appellate court upheld the arbitrators power to fashion a remedy less than discharge but held that an arbitrator has no authority to order a sheriff to restore a deputys law enforcement powers before the sheriff, in his discretion, is prepared to do so.48 Livingston County, upon which the trial court relied so heavily in Leelanau County, involved an arbitrators authority to reinstate a deputy sheriff as a detective with full law enforcement powers.49 The court of appeals held that reinstate in this context included restoration of lawenforcement powers.50 However, the court interpreted the managementrights provision of the collective-bargaining agreement as reserving the power to delegate law-enforcement powers to the sheriff.51 As previously noted, the contract in Livingston County did not empower the arbitrator to return a deputy to full duty, as did the contract in Leelanau County. The court declined to read Local 1383 of the International Assn of Fire Fighters v. City of Warren (Local 1383)52 as overruling Wayne County, Ionia County, and Monroe County.53 In particular, the court observed that the latter two cases were decided after Local 1383 and that the Michigan Supreme Court denied leave to appeal in Ionia County.54 Thus, the court held that the arbitrator did not have the authority to award the deputy full law-enforcement powers.55

III. COURTS WITH A DIFFERENT PERSPECTIVE


The breadth of a sheriffs authority to deny a deputy law-enforcement powers, as described in the four county-sheriff cases previously discussed, appears to be overstated and there is case law to support this contention. In
47. Id. at 746. 48. Id. at 749. 49. Police Officers Assn of Mich. v. County of Livingston, No. 102038, slip op. at 1 (Mich. Ct. App. June 30, 1988) (per curiam). 50. Id. at 3 (defining reinstate as to restore to a state, condition, position, etc from which one had been removed). Blacks Law Dictionary similarly defines reinstate as [t]o place again in a former state or position; to restore. BLACKS LAW DICTIONARY 1312 (8th ed. 2004). Conditions may be placed upon reinstatement, such as requiring proof of physical or mental fitness. See FRANK ELKOURI & EDNA A. ELKOURI, HOW ARBITRATION WORKS 1238 (6th ed. 2003). 51. Livingston County, No. 102038, slip op. at 7. 52. 311 N.W.2d 702 (Mich. 1981). 53. Livingston County, No. 102038, slip op. at 5. 54. Id. at 6. But see Malooly v. York Heating & Ventilating Corp., 258 N.W. 622, 624 (Mich. 1935), reh. denied (The denial of an application for leave to appeal is ordinarily an act of judicial discretion equivalent to the denial of certiorari. It is held that the denial of the writ of certiorari is not equivalent of an affirmation of the decree sought to be reviewed.) (citations omitted); Great Lakes Reality Corp. v. Peters, 57 N.W.2d 901, 903 (Mich. 1953). 55. Livingston County, No. 102038, slip op. at 7.

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particular, the Leelanau County trial courts statement that not even the court itself could order a sheriff to bestow law-enforcement powers upon a deputy seems clearly erroneous.56 Suppose, for example, that a sheriff refused to grant a deputy law-enforcement powers on account of race or sex. Should suit be filed in federal district court under either federal civil-rights statute,57 there is little doubt that the federal court could and would order the sheriff to do so.58

A. Differing Michigan Federal Cases


In Mata v. County of Barrien, the Federal District Court for the Western District of Michigan brushed aside the argument that the Michigan Constitution insulated the sheriff from suit by an employee under 42 U.S.C. 1983.59 A citizens complaint and a plea of no contest to assault and battery led to a deputy sheriffs termination.60 An arbitrator found that although the deputys conduct violated the sheriff departments policy, the discipline should be reduced to reinstatement without back pay.61 The deputy sued the county and its sheriff in federal district court.62 On defendants motion for summary judgment, the court wrote the following: In Count IV of his amended complaint, Mata alleges that Defendants retaliated against him for filing this action by failing to redeputize him after his reinstatement. To establish a claim of retaliation, Mata must prove the following elements: (1) that he engaged in a protected activity; (2) that Defendants were aware that he exercised [h]is right to engage in such activity; (3) that thereafter, Defendants took an adverse employment action against him; and (4) that there was a causal connection between the protected activity and the adverse employment action. ....

56. For example, in Mich. Labor Mediation Bd. v. Marr, 181 N.W.2d 44, 46 (Mich. Ct. App. 1970), the court summarized the Michigan Sheriffs Associations assertion from its amicus brief: No one has any authority to tell the sheriff what each deputy shall do at a given time except the court or the Governor. (emphasis added). 57. 42 U.S.C. 1981 et seq.; 42 U.S.C. 2000e et seq. 58. See U.S. CONST. art. VI, 2. 59. See No. 1:96-CV-770, 1997 U.S. Dist. LEXIS 19344, *31-32 (W.D. Mich. Oct. 29, 1997). 60. Id. at *3. 61. Id. at *4. 62. Id. at *1.

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THE AUTHORITY OF A MICHIGAN SHERIFF . . . Defendants contend that the Sheriffs authority under the state constitution to determine the duties that a deputy will perform precludes any claim by Mata based upon the Sheriffs failure to redeputize him. . . . .... The Court also rejects Defendants argument that the Sheriffs constitutional authority to determine the duties that a deputy performs precludes Matas retaliation claim. The cases upon which Defendants rely in support of their position, Michigan Labor Mediation Bd. v. Marr, 25 Mich. App. 159, 181 N.W.2d 44 (1970) (per curiam), and Fraternal Order, of Police v. Bensinger, 122 Mich. App. 437, 333 N.W.2d 73 (1983), were concerned only with the extent of a sheriffs power to delegate law enforcement powers to his deputies. Neither case exempts a sheriff from claims of unlawful retaliation under 1983.63

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The summary judgment opinion does not indicate that the deputy asked the district court to order the sheriff to redeputize him. The Federal District Court for the Eastern District of Michigan did order reinstatement of a police officer under 1983 in Solomon v. Royal Oak Township.64 The officer was discharged after he spoke with the media and criticized the deputy police chief.65 He filed suit alleging violations of his right to free speech and deprivations of property and liberty interests without due process of law.66 The court ordered that the officer be reinstated with full back pay and benefits and awarded damages against a defendant who had falsely accused the officer of rape.67 Following a jury trial in Denhof v. City of Grand Rapids, the Federal District Court for the Western District of Michigan gave the defendant city the option of rehiring two female officers who had successfully sued under Title VII, 42 U.S.C. 2000e et seq., for retaliatory discharge.68 The plaintiffs, along with seven other female officers, had brought an unsuccessful suit in state court in an effort to end alleged discrimination, retaliation, and harassment on the job.69 A police psychologist found one of the officers unfit for duty, but the officers own psychiatrist and
63. Id. at *20-23 (citations omitted). 64. 656 F. Supp. 1254 (E.D. Mich. 1986). 65. Id. at 1258-59, 1261. 66. Id. at 1258. 67. Id. at 1267. The damages award for defamation was later remanded for a determination of whether the officer was defamed. Solomon v. Royal Oak Twp., 842 F.2d 862, 863 (6th Cir. 1988). 68. 494 F.3d 534, 549 (6th Cir. 2007), rehg and rehg en banc denied. 69. Id. at 536, 537.

