                          STATE OF MICHIGAN

                           COURT OF APPEALS



CHARLES VAYDA,                                                      FOR PUBLICATION
                                                                    October 19, 2017
               Plaintiff-Appellee,                                  9:05 a.m.

v                                                                   No. 333495
                                                                    Lake Circuit Court
COUNTY OF LAKE,                                                     LC No. 15-008958-AS

               Defendant-Appellant.


Before: BOONSTRA, P.J., and METER and GADOLA, JJ.

GADOLA, J.

        This case requires us to reconcile provisions set forth by MCL 46.30a of the county
boards of commissioners’ act (CBCA), MCL 46.1 et seq., and MCL 35.402 of the veterans’
preference act (VPA), MCL 35.401 et seq. The issue on appeal is whether plaintiff, Charles
Vayda, was entitled to notice and a hearing under the VPA before the termination of his
employment with the Lake County Sheriff’s Office, after he became a member of the Lake
County Board of Commissioners (the Board). We hold that the conclusion of plaintiff’s
employment as a sheriff’s deputy did not trigger the notice and hearing requirements of the VPA
because plaintiff made himself ineligible for continued employment with the sheriff’s office by
accepting a position on the Board. We therefore reverse the trial court’s order granting
plaintiff’s motion for summary disposition and remand for entry of an order granting the motion
for summary disposition filed by defendant, the County of Lake (the County).

                              I. BACKGROUND OF THE CASE

        Plaintiff is a military veteran who was employed by the County as a sheriff’s deputy from
1991 until the circumstances giving rise to this case. After plaintiff was elected to the Board in
November 2014, the Board filed a lawsuit seeking a declaratory ruling regarding whether
plaintiff could hold both the position of county commissioner and the position of sheriff’s deputy
simultaneously. The Board asked the court to enter a declaratory judgment stating that plaintiff
“must resign either his position as a deputy in the Sheriff’s Office or his position as a member of
the Lake County Board of Commissioners” because holding both positions violated Michigan’s
incompatible public offices act (IPOA), MCL 15.181 et seq., and MCL 46.30a of the CBCA.
Plaintiff alleged in that lawsuit that on January 2, 2015, the day he was sworn in as a county
commissioner, Lake County Sheriff Robert Hilts met with him and asked him to resign from his



                                                -1-
position as a sheriff’s deputy. Plaintiff refused to resign, and Sheriff Hilts placed him on unpaid
administrative leave pending the outcome of the Board’s lawsuit.

        In the Board’s lawsuit, the circuit court concluded that inherent conflicts of interest
existed between the county commissioner and sheriff’s deputy positions and that, under MCL
46.30a of the CBCA and MCL 15.182 and MCL 15.183 of the IPOA, plaintiff could “not hold
both positions simultaneously.” Plaintiff maintained, however, that the circuit court did not
specify from which position he must resign. After the circuit court issued its opinion and order
in the Board’s lawsuit, Sheriff Hilts sent plaintiff a letter stating that his employment as a
sheriff’s deputy had been terminated.1

        Plaintiff then filed his complaint in the instant action, alleging that the County violated
his rights under MCL 35.402 of the VPA by failing to provide notice and a hearing before
terminating his employment as a sheriff’s deputy. Plaintiff asserted that the County should have
allowed him to choose which position he would like to maintain because the circuit court did not
direct his withdrawal from one position over the other in the Board’s lawsuit. Plaintiff claimed
that he informed Sheriff Hilts that he would step down from his role as a county commissioner
because he wanted to remain a sheriff’s deputy.

         Plaintiff alleged that, after the conclusion of his employment as a sheriff’s deputy, he sent
a letter to Lake County’s prosecuting attorney, Craig R. Cooper, requesting a VPA hearing, but
the County refused his request. Plaintiff said he received a letter from Cooper, dated June 24,
2015, which stated that the “issues presented under the [VPA] have already been decided based
on the doctrine of Res Judicata.” Plaintiff argued, however, that res judicata did not apply
because the circuit court in the Board’s lawsuit did not address which position plaintiff was
required to give up. Plaintiff asked the court to issue a writ of superintending control compelling
the County to hold a VPA hearing. He also asked the court to issue an order to show cause
regarding why the County denied plaintiff his rights under the VPA.

