JACK M MOULIK V MICHAEL D ROBINSON
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STATE OF MICHIGAN
COURT OF APPEALS
JACK M. MOULIK,
UNPUBLISHED
June 1, 1999
Plaintiff-Appellant,
v
THE STATE POLICE RETIREMENT SYSTEM and
THE STATE POLICE RETIREMENT BOARD,
No. 200087
Ingham Circuit Court
LC No. 94-0777-7 AA
Defendants-Appellees.
JACK M. MOULIK,
Plaintiff-Appellant,
v
RITA PONTZ, MICHAEL D. ROBINSON,
THOMAS A. TALIAFERRO, DIANE K. DEWITT,
P. D. CHANEY, JAMES NEUBECKER, THE
STATE POLICE RETIREMENT BOARD, THE
STATE POLICE RETIREMENT SYSTEM,
MICHIGAN STATE POLICE, DEPARTMENT OF
MANAGEMENT & BUDGET, and THE STATE
OF MICHIGAN,
jointly and severally,
No. 204527
Ingham Circuit Court
LC No. 95-080849 CZ
Defendants-Appellees.
JACK M. MOULIK,
Plaintiff-Appellant,
v
No. 204528
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MICHAEL D. ROBINSON, THOMAS A.
TALIAFERRO, DIANE K. DEWITT, P. D.
CHANEY, JAMES NEUBECKER, THE STATE
POLICE RETIREMENT BOARD, THE STATE
POLICE RETIREMENT SYSTEM, MICHIGAN
STATE POLICE, DEPARTMENT OF
MANAGEMENT & BUDGET, and THE STATE
OF MICHIGAN, jointly and severally.
Court of Claims
LC No. 95-015812 CM
Defendants-Appellees.
Before: Cavanagh, P.J., and Markman and Smolenski, JJ.
MARKMAN, J. (concurring).
I concur with the results of the majority’s opinion in this case reversing the forfeiture of plaintiff’s
retirement benefits. I specifically join the majority in rejecting various arguments raised by defendants,
including those asserting that (1) the “public interest” forbids pension benefits for plaintiff; (2) § 24(1)
prohibits plaintiff from receiving benefits; (3) plaintiff was not entitled to the accrual of retirement credits
during the period of his embezzlement; (4) plaintiff was not entitled to the accrual of retirement credits
during his training period; and (5) plaintiff’s earliest effective date of retirement must be later than the
date on which he purported to retire, May 24, 1993. However, I agree with the trial court that plaintiff
“does not cite and the Court cannot find any authority for the view that the appointing authority could
not lawfully pursue to completion the disciplinary process put in motion” prior to plaintiff’s retirement.
Therefore, I write separately to further discuss this issue, although I ultimately join in the reversal of this
case.
I agree with the majority that plaintiff had over twenty-five years of “credited service” when he
gave notice of his retirement pursuant to § 24(1) of the retirement act on May 24, 1993. However, I
disagree that this conclusion, by itself, mandates that we turn immediately and solely to the plain
language of §24(1) in order to resolve the forfeiture issue. Instead, I agree with the trial court that,
since the state police had already suspended him, begun an investigation against him, and, in fact, held a
disciplinary conference that resulted in a recommendation that he be discharged before he retired,
plaintiff was under the jurisdiction of the state police with regard to discipline even after he gave notice
of his ‘retirement.’ The trial court stated:
[I]t is of no consequence that Petitioner tendered his resignation before the departmental
director could formally dismiss him. Petitioner is mistaken in suggesting that resignation
and termination from employment are mutually exclusive such that a civil servant’s
resignation automatically precludes a later discharge for cause. This Court has no
difficulty accepting the factual claim that Petitioner did resign and apply for retirement on
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May 24, 1993. That does not mean, however, that the resignation short-circuited the
ongoing disciplinary process begun earlier. That process was independent of any
personal decision of Petitioner to resign and seek retirement. Petitioner does not cite
and the Court cannot find any authority for the view that the appointing authority could
not lawfully pursue to completion the disciplinary process put in motion well before this
precipitous resignation under charges took place. Thus, the Trial Board’s proceedings
and decision and the ultimate dismissal for cause were not nullified by Petitioner’s prior
resignation. [Footnotes omitted.]
I fully agree that plaintiff’s notice of his ‘retirement’ did not instantly disengage the disciplinary
proceedings against him. Although the majority states that “the trial court’s conclusion that plaintiff
could be dismissed for breach of the public trust, even after he effectively retired, finds no support in the
law and therefore is clearly erroneous,” the citation that follows does not support this statement.