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psychologist strongly disagreed.70 The officer took a job with the Evart Police Department and encountered no difficulties with her work.71 The other officer, whose stress stemmed in part from a fatal shooting, had a similar experience.72 After a two-week trial, the jury awarded each of the plaintiffs one million dollars in compensatory damages as well as back and front pay.73 The appellate court held that there was evidence from which the jury could have found that reliance on the police psychologists fitness reports on the officers was unreasonable, and it affirmed the award of back and front pay.74 The court had this to say about the interplay between front pay and reinstatement: In fashioning the front pay award, the district court ordered that the jury award of $1,276,920 for each plaintiff be paid over time as the plaintiffs would have earned their salaries. This award is to be offset by any earnings the plaintiffs receive if reinstated by the city or if they find comparable employment. If either of the plaintiffs dies or becomes incapacitated before the payout of the entire award, the city is not liable for the balance owed. This approach carefully balances the preferred equitable remedy of reinstatement, with the prospect that the plaintiffs might face future incidents of retaliation if reinstated. The decision to allow the city to decide whether to reinstate the plaintiffs or pay them the salary they would have earned is an appropriately crafted equitable remedy. The city contends that the awards amount to lifetime pay and are unduly speculative, but these arguments are unavailing. We hold that the courts denial of remittitur for the front pay award was not an abuse of discretion.75 The appellate court also affirmed the district courts decision to remit the plaintiffs compensatory awards to $350,000 each.76 Both Simmons v. Stanton77 and Grysen v. Dykstra78 were 1983 suits brought by employees who had run against their sheriff in an election. In Simmons, the former undersheriff successfully defeated the incumbent in the election for sheriff. He then commenced an action in federal district court,
70. 71. 72. 73. 74. 75. 76. 77. 78. Id. at 538. Id. at 539. See id. at 539-42. Id. at 542. Id. at 547. Id. at 548-49 (citation omitted). Id. at 547. 502 F. Supp. 932 (W.D. Mich. 1980). 591 F. Supp. 282 (W.D. Mich. 1984).

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alleging that his discharge was in retaliation for the exercise of rights protected by the First and Fourteenth Amendments guarantee of freedom of expression and association.79 In addition, he claimed that his discharge without a hearing violated his Fourteenth Amendment due-process rights.80 The case was tried before the court without a jury.81 The district court held that the defendants discharge of the plaintiff violated his First and Fourteenth Amendment rights and awarded damages.82 The court dismissed the former sheriffs statutory defenses with these words: The defendant here argues in defense of his action in discharging the plaintiff that the provisions of M.C.L.A. 51.70 and 51.71 create an unrestricted right in the sheriff to discharge a deputy sheriff and/or an undersheriff from his public employment, at the pleasure of the sheriff. The statutes provide: Each sheriff may appoint 1 or more Deputy Sheriffs at his pleasure, and may revoke such appointment at any time . . . . ( 51.70). The sheriff of each county shall . . . appoint some proper person undersheriff of the same county, who shall also be a general deputy, to hold during the pleasure of such Sheriff . . . . ( 51.71). However broad and unbridled the discretion of the sheriff may be in the exercise of his power to discharge under the above statutes, he may not do so in retaliation for the exercise by an employee of his right to free speech.83 In Grysen, the federal district court similarly dismissed the sheriffs standard statutory defense with the following: Plaintiffs filed grievances over their non-reappointment under their collective bargaining contract. They were unsuccessful. It is not disputed that the arbitrators decision upholding the non-appointment under the Sheriffs Act, M.C.L.A. 51.70; M.S.A. 5.863, in no way bars this courts obligation to decide whether plaintiffs rights under

79. 80. 81. 82. 83.

Simmons, 502 F. Supp. at 934. Id. at 938. Id. at 933. Id. Id. at 935 (citations omitted).

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the first amendment were violated by their nonreappointment.84 The plaintiffs, former deputies, had lost to their sheriff in a primary election.85 There is no indication in the district courts opinion that they contested the arbitrators decision. The court awarded damages for lost wages and emotional distress.86

B. Differing Michigan State Cases


In Locke v. County of Macomb (Macomb County), a deputy sheriff was suspended and received the following letter from the sheriff: As of September 11, 1968, you are hereby suspended until further notice, pending the outcome of the charges for which you were arrested on this date.87 The charges for which you were arrested on this date refer[red] to the sheriffs complaint of the crime of falsifying a police report.88 At trial in district court in January 1969, the deputy was found not guilty.89 After his acquittal, the deputy applied for reinstatement, which the sheriff denied.90 The deputy then sought reinstatement through the countys Civil Service Commission, but the Commission declined jurisdiction.91 He then sought, inter alia, a writ of mandamus against the sheriff and the county, which the trial court denied.92 The Michigan Court of Appeals held that the trial court erred in holding that removal of deputy sheriffs by a sheriff was completely discretionary; it then reversed and remanded for relief accordingly.93 The appellate court reasoned that section 51.70 of the Michigan Sheriffs Act must be construed in light of section 51.351 and that the latter civil-service statute precluded the sheriff from removing the deputy except for cause and after the deputy receives a written statement of charges within ninety days of the violation.94 The Michigan Supreme Court agree[d] with
84. Grysen v. Dykstra, 591 F. Supp. 282, 285 (W.D. Mich. 1984). 85. Id. at 282. 86. Id. at 292-93. 87. 199 N.W.2d 166, 166 (Mich. 1972). 88. Id. at 166-67. 89. Id. at 167. 90. Id. 91. Id. 92. Id. 93. Locke v. County of Macomb, 187 N.W.2d 500, 501 (Mich. Ct. App. 1971). 94. Id. MICH. COMP. LAWS ANN. 51.351 (West 2008) provides that there may be created a civil service commission in sheriffs departments in all counties containing not less than 400,000 population. Furthermore, MICH. COMP. LAWS ANN. 51.362 (West 2008) states the following: No member of any department within the terms of this act shall be removed, discharged, reduced in rank or pay or suspended, or otherwise punished, except for cause, and in no event until he