        Thereafter, plaintiff filed a motion for summary disposition under MCR 2.116(C)(8)
(failure to state a claim) and the County filed a responding motion for summary disposition
under MCR 2.116(C)(7) (claim barred by prior judgment), MCR 2.116(C)(8), and MCR


1
  Plaintiff alleged in his complaint that Sheriff Hilts sent the letter “on the same day,” March 10,
2015, that the circuit court issued its declaratory ruling in the Board’s lawsuit. In its answer, the
County alleged that “Sheriff Hilts terminated Plaintiff’s employment on March 12, 2015, by
letter,” or two days after the circuit court issued its ruling. Plaintiff contends that he should have
been given more time to decide which position he would like to keep, but according to the
County, plaintiff had two days after the circuit court issued its ruling to make a decision before
Sheriff Hilts took any action. In any event, as discussed in more detail in this opinion, once the
circuit court issued its ruling, plaintiff became ineligible to hold both positions simultaneously
and subjected both himself and Sheriff Hilts to criminal culpability for any period, whether two
hours or two days, of continued employment as a sheriff’s deputy. Therefore, if plaintiff had a
preference to remain a sheriff’s deputy and vacate his position as a county commissioner, he was
obligated to make that election immediately upon the circuit court’s ruling, which he failed to do.


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2.116(C)(10) (no genuine issue of material fact). Following a hearing, the trial court granted
plaintiff’s motion for summary disposition and denied the County’s motion. In support of its
decision, the court offered the following analysis:

       The Veteran’s Preference Act requires that a qualifying veteran is entitled to a
       hearing pursuant to MCL § 35.402. Plaintiff is a qualifying veteran. The statute
       plainly requires a hearing prior to termination of employment. Plaintiff was not
       afforded a hearing even after he made a written request for a hearing. There is no
       authority presented to the Court by defendant which would authorize the
       Prosecuting Attorney to deny the hearing. In essence the decision was made by
       the Prosecuting Attorney without hearing all the facts. That decision violates the
       express terms of the VPA. The Court remands this issue to the Prosecuting
       Attorney as the entity required to hold the hearing. . . .

               Defendant’s Motion for Summary Disposition alleges that the claims by
       plaintiff are barred by res judicata and collateral estoppel and constitute an
       impermissible collateral attack on this Court’s prior judgment. Defendant argues
       that plaintiff’s request for a VPA hearing was “fully and finally determined when
       this Court held that he could not serve simultaneously as a deputy sheriff and
       County Commissioner.” The Court disagrees with this position. The legal
       opinion that plaintiff could not hold both positions is distinct from the facts and
       circumstances of his termination. Those facts are currently in dispute. That
       dispute could be heard at a VPA hearing. The relief requested in the prior lawsuit
       by the current defendant was a declaration that [plaintiff] could not hold both
       positions and that [plaintiff] then chose which position he would continue. The
       facts as alleged demonstrate there is a question of fact regarding whether he was
       given that opportunity. There is nothing in the prior opinion of this Court that
       says that [plaintiff] should have been terminated from the Sheriff’s office. . . .
       Consistent with the Court’s prior ruling, it would have been appropriate for the
       County to give plaintiff a reasonable amount of time to decide which position he
       would continue. This was the specific relief requested by the County Board of
       Commissioners and granted in the prior case. Whether or not [plaintiff] was
       given an opportunity to chose [sic] is a factual question to be determined at a
       VPA hearing. This action does not constitute a collateral attack on the prior
       Order of the Court because the prior Order did not in any manner dictate that
       [plaintiff] should be terminated from the Sheriff’s Department. However, if there
       is a question regarding clarification of the prior Order, that question should be
       raised in the prior case, not this one.

