STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6061

April 26, 1982

CIVIL SERVICE:

Fire and police--hearing before commission on reprimand letter

LABOR AND EMPLOYMENT:

Appeals on disputes arising from collective bargaining agreement to a fire/police civil service commission

A member of a city fire or police department subject to 1935 PA 78 may request a hearing before the civil service commission relating to a letter of reprimand placed in his or her file

A city fire and police civil service commission may hear appeals on matters which are the subject of a dispute arising from a collective bargaining agreement negotiated between the city and the collective bargaining agents of the fire and police department employees as provided in the collective bargaining agreement.

Honorable William Faust

State Senator

The Capitol

Lansing, Michigan 48909

Honorable Thomas H. Brown

State Representative

The Capitol

Lansing, Michigan 48909

Referring to the City of Westland and citing the civil service act for police and fire departments, 1935 PA 78, as amended; MCLA 38.501 et seq; MSA 5.3351 et seq, you have requested my opinion upon two questions. Your first question is:

1935 PA 78, supra, has been adopted by the City of Westland for both its police department and its fire department and, in addition, the City of Westland has negotiated and executed collective bargaining agreements, pursuant to the public employment relations act (PERA), 1947 PA 336, as amended; MCLA 423.201 et seq; MSA 17.455(1) et seq, with the Westland Police Officers Association, the Westland Fire Fighters Association, and the Westland Lieutenants and Sergeants Association. The following provisions appear in the collective bargaining agreement between the City of Westland and the Westland Police Officers Association, and comparable provisions appear in the other two collective bargaining agreements:

Article 32 of such Agreement provides for grievance procedures, defining the term 'grievance':

Article 32 also provides that grievances shall be processed through a five-step procedure, the fifth of which is arbitration:

Article 32.11 provides for review by the civil service commission if the grievance is not adjusted by arbitration. Thereafter, the employee has the immediate right of appeal to the Wayne County Circuit Court. Article 32.20(g) provides that if the civil service commission should rule that it has no jurisdiction to hear the grievance, then the grievant may elect to appeal directly to the Wayne County Circuit Court, or proceed through the arbitration procedure.

Letters of reprimand constitute a disciplinary measure, albeit the immediate sanction may not result in a loss or reduction of pay or position; an accumulation of such letters may result in disciplinary measures having a more serious effect. The city and the employees unions have collectively bargained on letters of reprimand and grievance procedures. Dissatisfaction with a disposition on a letter of reprimand would entitle an employee to pursue grievance procedures contained in the collective bargaining agreement, which may or may not culminate in a hearing before the civil service commission, depending upon the steps initiated by the grievant. For example, the grievant may, at step 5 of the grievance procedures, opt to bypass arbitration and proceed to the civil service commission, in which case he or she would be entitled to a hearing; or the grievant may choose to submit the grievance to arbitration.

1935 PA 78, supra, Sec. 9, requires civil service commissions to file and consider statements of an employee's attitude and efficiency, and such other matters as may have a bearing on promotion, transfer, or discharge. Letters of reprimand constitute a form of punishment since they become a part of the employee personnel file. In the event more than one letter of reprimand becomes a part of the file, the letters may impact decisions of the municipal authorities affecting the continued welfare of the employee. 1935 PA 78, supra, Sec. 14, precludes punishment of an employee, except for cause, and entitles the employee to a hearing at his or her request when punishment is imposed.

In addition, the Supreme Court has considered PERA, supra, in light of other legislation, city charters, and civil service regulations, and has held that to the extent of any repugnancy between PERA and the other legislation, PERA is dominant and controlling. In Local 1383, International Association of Fire Fighters, AFL-CIO v City of Warren, 411 Mich 642, 662-663; ---- NW2d ---- (1981), the Supreme Court stated in part:

See also, Detroit Police Officers Association v Detroit, 391 Mich 44; 214 NW2d 803 (1974); Wayne County Civil Service Commission v Board of Supervisors, 384 Mich 363; 184 NW2d 201 (1971); Rockwell v Crestwood School Dist Board of Education, 393 Mich 616; 227 NW2d 736 (1975); Central Michigan University Faculty Association v Central Michigan University, 404 Mich 268; 273 NW2d 21 (1978); and Pontiac Police Officers Association v City of Pontiac, 397 Mich 674; 246 NW2d 831 (1976). Where there is no conflict between PERA and other legislation, the respective statutes will be harmonized and effect will be given to both. Detroit Police Officers Association v Detroit, supra, 391 Mich at 65, n. 13. Therefore, in a municipality having adopted 1935 PA 78, supra, and collective bargaining agreements under PERA, supra, the two statutes will be reconciled. If conflict arises on a mandatory subject of collective bargaining, PERA controls.

Thus, 1935 PA 78, Secs. 9 and 14, supra, the collective bargaining agreements, and the civil service regulations all entitle an employee to a hearing when a letter of reprimand is placed in the employee's personnel file.

It is my opinion, therefore, that employees of the Westland fire and police departments are at their option entitled to a hearing before the Westland Fire and Police Civil Service Commission on disciplinary matters such as letters of reprimand.

Your second question is:

As indicated in Detroit Police Officers Association v Detroit, supra, PERA, supra, and other legislation will be harmonized where there is no conflict; when there is repugnance, PERA will prevail. The Westland Fire and Police Civil Service Commission has jurisdiction and authority to entertain appeals pursuant to 1935 PA 78, supra, and also pursuant to the police and fire collective bargaining agreements negotiated under PERA, supra, upon the terms and conditions provided for in those agreements. When the exercise of jurisdiction by the Westland Fire and Police Civil Service Commission under 1935 PA 78, supra, is consistent with the terms of the collective bargaining agreements, as under the circumstances discussed above, then such jurisdiction is appropriate. When the exercise of jurisdiction is not consistent with the collective bargaining agreements, then the authority of the police and fire civil service commission is 'diminished pro tanto.' Local 1383, supra.

It is my opinion, therefore, that the Westland Fire and Police Civil Service Commission does have jurisdiction to hear appeals on matters collectively bargained, so long as the exercise of such jurisdiction is consistent with the collective bargaining agreements under PERA, supra.

Frank J. Kelley