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the Court of Appeals that the provisions of [section] 51.351 et seq. . . . superseded . . . [section] 51.70, . . . upon the adoption of a Civil Service system under its provisions and held that the former deputy was entitled to reinstatement with pay.95 The high court went further by reading the civilservice statute as applying to any employee discipline, not just discharge.96 A statute prohibiting the discharge of an employee based upon the result of a polygraph examination was held to supersede section 51.70 in Cyrus v. Calhoun County Sheriff.97 Deputies in that case alleged that they were discharged as a result of a polygraph examination in violation of the Forensic Polygraph Examiners Act, section 338.1726(2),98 which provides that [a]n employer or agent shall not discharge an employee solely because of an alleged or actual opinion that the employee did not tell the truth during a polygraph examination, lie detector test, or similar test.99 The Michigan Court of Appeals stated the issue as follows: Does the so-called polygraph statute limit a sheriffs ability to dismiss his deputies?100 The court adopted the rationale of Macomb County and applied the well-established rules of statutory construction, that a specific statute takes precedence over a general one and that a later statute repeals an earlier inconsistent one pro tanto, [in] hold[ing] that the polygraph statute does limit the sheriffs power to dismiss his deputies.101 The strongest statement in support of this Articles thesis comes from the Michigan Court of Appeals in Local 1518, Council 55, American Federation of State, County & Municipal Employees v. Meharg (St. Clair County),102 where the court wrote the following: The expressed reason why PERA should take precedence over the county civil service act argues as strongly for PERAs precedence over the statute on which defendants rely. We hold that a collective bargaining agreement validly

shall have been furnished with a written statement of the charges and the reasons for such actions. All charges shall be void unless filed within 90 days of the date of the violation. 95. Locke v. County of Macomb, 199 N.W.2d 166, 168, 169 (Mich. 1972). 96. Id. at 169. 97. 271 N.W.2d 249, 251 (Mich. Ct. App. 1978). 98. Id. at 250. 99. Id. (quoting MICH. COMP. LAWS 338.1726(2) (repealed 1983)). 100. Id. 101. Id. at 251 (citing County of Macomb, 199 N.W.2d 166 (Mich. 1972); Breitung v. Lindauer, 37 Mich. 217 (1877); Jackson v. Mich. Corr. Commn, 21 N.W.2d 159 (Mich. 1946); Civil Serv. Commn for Wayne County v. Wayne County Bd. of Supervisors, 184 N.W.2d 201 (Mich. 1971)). 102. 258 N.W.2d 168 (Mich. Ct. App. 1977), revd on other grounds, 281 N.W.2d 313 (Mich. 1979).

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adopted under PERA diminishes pro tanto the pre-existing statutory authority of a sheriff over his employees.103 As in Grysen, a deputy had run for sheriff against the incumbent and lost.104 The sheriff notified the deputy that he would not be appointed for the next term because of unsatisfactory job performance, and the deputys union filed suit in circuit court.105 The sheriff, of course, interposed section 51.70 of the Michigan Sheriffs Act in his defense, and the circuit court denied the deputy relief.106 The deputy argued that he should be allowed to contest the sheriffs action under the collective-bargaining agreement.107 The appellate court held that Act 312 of the Public Acts of 1969, which provides for compulsory binding arbitration of disputes involving public police or fire department employees, [applied] to grievance disputes as well as to disputes arising in precontract negotiations.108 The court further held that because the Act made arbitration of disputes compulsory, the deputy was entitled to arbitrate his dispute even though the labor contract did not provide for compulsory arbitration.109 The Michigan Supreme Court reversed the court of appeals in St. Clair County, albeit on different grounds, holding that Act 312 had been amended to clarify that it applied only to interest arbitration and not to the grievance arbitration that the deputy sought.110 Justice Williams penned a lengthy and vigorous dissent with which one colleague agreed. The dissent concluded as follows: Viewing the contrasting intentions of the Legislature with respect to the PERA police/fire department mediation/ arbitration provision and the sheriff deputy removal statute as a whole, as well as the specific provision of the two statutes, we believe there is a strong legislative intention to support the morale of sheriffs department employees by giving them some protection in their jobs and this intention is directly repugnant to the idea that sheriffs can discharge deputies at pleasure without notice and hearing and without good cause.

103. Id. at 170 (referring to MICH. COMP. LAWS ANN. 51.70 (West 2008)). 104. Id. at 169. 105. Id. 106. Id. at 168, 170. 107. Id. at 169-70. 108. Id. at 171 (citations omitted). 109. Id. 110. Local 1518, Council 55, Am. Fedn of State, County & Mun. Employees v. Meharg, 281 N.W.2d 313, 318 (Mich. 1979).

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THE AUTHORITY OF A MICHIGAN SHERIFF We therefore conclude (1) that M.C.L. 423.233; M.S.A. 17.455(33), the police/fire department mediation/ arbitration statute as of the time of the instant case superseded pro tanto M.C.L. 51.70; M.S.A. 5.863, the deputy sheriff appointment and removal statute, (2) that Council No. 23, Local 1905, AFSCME v. Recorders Court Judges, 399 Mich. 1, 248 N.W.2d 220 (1976), and the decision in the Court of Appeals and in this Court can be reconciled; and (3) that since we have decided the PERA takes precedence, it is not necessary to determine the second question in the limited grant predicated on M.C.L. 51.70; M.S.A. 5.863 taking precedence. It is noted that this decision applies to grievance disputes occurring prior to the effective date of 1977 P.A. 303 which amends the language herein interpreted.111

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In Police Officers Assn of Michigan v. County of Manistee,112 decided after the four county-sheriff cases previously discussed, the court of Appeals appeared to have reached a result different from those earlier cases. In this most recent case, the sheriff terminated a corrections officer113 for violations of department rules and regulations.114 The dispute over the officers termination went to arbitration, where the arbitrator concluded that the officer had violated department rules and regulations as alleged.115 However, while concluding that [the officers] conduct constituted just cause for severe disciplinary action, the arbitrator concluded that persuasive mitigating factors warranted a reduction in the penalty from termination to a
111. Id. at 322 (Williams, J., dissenting). 112. 645 N.W.2d 713 (Mich. Ct. App. 2002) (per curiam), appeal denied, 653 N.W.2d 413 (Mich. Oct. 29, 2002) (No. 121250) (table decision). 113. Corrections officer is not defined in MICH. COMP. LAWS, Chapter 51, Sheriffs. Presumably under MICH. COMP. LAWS ANN. 51.75 (West 2008), a corrections officer may or may not be a deputy sheriff: The sheriff shall have the charge and custody of the jails of his county, and of the prisoners in the same; and shall keep them himself, or by his deputy or jailer. Likewise jailer is undefined. But see MICH. COMP. LAWS ANN. 791.532(e) (West 2008): Local corrections officer means any person employed by a county sheriff in a local correctional facility as a corrections officer or that persons supervisor or administrator. A deputy sheriff was offered the position of jail turnkey in Mich. Labor Mediation Bd. v. Marr, 181 N.W.2d 44 (Mich. Ct. App. 1970), and the jail guard was not deputized in Mata v. County of Barrien, No. 1:96-CV-770, 1997 U.S. Dist. LEXIS 19344, at *21 (W.D. Mich. Oct. 29, 1997). Failure to deputize an employee after an arbitrator orders reinstatement may constitute an adverse employment action and may give rise to a claim of unlawful retaliation. Id. at *22. 114. Police Officers Assn of Mich., 645 N.W.2d at 715. 115. Id.