                                II. STANDARD OF REVIEW

       We review de novo a trial court’s decision on a motion for summary disposition.
Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). Although the trial court did not
specify under which subrule it granted plaintiff’s motion, it appears that the court confined its




                                               -3-
analysis to information set forth by the parties in their pleadings alone, so we will treat the
motion as having been granted under MCR 2.116(C)(9).2 When deciding a motion under MCR
2.116(C)(9), a trial court considers the pleadings alone, accepting as true all well-pleaded
allegations, to assess the sufficiency of a defendant’s defenses. Abela v Gen Motors Corp, 257
Mich App 513, 517; 669 NW2d 271 (2003). “Summary disposition under MCR 2.116(C)(9) is
proper when the defendant’s pleadings are so clearly untenable that as a matter of law no factual
development could possibly deny the plaintiff’s right to recovery.” Id. at 518 (citation omitted).

      This case also implicates questions of statutory interpretation, which we review de novo.
Bukowski v Detroit, 478 Mich 268, 273; 732 NW2d 75 (2007).

                                          III. ANALYSIS

        “The VPA was enacted for the purpose of discharging, in a measure, the debt of gratitude
the public owes to veterans who have served in the armed services in time of war, by granting
them a preference in original employment and retention thereof in public service.” Sherrod v
Detroit, 244 Mich App 516, 523; 625 NW2d 437 (2001) (quotation marks and citation omitted).
The VPA “entitles a veteran to notice and a hearing before his employer may take any action
against him with respect to his employment” and “converts at-will public employment positions
into ones that are terminable only for just cause.” Id. Because the conversion of at-will public
employment into just-cause employment gives a veteran a property interest in continuing such
employment once it is secured, failure to comply with the procedural requirements of the VPA
may support a due process claim. Id. Further, MCL 35.403 states that failing to provide notice
and a hearing in violation of the VPA subjects the offender to criminal prosecution. See also
Jackson v Detroit Police Chief, 201 Mich App 173, 177; 506 NW2d 251 (1993).

       Also at issue in this case is MCL 46.30a of the CBCA, which states, in part, the
following:




2
  Plaintiff moved for summary disposition under MCR 2.116(C)(8), but this subrule only entitles
a movant to summary disposition if “[t]he opposing party has failed to state a claim on which
relief can be granted.” As the defendant in the action, the County was not asserting any claim
against plaintiff; rather, it is clear from plaintiff’s motion that he was challenging the sufficiency
of the defenses asserted by the County in its responsive pleadings. MCR 2.116(C) states that a
movant must specify the grounds on which a motion for summary disposition is based, but exact
technical compliance is not required. Mollett v City of Taylor, 197 Mich App 328, 332; 494
NW2d 832 (1992). Considering the substance of the County’s responsive motion for summary
disposition and its arguments at the hearing on the parties’ motions, we are satisfied that
plaintiff’s motion and arguments were sufficiently clear to allow the County to understand and
fully respond to the issues before the court. See Moy v Detroit Receiving Hosp, 169 Mich App
600, 605; 426 NW2d 722 (1988) (rejecting a challenge to an order granting summary disposition
on the basis that the movants failed to identify the specific subrule under which they sought
summary disposition).


                                                 -4-
               (1) A member of the county board of commissioners of any county shall
       not be eligible to receive, or shall not receive, an appointment from, or be
       employed by an officer, board, committee, or other authority of that county except
       as otherwise provided by law.

               (2) In case of an appointment or employment made in violation of this
       section, both the person making the appointment or employment and the person
       appointed or employed shall be liable for moneys paid to the person as salary,
       wages, or compensation in connection with the appointment or employment. In
       case the appointment or employment is made by a committee or board, a member
       of the committee or board at the time the appointment was made or contract of
       employment entered into shall be liable. An action for the recovery of salary,
       wages, or compensation paid in connection with any appointment or employment
       made in contravention of this section, may be maintained by a taxpayer of the
       county. The moneys recovered in the action shall be deposited in the county
       treasury to the credit of the general fund.

              (3) The prosecuting attorney of the county, upon the request of the
       taxpayer, shall prosecute the action in the taxpayer’s behalf.

               (4) A member of the county board of commissioners accepting an
       appointment or employment in violation of this section is guilty of a
       misdemeanor, punishable by a fine of not more than $100.00 or imprisonment for
       not more than 90 days, or both. An officer or other official, or a member of a
       board or committee making an appointment or employment in violation of this
       section is guilty of a misdemeanor, punishable by imprisonment for not more than
       90 days, or a fine of not more than $100.00, or both.