Schultz v Oakland Co, 187 Mich App 96, 98; 466 NW2d 374 (1991), holds only that a public
employee’s resignation is effective as soon as it is submitted, regardless of formal acceptance; thus the
plaintiff in Schultz could not automatically withdraw his resignation and complain of a “discharge”
because he was not automatically reinstated. Schultz did not address the specific question at issue here,
i.e. whether a resignation renders ineffectual a disciplinary action already in progress. Similarly, the case
on which Schultz relies, Stearns v Bd of Fire and Police Comm’rs of the City of Carbondale, 59 Ill
App 3d 569; 375 NE2d 877 (1978), does not address the specific issue here. Although Stearns is
more factually similar to the instant case than Schultz-- the plaintiff in that case allegedly committed a
crime on September 24, resigned from service on September 25, then was discharged after a hearing
before the city manager on September 26-- there is no evidence showing that formal disciplinary
proceedings had been initiated before the plaintiff resigned. Since there is no discussion or
consideration in Stearns whether an ongoing disciplinary process would affect the plaintiff’s resignation,
this opinion does not offer significant guidance in the instant case.
Instead, contrary to the majority’s position, there is support in the law for the proposition that
the disciplinary proceedings could continue even after plaintiff gave notice of his retirement. In Matter
of Probert, 411 Mich 210, 222; 308 NW2d 773 (1981), the Supreme Court held that where formal
disciplinary proceedings were instituted against a judge who then left his judicial office before the Court
could actually discipline him, the former judge was not beyond the Court’s disciplinary reach. The
Court recognized that “it is difficult to conceptualize how one who does not hold judicial office could be
suspended, retired, or removed from office.”1 However, it stated that discipline could still be applied
through a “conditional suspension,” which would disengage the disciplined party from judicial power if
that party occupied another judicial office in the future, and that censure was applicable to both current
and former judges. Id. at 224. Thus, a judicial discipline case does not become moot when the judge
leaves office because effective relief can still be granted and a controversy still exists. Id. at 226. The
Court stated:
A judge charged with misconduct should not have the power, simply by leaving office,
to short-circuit investigation of the allegations against him, leaving the proceedings
incomplete and subject to the abrasion of time. [Id. at 226-27.]
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In my judgment, the conclusions of Probert apply equally well to the case at hand. Obviously,
the disciplinary process initiated by the Board here could not have practically forced plaintiff from his
position with the police force since plaintiff had ‘retired’ under duress prior to this time. However, I do
not believe that this Court should be so quick to transform the Board’s disciplinary process into a nullity
merely because one of the potential consequences of that process has been short-circuited by the
unilateral actions of the investigated party in announcing his ‘retirement’ before he could be fired. In my
judgment, the ancillary effects of a dismissal, as well as various other disciplinary procedures that might
be afforded under the law, were still practically available and viable in the instant circumstance. I see no
statutory barriers to allowing the disciplinary process to proceed to its natural closure, and imposing
upon a disciplined party whatever sanctions remain applicable. Indeed, I believe that, as in Probert, it
would be unwise to allow those police officers with the most seniority to short-circuit the disciplinary
process.2 Thus, in my judgment, the Trial Board’s termination of plaintiff was fully effective, even
though the most obvious effect of this discipline, the prevention of plaintiff’s return to work and future
payment, would not have practically affected plaintiff by the time that it was imposed. However, even if
the termination itself was largely academic as a result of plaintiff’s prior ‘retirement,’ certainly other
sanctions remained viable and were effective against plaintiff. Merely because plaintiff was able to
effectively deprive the Board of one of its sanctions-- forced dismissal-- does not mean that plaintiff
should be able to deprive the Board of all sanctions within its statutory authority.
Unfortunately, regardless whether the Board actually terminated plaintiff or merely had the
authority to impose other discipline upon plaintiff because he had already retired, it appears that the
Board did not have the authority, under the circumstances of this case, to take away plaintiff’s § 24
retirement benefits. I agree with the majority that § 24 is clear and unambiguous and does not contain
the provision of §233 and § 304 mandating the forfeiture of benefits where there is a “breach of the
public trust.” I agree with the majority that “the omission of a provision from one part of a statute,
which is construed in another part, should be construed as intentional.” Farrington v Total
Petroleum, 442 Mich 201, 210; 501 NW2d 76 (1993). Since, in my judgment, plaintiff was indeed
terminated for a breach of the public trust, I believe that the Board conceivably could have forfeited the
benefits provided for in either § 23 or § 30. However, because plaintiff fulfilled the requirements of his
‘automatic retirement’ contract by completing twenty-five years and applying for benefits under § 24, he
had a vested right to his § 24 pension benefits. He applied only for these § 24 benefits which did not
require compliance with a public trust provision, so the Board did not have a statutory basis for denying
him § 24 benefits.
The majority ends its discussion at this point, although I do not believe that the mere lack of the
“breach of the public trust” language in § 24 would necessarily prohibit the Board’s forfeiture action on
some other basis, such as another statute or administrative rule. The absence of a forfeiture provision in
§ 24 merely precludes forfeiture where there is no other enabling law; it does not affirmatively preclude
forfeiture in every conceivable circumstance, as evidenced by the recent enactment of the public
employees retirement benefits forfeiture act, MCL 38.2701 et seq.; MSA 3.982(1) et seq. Even if a
plaintiff could effectively retire while in the midst of a disciplinary proceeding, I believe that it is possible
to enact a statute or administrative rule that forfeits pension benefits on the basis of the plaintiffs breach
of the public trust and not merely on the basis of his ‘dismissal’ for such breach. However, it does not
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appear that such a statute or rule had been enacted at the time that plaintiff was disciplined in this case.5
Thus, it appears that the Board did not have the authority, statutory or otherwise, to forfeit plaintiff’s
§ 24 pension benefits.