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long-term suspension. The arbitrator ordered that [the officer] be reinstated without back pay or benefits [but] with his seniority intact.116 When the sheriff failed to reinstate the corrections officer, he and his union sued the sheriff and the county in circuit court.117 That court refused to enforce the arbitrators award, and the officer and union appealed.118 The appellate court quoted from Monroe County: Federal courts have taken the view that an arbitrator to whom a claim of discharge without just cause is submitted may, in the absence of language in the collective-bargaining agreement clearly and unambiguously to the contrary, determine that, while the employee is guilty of some infraction, the infraction did not amount to just cause for discharge and impose some less severe penalty. An arbitrators imposition of a less severe penalty is without authority and contrary to the terms of the collectivebargaining agreement where the agreement clearly reserves to the employer, without being subject to review by an arbitrator, the power to discharge for the infraction found by the arbitrator to have been committed. We adopt this approach as our own.119 The court directed entry of an order enforcing the arbitrators award.120 In the penultimate paragraph of its opinion, the court observed that [d]efendants could have reserved the sheriffs statutory authority under MCL 51.70, but they did not clearly do so in the agreement.121 Although the corrections officer is never described as a deputy and although section 51.70 refers only to deputies, the implication seems to be that unless the sheriffs statutory authority under section 51.70 is clearly reserved in the collective-bargaining agreement, then an arbitrator can order reinstatement of a deputy. That, of course, is precisely the question presented in Leelanau County.122

116. Id. 117. Id. 118. Id. 119. Id. at 716 (quoting Monroe County Sheriff v. Fraternal Order of Police, Lodge 113, 357 N.W.2d 744, 748-49 (Mich. Ct. App. 1984) (per curiam)). 120. Id. at 718. 121. Id. at 718 (citing Monroe County, 357 N.W.2d at 748). 122. In Leelanau County, the circuit court interpreted the management-rights clause of the collective-bargaining agreement as reserving statutory authority to the sheriff, although MICH. COMP. LAWS ANN. 51.70 (West 2008) is not expressly referenced in the clause. No. 07-7669-CL, slip op. at 14 (Leelanau County Cir. Ct. Apr. 14, 2008). The collective-bargaining agreement provided in pertinent part:

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C. The Wisconsin Solution


The State of Wisconsin has a statute that closely parallels sections 51.70 and 51.71 of the Michigan Sheriffs Act.123 The statute provides, in pertinent part, the following:
[T]he Employer reserves and retains, solely and exclusively, all of its inherent and customary rights, powers, functions and authority of management to manage the Employers operations, and its judgment in these respects shall not be subject to challenge. These rights vested in the Employer include, but are not limited to, those provided by statute or law along with the right to direct, hire, promote, transfer, assign and retain employees in positions within the County consistent with the employees ability to perform the assigned work. LEELANAU COLLECTIVE BARGAINING AGREEMENT, supra note 24, 4.1. There are at least three serious objections to the courts conclusion. First, interpretation of the labor contract is the arbitrators task, not the courts. See Monroe County, 357 N.W.2d at 747-48. Second, the courts reading seems to ignore the well-known rule of contract interpretationthat the specific governs over the general. See ELKOURI & ELKOURI, supra note 50, at 469-70; MARVIN HILL & ANTHONY V. SINICROPI, EVIDENCE IN ARBITRATION 364 (2nd ed. 1987). A management-rights clause is general in nature, whereas the power granted to the arbitrator in 5.10 of the Leelanau contract is very specific: However, the Arbitrator shall be empowered to return an employee to full duty if his decision is to make the employee whole. LEELANAU COLLECTIVE BARGAINING AGREEMENT, supra note 24, 5.10. Most curiously, the Leelanau sheriffs arbitration brief was utterly devoid of any mention of management rights so that the issue of the reservation of the sheriffs MICH. COMP. LAWS ANN. 51.70 authority in the management-rights clause was never presented to the arbitrator. Third, the court failed to apply the rules of limited review as articulated by federal and state appellate courts. As the United States Court of Appeals for the Sixth Circuit explained in Merrill Lynch v. Jaros, [i]f a court can find any line of argument that is legally plausible and supports the award then it must be confirmed. Only where no judge or group of judges could conceivably come to the same determination as the arbitrators must the award be set aside. 70 F.3d 418, 421 (6th Cir. 1995) (citations omitted); see also Zayas v. Bacardi Corp., 524 F.3d 65, 70 (1st Cir. 2008) ([A] court may uphold an arbitral award on grounds or reasoning not employed by the arbitrator himself.) (citations omitted). The court of appeals expressed the limitation in Police Officers Assn of Michigan v. City of Saginaw, as follows: [T]he court reviews only the award made by the arbitrator, not the accompanying discussion or opinion. No. 190830, 1997 WL 33347971, at *1 (Mich. Ct. App. May 16, 1997) (mem.) (citation omitted); see also Anderman/Smith Operating Co. v. Tenn. Gas Pipeline Co., 918 F.2d 1215, 1219 n.3 (5th Cir. 1990) ([T]his Court does not review the language used by, or the reasoning of, the arbitrators in determining whether their award draws its essence from the contract. This Court looks only to the result reached.) (citations omitted). 123. WIS. STAT. 59.26 (1996); this section was renumbered from WIS. STAT. 59.21 (1993) to WIS. STAT. 59.26 (1996). See 1995 WIS. ACT 201, 273. This Article will refer to 59.21, which was in effect when the following cited cases were decided.

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(1) . . . Within 10 days after entering upon the duties of the office of sheriff, the sheriff shall also appoint deputy sheriffs for the county as follows: (a) One for each city and village therein having one thousand or more inhabitants. (b) One for each assembly district therein, except the district in which the undersheriff resides, which contains an incorporated village having less than one thousand inhabitants and does not contain a city or incorporated village having more than one thousand inhabitants. .... (2) The sheriff may appoint as many other deputies as the sheriff may deem proper. (3) The sheriff may fill vacancies in the office of any such appointee, and may appoint a person to take the place of any undersheriff or deputy who becomes incapable of executing the duties of that office. (4) A person appointed undersheriff or deputy for a regular term or to fill a vacancy or otherwise shall hold office during the pleasure of the sheriff. (5) The sheriff or the undersheriff may also depute in writing other persons to do particular acts.124 Wisconsin courts have decided that the statute does not empower a sheriff to hire and fire deputies at will. The pivotal case is State ex rel. Milwaukee County v. Buech, in which the Wisconsin Supreme Court held that a sheriffs power to deputize his officers was not constitutionally protected.125 Constitutionally protected powers were ones recognized to be unique to the office of the sheriff that characterized and distinguished the office.126 The court observed the following: While at common law the sheriff possessed the power to appoint deputies, it was not a power or authority that gave character and distinction to the office. Many other officers as well as sheriffs possessed the power. It was more in the nature of a general power possessed by all officers to a more or less extent, and was not peculiar to the office of sheriff. It should not be held, in our judgment, that the Constitution
124. See In re the Matter of a Certain Arbitration between Brown County Sheriffs Dept v. Brown County Sheriffs Dept Non-Supervisory Employees Assn, 1994 WL 32323, at *3 n.2 (Wis. Ct. App. Feb. 8, 1994) (per curiam), affd, 533 N.W.2d 766 (Wis. 1995). 125. 177 N.W. 781 (Wis. 1920). 126. Id. at 784.