        The issue in this case is whether plaintiff was entitled to notice and a hearing under the
VPA before the conclusion of his employment as a sheriff’s deputy after he accepted a position
on the Board. In the Board’s previous lawsuit, the circuit court held that plaintiff could not hold
both positions simultaneously without violating MCL 46.30a of the CBCA and MCL 15.182 and
MCL 15.183 of the IPOA. Neither party has challenged this determination. In the instant action,
plaintiff asserts that he was nonetheless entitled to notice and a hearing under the VPA before the
conclusion of his employment as a sheriff’s deputy and that the County should have given him
an opportunity to choose which position he would vacate. In contrast, the County argues that
plaintiff was not entitled to the protections of the VPA because he made himself ineligible for
continued employment as a sheriff’s deputy by accepting a position on the Board.

        MCL 46.30a(1) of the CBCA makes clear that a member of any county board of
commissioners “shall not . . . be employed by . . . [an] authority of that county except as
otherwise provided by law.” MCL 46.30a(2) states that, in the case of “employment made in
violation of [MCL 46.30a], both the person making the . . . employment and the person . . .
employed shall be liable for moneys paid to the person as salary, wages, or compensation in
connection with the . . . employment.” More important is the fact that MCL 46.30a(4) states that
“[a] member of the county board of commissioners accepting . . . employment in violation of this
section” and “[a]n officer or other official . . . making an . . . employment in violation of this

                                                -5-
section is guilty of a misdemeanor, punishable by imprisonment for not more than 90 days, or a
fine of not more than $100.00, or both.”

        Consistent with the circuit court’s declaratory ruling in the Board’s previous lawsuit, and
considering the penalties set forth by MCL 46.30a, both plaintiff and Sheriff Hilts, as the county
authority employing plaintiff, would be liable for any salary or compensation paid in connection
with plaintiff’s continued employment as a sheriff’s deputy after he became a member of the
Board. Moreover, once plaintiff became a member of the Board, both he and Sheriff Hilts would
be criminally culpable under MCL 46.30a(4) for any period that plaintiff remained a sheriff’s
deputy with the County in violation of the CBCA.

      In spite of this fact, plaintiff argues that he was entitled to notice and a hearing under the
VPA before his employment as a sheriff’s deputy ceased. The relevant statutory provision of the
VPA, MCL 35.402, states, in pertinent part, the following:

                No veteran . . . holding an office or employment in any public department
       or public works of the state or any county, city or township or village of the state,
       except heads of departments, members of commissions,[3] and boards and heads of
       institutions appointed by the governor and officers appointed directly by the
       mayor of a city under the provisions of a charter, and first deputies of such heads
       of departments, heads of institutions and officers, shall be removed or suspended,
       or shall, without his consent, be transferred from such office or employment
       except for official misconduct, habitual, serious or willful neglect in the
       performance of duty, extortion, conviction of intoxication, conviction of felony, or
       incompetency; and such veteran shall not be removed, transferred or suspended
       for any cause above enumerated from any office or employment, except after a
       full hearing before the governor of the state if a state employee, or before the
       prosecuting attorney if a county employee . . . . [Emphasis added.]




3
  We note that this Court has previously stated that the “only veterans employed by state and
local governments who are not protected by the VPA are department heads, members of
commissions and boards, heads of institutions appointed by the governor, officers appointed by a
city’s mayor under the city’s charter, and first deputies of such people.” Jackson, 201 Mich App
at 175. Neither party suggests on appeal that this exception could apply to plaintiff to exclude
him from protection under the VPA regarding his challenge to the termination of his employment
as a sheriff’s deputy. Even assuming plaintiff is a member of a commission as contemplated by
the exception in MCL 35.402, it is clear from reading the statute as a whole that the exception
only applies when a veteran challenges his or her removal, suspension, or transfer “from such
office or employment,” for example, if plaintiff, as a county commissioner, was hypothetically
removed and challenged his removal from the Board. The exception is therefore inapplicable to
this case in which plaintiff, a county commissioner, is challenging his termination from an
unrelated public employment position with the County.


                                                -6-
As a condition precedent to removal, the statute further states that a veteran “shall be entitled to a
notice in writing stating the cause or causes of removal . . . at least 15 days prior to the hearing . .
. .” MCL 35.402.