This conclusion is supported first by two opinions of the attorney general. OAG, 1977-1978,
No 5188, p 116 (May 5, 1977) states:
[I]n the absence of legislation imposing a condition of faithful performance, the applicant
who meets the age and credited service requirements of the Act . . . may not be denied
a retirement allowance because he was discharged from state employment because of a
conviction of a misdemeanor involving state property.
Although this opinion dealt with a different retirement statute than that at issue here, the reasoning
applies to the statutory retirement benefits at hand because it is extrapolated from the Const 1963, art 9,
sec 24 provision which states that “[t]he accrued financial benefits of each pension plan and retirement
system of the state and its political subdivisions shall be a contractual obligation thereof which shall not
be diminished or impaired thereby.” OAG, 1985-1986, No 6301, at 103 (June 14, 1985) repeated
the holding of OAG, No 5188, supra, and further stated that it was the “intent of the framers that the
harsh common law rule of forfeiture of retirement benefits upon conviction of a crime committed during
the course of employment was to be supplanted by a rule that the . . . benefits . . . are a contractual
obligation.” Thus, where there is no specific authority allowing forfeiture, a plaintiff under the state
retirement system may apply for retirement either before or after a disciplinary proceeding and be
entitled to full benefits. Second, the conclusion that the Board did not have the authority to forfeit § 24
benefits is supported by the Michigan State Police Department’s own official order. Michigan State
Police Official Order No. 30, issued October 7, 1991 to members of the department, provides, in
paragraph 9(A):
A member of the department electing to retire or take a deferred retirement after a
disciplinary investigation has been initiated against him/her will not be eligible to receive
or purchase a departmental retirement badge, identification card, or for enforcement
officers, their departmental weapon. Such member will also not be eligible to receive or
purchase any other departmental accoutrements otherwise permitted by this order
without the approval of the Director. This will not affect the monetary benefits a
retiring employee is entitled to under the pension system. [Emphasis added.]
Thus, it appears that the Department itself was either aware of the lack of authority for forfeiting an
officer’s ‘automatic retirement’ benefits or specifically determined that forfeiture was not to be part of
the discipline for officers eligible for retirement benefits regardless of any authority.
Accordingly, I find that I am constrained to join the majority’s reversal of the circuit court’s
decision and conclude that plaintiff is entitled to his § 24 retirement benefits despite his obvious breach
of the public trust. I fully join in the majority’s reluctance to reverse this case. However, I believe that
plaintiff’s strategy in retiring before he could be formally dismissed for his breach of the public trust did
not work to disengage him from the disciplinary process that was ongoing before his preemptive
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retirement. While there were apparently no laws or rules in place that could have been used to forfeit
plaintiff’s pension, I believe that any disciplinary action for which authority had been provided could
have been imposed upon plaintiff regardless of his ‘retirement.’ The ongoing disciplinary proceedings
could not be short-circuited by plaintiff’s unilateral actions and the Board continued to have disciplinary
jurisdiction even after he attempted to leave the department.
/s/ Stephen J. Markman
1
The Supreme Court authority to discipline members of the state judiciary flows, in part, from Const
1963, art 6, § 30, which allows the Court to “censure, suspend with or without salary, retire or remove
a judge.”
2
A `retirement’, such as that which occurred in this case, would only be effective in preserving an
officer’s pension benefits if he had already accrued the necessary retirement time at the point of such
retirement.
3
MCL 38.1623(2); MSA 5.4002(23)(2) provides:
A member who resigns, dies, is transferred to a position not covered by the retirement
system, or is dismissed for a reason other than his or her retirement or breach of
the public trust, upon application is entitled to receive in a lump sum, payable to him or
her or his or her legal representative if the member dies or is legally disabled, 100% of
the contributions made into the reserve for employee contributions. [Emphasis added.]
4
MCL 38.1630(1); MSA 5.4002(30)(1) provides:
A member who resigns, dies, is transferred to a position not covered by the retirement
system, or is dismissed for a reason other than his or her retirement or breach of
the public trust, and who meets the requirements of subsection (3) or who has been a
member under this act or former Act No. 251 of the Public Acts of 1935, or both, for
10 or more years, is entitled to a deferred retirement allowance in lieu of a payment of a
refund of his or her contributions as provided in section 23. . . . [Emphasis added.]
5
In addition, it appears that in this case, an administrative rule may conflict with the express language of
§ 24 that a “member retiring under this subsection shall be entitled to receive a retirement allowance . .
. ,” MCL 38.1624(1); MSA 5.4002(24)(1). See MCL 38.1607(4); MSA 5.4002(4)(1); MCL 28.9;
MSA 4.439; MCL 28.12; MSA 4.442.
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