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THE AUTHORITY OF A MICHIGAN SHERIFF prohibits any legislative change in the powers, duties, functions, and liabilities of a sheriff as they existed at common law. If that were true, a constitutional amendment would be necessary in order to change the duties of sheriffs in the slightest degree, and in this respect, the state would be stretched on a bed of Procrustes.127

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The court thus sustained the validity of a statute making a civil-service law applicable to the appointment of sheriffs deputies and requiring the sheriff to abide by an order of the Civil Service Commission to reinstate a dismissed deputy.128 In Heitkemper v. Wirsing, the same supreme court extended Buechs holding to its logical conclusion: the power to dismiss an already appointed deputy is not constitutionally protected.129 In Heitkemper, the sheriff informed his deputy, who was also his political opponent, that he would not be reappointed as deputy for the sheriffs new term.130 The deputy filed a grievance pursuant to the terms of the collective-bargaining agreement to which the sheriff responded with complaints about the deputys work performance.131 A grievance committee found just cause for discipline and imposed a sixty-five-day suspension without pay, after which the deputy was to be reinstated to his former position. The sheriff, citing his constitutional status as an elected official and his statutory power of appointment, refused to reinstate the deputy.132 The deputy filed suit, and the case wound its way to the Wisconsin Supreme Court.133 The sheriff contended that because all of his deputies were conferred law-enforcement and peace-preserving duties, the power to refuse to reappoint the aggrieved employee as a deputy was constitutionally protected and could not be limited by a collective-bargaining agreement.134 Relying on Buech, the Wisconsin Supreme Court characterized the hiring and firing of personnel as mere administrative duties: While internal management and administrative duties such as termination are important, they neither gave character nor distinction to the office of sheriff. Rather, these duties, specifically the power to dismiss, fall within the mundane and common administrative duties of a sheriff which may be regulated by the legislature. See Manitowoc, 168 Wis. 2d at 831, 484 N.W.2d 534 (The legislature may
127. 128. 129. 130. 131. 132. 133. 134. Id. Id. at 783-84. 533 N.W.2d 770, 775 (Wis. 1995). Id. at 771-72. Id. at 772. Id. Id. at 772-73. Id. at 774.

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still regulate the administrative and executive duties of a sheriff, and the collective bargaining agreement will still control wages, hours and conditions of employment).135 The court thus concluded that a collective-bargaining agreement could limit the sheriffs authority to dismiss his deputy.136 The court then turned to the issue of whether the collective-bargaining agreement, which limited the sheriffs authority to dismiss, conflicted with the sheriffs statutory authority under sections 59.21(1) and (4) set forth above.137 The court examined section 59.21(8)(b), which provided in part the following: 1. The persons appointed shall hold the office of deputy sheriff on good behavior. In any county operating under this subsection . . . whenever the sheriff, or undersheriff or a majority of the members of a civil service commission for the selection of deputy sheriffs believes that a deputy has acted so as to show the deputy to be incompetent to perform the duties of deputy sheriff or to have merited suspension, demotion or dismissal, the sheriff, undersheriff or civil service commission shall report in writing to the grievance committee setting forth specifically the complaint against the deputy, and when the party filing the complaint is a sheriff or undersheriff, may suspend or demote the officer at the time such complaint is filed. [The statute continues setting forth the procedure for a grievance including reinstatement if the charges are not well founded].138 The Wisconsin statute quoted above is comparable to section 51.351 of the Michigan Sheriffs Act.139 The Wisconsin Supreme Court observed that the sheriff statute, sec. 59.21, Stats., is replete with limitations on the sheriffs power and that the civil-service provision was just another one of many limitations.140 The court harmonized the various statutory provisions by interpreting the civilservice provision as granting deputies a protected interest in continued employment while they hold office on good behavior.141 Because a collective-bargaining agreement has the same effect, the court concluded

135. 136. 137. 138. 139. 140. 141.

Id. at 775. Id. at 773, 775. Id. at 775. Id. at 775-76. See supra text accompanying notes 87-96. Heitkemper, 533 N.W.2d at 778. Id. at 776-77.

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that the sheriffs powers of appointment could be limited by such an agreement.142 In reaching that conclusion, the court was cognizant of the harmful financial effects that could result if a sheriff could arbitrarily discharge deputies after every election.143 In the case before the court, the county kept the employee on the payroll at his former salary out of concern over requirements in the labor contract.144 The court noted that a grant of unbridled power to the sheriff does not only threaten the county coffers, it threatens the quality of law enforcement in the counties.145 Qualified persons would be discouraged from applying for the position of deputy if they could be fired at the sheriffs whim after each election.146 Finally, the court addressed the sheriffs threat to demote the deputy, which the sheriff argued was a matter of an assignment of duty.147 The court found no reason to distinguish between a discharge and a demotion and ended its opinion with these words: In sum, we conclude that because neither [the sheriffs] power to dismiss nor demote a deputy is constitutionally protected, and because the collective bargaining agreement does not conflict with [the sheriffs] statutory powers under secs. 59.21(1) and (4), Stats., the collective bargaining agreement is valid and enforceable.148 The final case in this Wisconsin trilogy is In re the Matter of a Certain Arbitration between Brown County Sheriffs Dept v. Brown County Sheriffs Dept Non-Supervisory Employees Assn,149 a case decided the same day as Heitkemper. The parallels between Brown County and Leelanau County are striking. In the former, the sheriff recommended that a deputy be dismissed for misconduct, but an arbitrator ordered only a thirtyday suspension, after which the deputy was to be reinstated.150 The case reached the state supreme court following a trial courts elimination of any requirement that the subsequently elected sheriff must deputize the employee or reinstate him to his former position as a patrol officer.151 The new sheriff refused to deputize the employee and assigned him to a non-

142. 143. 144. 145. 146. 147. 148. 149. 150. 151.

Id. at 776, 778. Id. at 776-77. Id. at 772, 777. Id. at 777. Id. Id. at 778. Id. 533 N.W.2d 766 (Wis. 1995). Id. at 767. Id.

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sworn position within the sheriffs department at the same rate of pay as a deputy.152 The court stated the question presented and its answer to that question near the beginning of its opinion: The issue before this court is whether a newly elected or reelected sheriffs power to dismiss or not to reappoint a previously appointed deputy is constitutionally or statutorily protected and, therefore, not subject to or limited by a collective bargaining agreement negotiated between a county and a labor union. For the reasons set forth below, we . . . hold that the power of a newly elected or reelected sheriff to dismiss or not to reappoint a previously appointed deputy is not constitutionally or statutorily protected.153 In reaching its conclusion, the court cited Heitkemper and reasoned that the collective-bargaining agreement established procedural safeguards similar to those of section 59.21(8)(b), the civil-service provision at issue in Heitkemper, and so could be harmonized with the sheriffs statutory powers under sections 59.21(1) and (4).154 The court held that the new sheriff was bound by the arbitration award,155 the very result urged in this Article for Leelanau County.