        In our opinion, whether the notice and hearing requirements of MCL 35.402 apply to
plaintiff depends on whether plaintiff was “removed”4 from his employment as a sheriff’s
deputy. When the meaning of statutory language is clear, judicial construction is neither
required nor permitted. Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720;
691 NW2d 1 (2005). We accord to every word or phrase of a statute its plain and ordinary
meaning unless a statutory term has a special, technical meaning or is defined by the statute
itself. Casco Twp v Secretary of State, 472 Mich 566, 593 n 44; 701 NW2d 102 (2005).
Statutory provisions cannot be read in isolation, but must be read in context, giving meaning and
effect to the act as a whole. Robinson v Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010).

        The VPA does not define the word “removed,” but in the absence of a statutory definition
or a special, technical meaning, we may consult a dictionary to ascertain the plain and ordinary
meaning of a statutory term. See Koontz v Ameritech Servs, Inc, 466 Mich 304, 312; 645 NW2d
34 (2002). Merriam-Webster’s Collegiate Dictionary (11th ed), contains several definitions of
the word “remove,” which include, omitting definitions related to the transfer of a legal
proceeding from one court to another and the dismissal of an officeholder from office, “to
change the location, position, station, or residence of,” “to get rid of: ELIMINATE,” “to change
location, station, or residence,” and “to go away.” Although the conclusion of plaintiff’s
employment as a sheriff’s deputy could be said to constitute a change of his employment
position, this change was effectuated by plaintiff’s own voluntary conduct of running for, and
ultimately accepting, a position on the Board. In our opinion, the notice and hearing
requirements of MCL 35.402 were not triggered in this instance because plaintiff made himself
ineligible for continued employment as a sheriff’s deputy by accepting a position on the Board;
his employer did not “remove” him from his employment. Indeed, plaintiff removed himself
from employment by his voluntary action of assuming a position on the Board, particularly in the
face of the trial court’s prior ruling in the Board’s declaratory action against him and the
mandatory language of the CBCA.

        Admittedly, the verb “removed” as used in MCL 35.402 is written in the passive voice,
and some authority in Michigan suggests that when a verb is written in the passive voice, it does
not require that any particular person perform the specified action. See Perkovic v Zurich
American Ins Co, ___ Mich ___, ___; ___ NW2d ___ (2017) (Docket No. 152484), slip op at 8-
10 (interpreting the notice provision of MCL 500.3145(1), which was written in the passive
voice, as focusing on the content of the notice rather than on the person providing the notice); see
also Fields v Suburban Mobility Auth, 311 Mich App 231, 243-244; 874 NW2d 715 (2015)
(SHAPIRO, J., concurring) (“The operative phrase requiring provision of the notice is written in



4
  It is apparent from the record that plaintiff’s employment as a sheriff’s deputy ended shortly
after the circuit court issued its declaratory ruling in the Board’s previous lawsuit. Therefore,
plaintiff was clearly not “suspended” or “transferred” for purposes of MCL 35.402.


                                                  -7-
the passive voice, i.e., it does not require that any particular person provide the written notice,
only that it be provided within 60 days . . . .”). Considering the statutory term “removed” in
context, however, it is clear that the VPA is designed only to protect a qualifying veteran who
holds public employment from adverse employment action taken by his or her employer, not to
impose arduous notice and hearing procedures any time a veteran makes a voluntary career
move. See Sherrod, 244 Mich App at 523 (explaining that the VPA “entitles a veteran to notice
and a hearing before his employer may take any action against him with respect to his
employment”); see also Cleveland Bd of Educ v Loudermill, 470 US 532, 538; 105 S Ct 1487; 84
L Ed 2d 494 (1985) (explaining that once a state legislature confers a property interest in public
employment, an employer may not deprive the employee of that interest absent appropriate
procedural safeguards). The procedural safeguards of the VPA were not triggered in this case
because the conclusion of plaintiff’s employment as a sheriff’s deputy was effectuated by his
voluntary decision to accept an incompatible position on the Board, which made him ineligible
for continued employment as a sheriff’s deputy. Sheriff Hilts had no need to terminate plaintiff’s
employment because plaintiff rendered himself ineligible for continued employment once he
took the oath of office as a county commissioner. MCL 46.30a. The trial court therefore erred
by concluding that plaintiff was entitled to a VPA hearing and by granting his motion for
summary disposition.

