                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     FOR PUBLICATION
                                                                     April 4, 2017
               Plaintiff-Appellee,                                   9:05 a.m.

v                                                                    No. 333590
                                                                     Wayne Circuit Court
ANTHONY PARLOVECCHIO,                                                LC No. 15-008982-01-AR

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and MURPHY and RONAYNE KRAUSE, JJ.

PER CURIAM.

       Defendant appeals by leave granted the circuit court’s reversal of the district court
decision granting defendant’s motion to dismiss a grand jury indictment. We reverse.

        Defendant, as the president of Parlovecchio Building Company, Inc, entered into an
agreement with the Wayne County Building Authority (“WCBA”), to act as project manager or
“Owner’s Representative” (“OR”) for the Wayne County Jail Project (“Project”). The Project
was never completed, and a number of individuals, including defendant, were indicted for
various roles they played in the failure of the project. Defendant’s indictment for willful neglect
of duty as a public employee or person holding public trust under MCL 750.478 stated that he
“did willfully neglect to perform the duty to fully and honestly inform a legislative body, to wit:
the Wayne County Building Authority, a duty enjoined upon him by State law and/or the Wayne
County Charter and/or Wayne County Ordinances . . . ” The indictment contained no other
specifics.

        Defendant argued in the district court that he was neither a public officer nor an
employee, but rather an independent contractor, and therefore could not be subject to MCL
750.478; he also argued that the indictment insufficiently specified what criminal actions he
“actually did,” and he requested a bill of particulars. The district court agreed with defendant’s
first proposition and dismissed the indictment. On appeal, the circuit court reversed and
reinstated the indictment, holding that the statute could apply to independent contractors, because
independent contractors could hold a position of public trust. We granted defendant’s delayed
application for leave to appeal. The circuit court reviews a district court’s decision to dismiss
charges for an abuse of discretion, and we review the circuit court’s determination on such a
matter de novo. People v Bylsma, 493 Mich 17, 26; 825 NW2d 543 (2012). We likewise review
de novo questions of statutory interpretation, including the constitutionality of statutes. People v
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Buehler, 477 Mich 18, 23; 727 NW2d 127 (2007); People v Douglas, 295 Mich App 129, 134;
813 NW2d 337 (2011).

        In People v Waterstone, 296 Mich App 121, 131-132; 818 NW2d 432 (2012), this Court
recited the governing standards of review and the controlling principles of statutory construction:

       This Court reviews for an abuse of discretion both a district court's decision to
       bind a defendant over for trial and a trial court's decision on a motion to quash an
       information. A trial court abuses its discretion when its decision falls outside the
       range of reasonable and principled outcomes. A trial court necessarily abuses its
       discretion when it makes an error of law. This Court reviews de novo questions
       of statutory construction.

               [The] Michigan Supreme Court [has] recited the well-established
       principles that govern our interpretation of a statute[, stating as follows]:

                “The overriding goal of statutory interpretation is to ascertain and give
       effect to the Legislature's intent. The touchstone of legislative intent is the
       statute's language. The words of a statute provide the most reliable indicator of
       the Legislature's intent and should be interpreted on the basis of their ordinary
       meaning and the overall context in which they are used. An undefined statutory
       word or phrase must be accorded its plain and ordinary meaning, unless the
       undefined word or phrase is a “term of art” with a unique legal meaning.”
       [Citations and quotation marks omitted.]

       The parties dispute the construction of various terms employed in MCL 750.478, which
provides:

              When any duty is or shall be enjoined by law upon any public officer, or
       upon any person holding any public trust or employment, every willful neglect to
       perform such duty, where no special provision shall have been made for the
       punishment of such delinquency, constitutes a misdemeanor punishable by
       imprisonment for not more than 1 year or a fine of not more than $1,000.00.
       [Emphasis added.]

For a conviction under this statute, the prosecution must establish (1) that the defendant was a
public officer or “any person holding any public trust or employment,” (2) that the defendant had
a duty that is “enjoined by law,” and (3) that the defendant willfully neglected to perform such
duty. MCL 750.478; People v Medlyn, 215 Mich App 338, 340-341; 544 NW2d 759 (1996).