IV. TIME TO REVIEW COUNTY-SHERIFF CASES


Leelanau County presents Michigans appellate courts with the opportunity to reconsider the holdings of the Wayne, Ionia, Monroe, and Livingston County cases, particularly in light of the Michigan Supreme Courts opinion in Local 1383, in which it discussed at great length PERAs supremacy over conflicting legislation.156 Reconsideration is also appropriate in light of cases upholding the expanding role of arbitration and arbitrators in the resolution of all kinds of disputes.157 The Wisconsin trilogy of Buech, Heitkemper, and Brown County provides a blueprint.
152. Id. at 768. This is what happened to the employee in Leelanau County. 153. Id. at 767 (footnote omitted). 154. Id. at 769. 155. Id. at 770. 156. Local 1383 of the Intl Assn of Fire Fighters v. City of Warren, 311 N.W.2d 702, 706-09 (Mich. 1981). 157. See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (compulsory arbitration of Age Discrimination in Employment Act of 1967 claims); Landis v. Pinnacle Eye Care, 537 F.3d 559 (6th Cir. 2008) (compulsory arbitration of Uniformed Services Employment and Reemployment Rights Act claim); Elec. Data Sys. Corp. v. Donelson, 473 F.3d 684 (6th Cir. 2007) (arbitration of alleged violations of the Elliott-Larsen Civil Rights Act, MICH. COMP LAWS ANN. 37.2101 et seq. (West 2008), and the Persons with Disabilities Civil Rights Act, MICH. COMP LAWS ANN. 37.1101 et seq. (West 2008)); Rembert v. Ryans Family

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Because there is no Michigan statute governing the hiring and firing of police officers that is comparable to section 51.70 of the Michigan Sheriffs Act for deputy sheriffs, arbitrators in Michigan can order the reinstatement of police officers. In City of Lincoln Park v. Lincoln Park Police Officers Assn, a police officer faced charges reminiscent of those which the sheriff alleged but failed to prove in the Leelanau County arbitration.158 The Lincoln Park officer was charged with violating four sections of the police departments rules and regulations: conduct unbecoming an officer; . . . truthfulness; . . . reporting police activities; and . . . requiring the recording of each activity in which an officer becomes involved.159 The four violations resulted from a single incident in which the officer engaged in an improper consensual act of a sexual nature with the complaining witness after responding to her call for assistance and while on duty.160 After the incident, the officer failed to log his visit to the complainants home and to file a report on the incident.161 During questioning the next day, the officer denied engaging in a sexual act the previous night.162 However, the next day he admitted that he had lied in his first statement and told the truth regarding the events at the complainants home.163 After a full hearing before the citys public-safety commission, the city terminated the officer, who then filed a grievance under the collectivebargaining agreement between the city and the police officers union.164 The grievance went to arbitration, and the arbitrator set aside the dismissal and ordered [a] one-year suspension without pay or benefits, and one-year probation to commence upon [the officers] return to the force.165 The court of appeals upheld the arbitration, stating that the arbitrators award reinstating him was not itself unlawful, for there is no legal proscription against the reinstatement of a person such as the grievant. The award did not otherwise have the effect of mandating any illegal conduct or cause the employer to act unlawfully.166
Steak Houses, Inc., 596 N.W.2d 208 (Mich. Ct. App. 1999) (compulsory arbitration of statutory civil-rights claims upheld). 158. 438 N.W.2d 875, 876 (Mich. Ct. App. 1989). 159. Id. 160. Id. 161. Id. 162. Id. 163. Id. 164. Id. 165. Id. 166. Id. at 878. There are many unreported cases upholding or mentioning arbitral awards reinstating discharged police officers; see City of Pontiac v. Mich. Assn of Police, No. 251694, 2005 WL 418015 (Mich. Ct. App. Feb. 22, 2005) (per curiam) (reciting that officers dismissal had been successfully challenged in previous arbitration); Hamburg Twp. v. Mich. Assn of Police, No. 255828, 2006 WL

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The considerations in hiring and firing or otherwise disciplining police officers and deputy sheriffs would seem to be virtually identical. However, under a literal interpretation of section 51.70, as evidenced by the countysheriff cases, a deputy sheriff who is denied law-enforcement powers by a sheriff in violation of a collective-bargaining agreement has no remedy in arbitration. Such a state of affairs in public-sector labor relations appears manifestly unreasonable. Thus, the county-sheriff cases create an artificial and seemingly unfair disparity between the justice available to police officers and that available to deputy sheriffs in grievance arbitration. The difficulty with the county-sheriff cases may lie in a misreading of the superannuated case of Allor v. Board of Auditors of Wayne County,167 a mistake which may have begun in Brownstown Township v. County of Wayne.168 Brownstown Township is quoted in Wayne County169 and is cited in Ionia County.170 Monroe County,171 in turn, relied upon Wayne County and Ionia County, and Livingston County172 relied upon Wayne County, Ionia County, and Monroe County. Thus, if Allor was misread in Brownstown Township, then the flaw underlies all of the county-sheriff cases upon which the circuit court relied in Leelanau County. Brownstown
355157 (Mich. Ct. App. Feb. 16, 2006) (per curiam) (upholding arbitrators reinstatement of a police officer discharged for serving alcohol to minor); Mich. Assn of Police v. City of Pontiac, No. 225187, 2001 WL 1353673 (Mich. Ct. App. Nov. 2, 2001) (per curiam) (holding that the arbitrators award of reinstatement of a discharged police officer did not authorize compulsory screening tests prior to reinstatement); Police Officers Assn of Mich. v. County of Lake, No. 224361, 2001 WL 1511832 (Mich. Ct. App. Nov. 27, 2001) (per curiam) (reciting that a discharged deputy sheriff had been reinstated by the sheriff after arbitrators award of reinstatement; there was no mention of law-enforcement powers or MICH. COMP. LAWS ANN. 51.70); Police Officers Assn of Mich. v. City of Saginaw, No. 190830, 1997 WL 33347971 (Mich. Ct. App. May 16, 1997) (mem.) (upholding the arbitrators reinstatement of two discharged police officers). Published Michigan arbitration opinions ordering or mentioning reinstatement of police include Flint, Mich. Police Dept, 05-2 Lab. Arb. Awards (CCH) 3239 (2005) (McDonald, Arb.) (reinstating a policeman to former classification after discharge for domestic violence); City of Benton Harbor, 103 Lab. Arb. Rep. 816 (BNA) (1994) (Allen, Arb.) (explaining that in a previous arbitration, a policeman was reinstated to a former rank because of a lack of due process in termination); County of Berrien & Labor Council Mich. Fraternal Order of Police, 90-1 Lab. Arb. Awards (CCH) 8058 (1989) (Dobry, Arb.) (reinstating a deputy sheriff to road patrol instead of assigning him to jail duty; there was no explicit mention of law-enforcement powers or 51.70). 167. 4 N.W. 492 (Mich. 1880). 168. 242 N.W.2d 538 (Mich. Ct. App. 1976). 169. 286 N.W.2d 242, 245 (Mich. Ct. App. 1979). 170. 333 N.W.2d 73, 76 (Mich. Ct. App. 1983). 171. 357 N.W.2d 744, 749 (Mich. Ct. App. 1984). 172. Police Officers Assn of Mich. v. County of Livingston, No. 102038, slip op. at 3-4 (Mich. Ct. App. June 30, 1988) (per curiam).