        Further, to the extent plaintiff argues that he should have been given a reasonable amount
of time after the circuit court issued its declaratory ruling in the Board’s previous lawsuit to
decide which position he would keep and from which he would resign, we conclude that any
such argument lacks merit. Considering the circuit court’s declaratory ruling, at the moment
plaintiff became a member of the Board, he made himself ineligible for continued employment
as a sheriff’s deputy and rendered both himself and Sheriff Hilts criminally culpable if such
employment continued. See MCL 46.30a(4). The County was not obligated to subject itself to
criminal liability for any period of time while plaintiff attempted to maintain his illegal and
incompatible positions.

                                       IV. CONCLUSION

        Plaintiff was not entitled to the procedural protections of the VPA because the conclusion
of his employment as a sheriff’s deputy was effectuated by his voluntary acceptance of an
incompatible position on the Board, which made him ineligible for continued employment as a
sheriff’s deputy. The trial court therefore erred by concluding that plaintiff was entitled to a
VPA hearing and by granting his motion for summary disposition in this regard. Because




                                                -8-
plaintiff was not entitled to the protections provided by the VPA, the trial court should have
granted the County’s motion for summary disposition regarding plaintiff’s claims.5

       Reversed and remanded for entry of an order granting summary disposition in favor of
the County. We do not retain jurisdiction.



                                                              /s/ Michael F. Gadola
                                                              /s/ Mark T. Boonstra
                                                              /s/ Patrick M. Meter




5
   On appeal, the County raises numerous other arguments regarding why the trial court should
have granted its motion for summary disposition. Although it is not essential that we address
these alternative arguments, having concluded that summary disposition in favor of the County
should have been granted for the reasons already stated in this opinion, we take a moment to do
so here. First, we disagree with the County that plaintiff’s claims were barred by the doctrines of
res judicata and collateral estoppel. Whether the manner of plaintiff’s termination from his
employment as a sheriff’s deputy violated the procedural requirements of the VPA was not
litigated in the Board’s previous lawsuit, nor could it have been, because his employment did not
end until after the circuit court issued its declaratory ruling in the case. See Adair v State, 470
Mich 105, 121; 680 NW2d 386 (2004) (explaining that one element of res judicata requires that
the matter in the second case was or could have been resolved in the first); Monat v State Farm
Mut Ins Co, 469 Mich 679, 683; 677 NW2d 843 (2004) (explaining that collateral estoppel
requires that an issue be actually litigated and necessarily determined to preclude its relitigation).
We also disagree with the County that plaintiff’s claim that he was entitled to a VPA hearing is
moot because the only remedy available under the VPA is reinstatement to the prior employment
and possible back pay, which was prohibited by the CBCA. This Court has held that the
immediate remedy for failure to hold a hearing when it is required under the VPA is the
provision of the hearing to which the employee is entitled. Jackson, 201 Mich App at 177;
Valentine v McDonald, 371 Mich 138, 147; 123 NW2d 227 (1963). We would agree, however,
that plaintiff was not entitled to a writ of superintending control. The distinction between actions
for mandamus and for superintending control is often confused. Choe v Flint Charter Twp, 240
Mich App 662, 665-667; 615 NW2d 739 (2000). Although both serve as vehicles for compelling
the performance of a clear legal duty, a writ of superintending control is directed toward lower
courts or tribunals while a writ of mandamus is directed toward public officials. See Jones v
Dep’t of Corrections, 468 Mich 646, 658; 664 NW2d 717 (2003); In re Payne, 444 Mich 679,
687-689; 514 NW2d 121 (1994). In this case, plaintiff’s action is based on the theory that the
Lake County prosecutor, not a lower court or tribunal, failed to perform a clear legal duty to
afford him a hearing under the VPA. Plaintiff has failed to demonstrate entitlement to such a
hearing for the reasons already stated in this opinion, but regardless, the appropriate remedy
would have been to seek a writ of mandamus, rather than superintending control.


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