        It is undisputed that defendant is not a “public officer,” and we agree with the district
court that defendant is an independent contractor rather than a public employee. Plaintiff offers
at most a vague argument to the contrary, and we reject that argument as advocating the




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complete dissolution of any distinction whatsoever between an employee and a contractor.1 The
district court properly utilized the “economic reality” test, see Buckley v Professional Plaza
Clinic Corp, 281 Mich App 224, 233-236; 761 NW2d 284 (2008), and determined, based on
several provisions of defendant’s contract with WCBA, that defendant was not a “person holding
any public . . . employment” under the plain language of MCL 750.478.

       The term “public trust” is not defined in the statute or elsewhere in the Michigan Penal
Code and it is simply not necessary for us to address the issue of whether defendant was a person
holding a public trust.

         We instead focus on the question concerning whether he had a duty “enjoined by law” to
communicate the pertinent financial information and situation to the county. In the context of
this case, interpretation of MCL 750.478 and the phrase “enjoined by law” requires examination
of how broadly or narrowly to construe the word “law.” The prosecution’s argument on appeal
is ultimately premised solely on the underlying contract with respect to the establishment of a
duty. Essentially, the prosecution is contending that defendant’s duty, for purposes of MCL
750.478, arose under the law of contracts. We conclude that the prosecution’s construction is
much too broad, improperly exposing private contractors on governmental projects to criminal
liability solely on the basis of breach of contract.

        We believe that an analogy can be made to the law of mandamus. A writ of mandamus
can only be issued if a governmental employee or entity “had a clear legal duty to perform the
[requested] act.” Casco Twp v Secretary of State, 472 Mich 566, 577; 701 NW2d 102 (2005).
And the legal duty cannot rest solely on a contractual obligation. Garner v Mich State Univ, 185
Mich App 750, 763; 462 NW2d 832 (1990) (“Where the right or duty sought to be enforced rests
wholly on contract, mandamus cannot issue to enforce it[.]”); Warber v Moore, 126 Mich App
770, 776; 337 NW2d 918 (1983) (“mandamus should not be available to compel public officers
to perform a duty assumed by contract”); Bd of Co Rd Comm’rs of the Co of Oakland v State
Hwy Comm, 79 Mich App 505, 512; 261 NW2d 329 (1977) (“We note first that mandamus will
not be granted to compel public officers to perform a duty assumed by contract, unless mandated
by statute.”). Indeed, in Waterman-Waterbury Co v Sch Dist No 4 of Cato Twp, 183 Mich 168,
174; 150 NW 104 (1914), our Supreme Court observed:

               The primary purpose of the writ of mandamus is to enforce duties created
       by law. It is stated by text-writers, as a general principle, that the writ is not
       designed as a remedy for the collection of debts, and will not lie to enforce the
       private contracts of municipalities. [Emphasis added.]

        If a public officer, which is how the prosecution seeks to treat defendant, cannot be
compelled in a mandamus action to perform a duty arising solely out of a contract, as it does not
constitute a legal duty or a duty created by law, we fail to see how that same officer can be held


1
  Plaintiff would draw a distinction between “holding employment” and “being an employee”
that we think to be untrue under the circumstances.

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criminally liable under MCL 750.478 for failing to perform the contractual duty. We must
distinguish the phrase “enjoined by law” from “enjoined by contract.” A “contract” is not the
“law.” Rather, a “contract” is enforceable under the law. It is unnecessary to define the full
reach or parameters of the word “law,” as used in the phrase “enjoined by law” under MCL
750.478, but only to examine, given the limits of the prosecution’s argument relying solely on
contract, whether the word “law” encompasses a contractual obligation, which it does not.

        The grand jury indictment in this case sets forth only a contractual duty. At oral
argument, the prosecutor repeatedly contended that the only duty defendant allegedly violated is
his contractual one. As a consequence, defendant has indisputably not been accused of violating
any duty that could give rise to criminal liability under MCL 750.478. The district court
correctly dismissed the indictment, and the circuit court erred in reversing.

      It is therefore unnecessary for us to address whether the statute is unconstitutional or
whether the grand jury indictment was insufficiently specific.

        In sum, defendant is entitled to dismissal of the charge under MCL 750.478 and by way
of this opinion, we dismiss the charge against defendant in this case.

                                                           /s/ Michael J. Kelly
                                                           /s/ William B. Murphy
                                                           /s/ Amy Ronayne Krause




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