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Township and its progeny may have read Allor far too broadly and greatly exaggerated the effect on the office of sheriff of a remedial provision in a collective-bargaining agreement, like that in the Leelanau contract. In Brownstown Township, Allor is cited for the following proposition: The office of sheriff is a constitutional office with duties and powers provided by law. When officers are named in the Constitution they have a known legal character. The Legislature may vary the duties of a constitutional office, but it may not change the duties so as to destroy the power to perform the duties of the office.173 The Murfree treatise, also cited in Brownstown Township above, dates back to the days of the Wild West and thus may be antiquated.174 In any event, it does not address the statutory issues that have arisen long after the texts publication. At issue in Allor was a classic constabulary power the power to arrest criminals.175 Even Wisconsin courts agree that fundamental constitutional powers cannot be altered legislatively or contractually.176 What the Michigan Supreme Court actually stated in Allor is this: It cannot be maintained that legislation would be valid which retained the names but destroyed the powers of such officers [i.e., constables or officers answering to constables]. While there is an undoubted power to vary the duties of such officers it cannot be lawful to so change those duties as to practically change the office. When officers are named in a constitution they are named as having a known legal character.177 It is unclear how a provision in a collective-bargaining agreement that empowers an arbitrator to order restoration of a deputy sheriffs lawenforcement powers, after a sheriff has taken them away without just cause
173. 242 N.W.2d. at 539 (citing MICH. CONST. of 1963, art. VII, 4; Mich. Labor Mediation Bd. v. Marr, 181 N.W.2d 44 (Mich. Ct. App. 1970); Allor v. Bd. of Auditors of Wayne County, 4 N.W. 492 (Mich. 1880); WILLIAM L. MURFREE, SR., A TREATISE ON THE LAW OF SHERIFFS AND OTHER MINISTERIAL OFFICERS 41, 22 (2d ed. 1890)). 174. MURFREE, supra note 173. 175. Allor v. Bd. of Auditors of Wayne County, 4 N.W. 492, 501 (Mich. 1880). 176. See, e.g., Heitkemper v. Wirsing, 533 N.W.2d 770, 773-74 (Wis. 1995) (citing State ex rel. Kennedy v. Brunst, 26 Wis. 412, 415 (1870) (sheriffs custody of jail and prisoners constitutionally protected from legislation); Manitowoc County v. Local 986B, 484 N.W.2d 534, 538 (Wis. 1992) (per curiam) ([M]aintaining law and order and preserving the peace, are constitutionally protected powers of the sheriff that may not be limited by a collective bargaining agreement.)). 177. Allor, 4 N.W. at 500 (emphasis added).

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in violation of the labor contract, could practically change the office178 of sheriff. To the contrary, such a provision would seem to prevent the sheriff from abusing his statutory authority. The Michigan Supreme Court may agree. In Local 1383, it upheld a promotion provision in a collective-bargaining agreement over a statutory provision and a city charter.179 In so doing, the court commented as follows: Where collective bargaining does not exist or where an agreement does not reach issues covered by civil service systems, article 11, 6 provides a check by the people on the powers of elected officials. However, where collective bargaining reaches the issues covered by local civil service systems, the restraint on the power of local officials is inherent within the collective-bargaining process.180 That same reasoning should apply to Leelanau County. The full-duty provision in the collective-bargaining agreement is remedial in nature. It is not a delegation of the sheriffs authority to an arbitrator; rather, it is a check on the sheriffs abuse of his authority. When the courts holding in Macomb County181 is combined with its holding in Local 1383,182 the logic in support of the supremacy of a collective-bargaining agreement over section 51.70 becomes almost ineluctable. If a civil-service system prevails over section 51.70, as in Macomb County, and if a collective-bargaining agreement prevails over a civil-service system, as in Local 1383, then a collective-bargaining agreement ought to prevail over section 51.70. In St. Clair County, which was decided between Macomb County and Local 1383, the court of appeals reached this conclusion without mentioning Macomb County.183 The conclusion is especially compelling in a case like Leelanau County, in which the collective-bargaining agreement contains a provision expressly empowering an arbitrator to reinstate a deputy sheriff to full duty.184 Macomb County is Michigans counterpart to Wisconsins Buech,185 and

178. Id. 179. Local 1383 of the Intl Assn of Fire Fighters v. City of Warren, 311 N.W.2d 702, 711 (Mich. 1981). 180. Id. (emphasis added). 181. Locke v. County of Macomb, 199 N.W.2d 166 (Mich. 1972). 182. Local 1383, 311 N.W.2d 702. 183. Local 1518, Council 55, Am. Fedn of State, County & Mun. Employees v. Meharg, 258 N.W.2d 168 (Mich. Ct. App. 1977), revd on other grounds, 281 N.W.2d 313 (Mich. 1979). 184. Police Officers Assn of Mich. v. Leelanau County, No. 07-7669-CL (Leelanau County Cir. Ct. Apr. 14, 2008). 185. State ex rel. Milwaukee County v. Buech, 177 N.W. 781 (Wis. 1920).

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Local 1383 is Michigans counterpart to Wisconsins Heitkemper,186 except for the fact that Local 1383 involves firefighters instead of police. If Michigans appellate courts follow the lead of the Wisconsin Supreme Court in Brown County,187 then when reversed, Leelanau County should become Michigans counterpart to Brown County. Michigan Labor Mediation Board v. Marr,188 cited in Brownstown Township189 and Wayne County,190 does not address the collectivebargaining issue presented here. All of the sheriffs employees in Marr were deputy sheriffs. One deputy had to perform the duties of jail turnkey because they could not all be patrol officers.191 It was simply up to the sheriff to determine which deputy manned the jail.192 The sheriff selected the deputy whom he had fired and whom the Labor Relations Board had ordered reinstated to his former position or to one substantially equivalent.193 The appellate court found the turnkey position to be substantially equivalent.194 As already demonstrated, federal courts do not consider section 51.70 of the Michigan Sheriffs Act as a barrier to granting relief in civil-rights cases.195 Although no case in which a federal court has ordered reinstatement of a Michigan deputy sheriff has been found, it seems clear that a court would do so in a proper case. Because state courts have concurrent jurisdiction over actions brought pursuant to 42 U.S.C. 1983,196 they have the same remedial power as federal courts. The courts have similarly broad power under the remedial provisions of Michigans Civil Rights Act, section 37.2801, which authorizes appropriate injunctive relief.197 The Leelanau collective-bargaining agreement itself contained a nondiscrimination provision:

186. Heitkemper v. Wirsing, 533 N.W.2d 770 (Wis. 1995). 187. In re the Matter of a Certain Arbitration between Brown County Sheriffs Dept v. Brown County Sheriffs Dept Non-Supervisory Employees Assn, 533 N.W.2d 766 (Wis. 1995). 188. 181 N.W.2d 44 (Mich. Ct. App. 1970) (per curiam). 189. Brownstown Twp. v. County of Wayne, 242 N.W.2d 538, 539 (Mich. Ct. App. 1976). 190. Natl Union of Police Officers v. Bd. of Commrs for the County of Wayne, 286 N.W.2d 242, 245 (Mich. Ct. App. 1979). 191. Marr, 181 N.W.2d at 45. 192. Id. at 46. 193. Id. 194. Id. 195. Grysen v. Dykstra, 591 F. Supp. 282, 285 (W.D. Mich. 1984). 196. See Shaw v. Leatherberry, 706 N.W.2d 299, 304 (Wis. 2005); County of Dallas v. Wiland, 216 S.W.3d 344 (Tex. 2007) (deputies suing in state court under 42 U.S.C. 1983). 197. MICH. COMP. LAWS ANN. 37.2801 (West 2008).

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It shall be the joint concern of the Sheriff and the Union to afford equal employment and advancement opportunity to all qualified individuals regardless of their race, color, sex, religion, age, national origin, physical or mental handicap, Vietnam Era or Disabled Veteran Status, and to conform to all applicable laws and regulations.198 The contract also provided that [t]he sole remedy available to any employee for any alleged breach of this Agreement will be pursuant to the Grievance Procedure.199 In light of these provisions, it would be anomalous for a deputy sheriff, who has been discriminatorily deprived of lawenforcement powers, to be forced to take a discrimination claim to arbitration if the arbitrator does not have authority to order that the deputy be granted those powers. Forcing a deputy into court to vindicate civil rights would not seem to be in a countys best interest because, in addition to being enjoined, the county could face extensive discovery and be assessed compensatory and punitive damages, court costs, and attorneys fees. It is highly unusual for damages, costs, or fees to be awarded in labor arbitration, absent express authority in the collective-bargaining agreement itself.200 Thus, the better rule, at least as far as counties are concerned, would appear to be to allow arbitrators to order restoration of a deputys law-enforcement powers, at least in civil-rights cases.201 If that authority is granted, it does not seem like much of a stretch to allow arbitrators to order such powers restored when a sheriff denies them to a deputy without just cause in violation of a
198. LEELANAU COLLECTIVE BARGAINING AGREEMENT, supra note 24, 0.5. 199. Id. 5.6. 200. ELKOURI & ELKOURI, supra note 50, at 14 (Judicial discovery rights may be more expansive, and traditional remedies, such as attorneys fees, punitive damages, and supervised equity relief may not be available in arbitration.). 201. It is not uncommon for civil-rights issues to be arbitrated in the federal sector, as federal labor contracts sometimes encompass civil rights. See, e.g., Office and Profl Employees Intl Union, 104 Fed. Lab. Rel. Rep. 2 (LRP) 19 (2003) (Cornelius, Arb.) (reverse discrimination); Am. Fedn of Govt Employees, Local 1858, 103 Fed. Lab. Rel. Rep. 2 (LRP) 93 (2003) (Cornelius, Arb.) (sexual harassment and age discrimination); Am. Fedn of Govt Employees, Local 2317, 98 Fed. Lab. Rel. Rep. (LRP) 1-1206 (1998) (Cornelius, Arb.); United States Marine Corps, 110 Lab. Arb. Rep. 955 (BNA) (1998) (Cornelius, Arb.) (Title VII discrimination). The only alleged civil-rights violation raised directly in the Leelanau County arbitration was the search and seizure of telephone records, an issue which the arbitrator addressed but ultimately skirted. 07-2 Lab. Arb. Awards (CCH) 3926, at 3222-25 (2007) (Cornelius, Arb.). There may, however, have been other possible violations, such as freedom of association (07-2 Lab. Arb. Awards (CCH) 3926, at 3219 (citing Sponick v. Detroit Police Dept, 211 N.W.2d 674 (Mich. Ct. App. 1973))), freedom of speech (07-2 Lab. Arb. Awards 3926, at 3217-18), and due process with respect to summary dismissal (07-2 Lab. Arb. Awards 3927; see Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)).

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collective-bargaining agreement.

V. CONCLUSION
The artificial disparity between the authority of arbitrators to order reinstatement of police officers and their lack of authority with respect to the law-enforcement powers of deputy sheriffs, the expanding role of arbitrators in dispute resolution, and the Michigan Supreme Courts championing of PERA over conflicting statutes militate in favor of appellate reconsideration of Wayne County, Ionia County, Monroe County, Livingston County, and related cases. The Wisconsin trilogy of Buech, Heitkemper, and Brown County provides a precedent that could be emulated. As numerous courts have observed, including the Michigan Supreme Court itself,202 a sheriffs authority to appoint and discharge deputies is purely statutory. Under Local 1383, a remedial provision in a collectivebargaining agreement, expressly empowering an arbitrator to order restoration of a deputy sheriffs law-enforcement powers in a proper case, or some such equivalent provision as in Leelanau County, should serve as a pro tanto limitation on a sheriffs authority over deputies under section 51.70 of the Michigan Sheriffs Act, which has already been eroded by subsequent statutes, as was the case with a Wisconsin sheriffs authority under the Wisconsin Statute, section 59.21. In Monroe County, the sheriff himself appears to have admitted the possible superiority of a labor contract over his statutory authority: While the sheriff and board acknowledge that a sheriffs statutory power under MCL 51.70; MSA 5.863 to discharge deputy sheriffs at will may be modified or abrogated by a collective bargaining agreement executed pursuant to PERA, Local 1518, Council 55, American Federation of State, County & Municipal Employees, AFL-CIO v. St Clair County Sheriff, 77 Mich. App. 145, 148-149, 258 N.W.2d 168 (1977), revd on other grounds, 407 Mich. 1, 281 N.W.2d 313 (1979); National Union of Police Officers Local 502-M, AFL-CIO v. Wayne County Bd. of Commrs, 93 Mich. App. 76, 89, 286 N.W.2d 242 (1979); Fraternal Order of Police, Ionia County Lodge No. 157 v. Bensinger, 122 Mich. App. 437, 442, 333 N.W.2d 73 (1983), lv. den. 418 Mich. 853 (1983), they argue that the terms of the

202. People v. Coutu, 589 N.W.2d 458, 461 (Mich. 1999) ([T]he Legislature provided for the creation of deputy sheriffs at MCL 51.70; MSA 5.863.).

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collective bargaining agreement involved herein provided for the retention of that statutory power.203 The court of appeals reached the superiority result in St. Clair County and is presented with the opportunity to do so again, on even sounder bases, in the Leelanau County case now before it.

AUTHORS POSTSCRIPT 4/12/10


Instead of addressing the issues that the author urged the appellate court to consider, the court wrote an unpublished opinion, without mentioning this Article. Police Officers Assn of Michigan v. Leelanau County and Leelanau County Sheriff, 2009 Mich. App. LEXIS 2344; 2009 WL 3757442. In POAM v. LEELANAU COUNTY SHERIFFAN OPPORTUNITY MISSED, the author provides a critique of the court of appeals opinion, arguing that it is replete with errors of fact and law and leaves the question of a sheriffs power over his deputies unanswered. The authors critique is posted at http://www.scribd.com/doc/29653845/POAM-v-Leelanau-CountySheriff-An-Opportunity-Missed.

203. Monroe County Sheriff v. Fraternal Order of Police, Lodge 113, 357 N.W.2d 744, 746 (Mich. Ct. App. 1984) (per curiam) (declining to interpret the contract, the court noted that this was the arbitrators function).