BONNIE L HOFF V JACK LEADBETTER
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STATE OF MICHIGAN
COURT OF APPEALS
BONNIE L. HOFF,
Plaintiff-Appellant/Cross-Appellee,
v
SANDRA SPOELSTRA, SUZANNE
KENSINGTON, and CITY OF MARQUETTE,
UNPUBLISHED
July 8, 2008
No. 272898
Marquette Circuit Court
LC No. 05-042405-CD
Defendants-Appellees/CrossAppellants,
and
GERALD R. PETERSON, JERRY IRBY, and STU
BRADLEY,
Defendants-Appellees.
BONNIE L. HOFF,
Plaintiff-Appellee,
v
JACK LEADBETTER, TIMOTHY DEAN, and
KARL A. WEBER,
Defendants,
and
SANDRA SPOELSTRA and GERALD
PETERSON,
Defendants-Appellants.
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No. 275979
Marquette Circuit Court
LC No. 05-042890-NO
BONNIE L. HOFF,
Plaintiff-Appellee,
v
JACK LEADBETTER, TIMOTHY DEAN, and
KARL A. WEBER,
No. 276054
Marquette Circuit Court
LC No. 05-042890-NO
Defendants,
and
SANDRA SPOELSTRA and GERALD
PETERSON,
Defendants-Appellants.
BONNIE L. HOFF,
Plaintiff-Appellant,
v
JACK LEADBETTER, SANDRA SPOELSTRA,
and GERALD PETERSON,
No. 276257
Marquette Circuit Court
LC No. 05-042890-NO
Defendants,
and
TIMOTHY DEAN and KARL A. WEBER,
Defendants-Appellees.
Before: Whitbeck, P.J., Jansen and Davis, JJ.
PER CURIAM.
This case involves several consolidated cases, all arising out of the Marquette City
Commission’s termination of the City Attorney, plaintiff Bonnie Hoff. Hoff served as
Marquette’s City Attorney from February 1, 2001, through January 31, 2005, when a majority of
Marquette’s City Commission, consisting of defendants Sandra Spoelstra, Suzanne Kensington,
Jerry Irby, and Stu Bradley, voted to terminate her.
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In Docket No. 272898,1 Hoff appeals as of right the trial court’s August 2006 order
granting defendants the City of Marquette (the City), Spoelstra, Kensington, Irby, Bradley, and
City Manager Gerald Peterson summary disposition on Hoff’s claims of interference with
advantageous business relationship and conspiracy, intentional infliction of emotional distress,
and violation of the Elliott-Larsen Civil Rights Act2 (ELCRA). Hoff also appeals the trial
court’s grant of summary disposition in favor of Irby and Bradley on her claim of violation of the
Open Meetings Act3 (OMA). The City, Spoelstra, and Kensington cross-appeal the trial court’s
grant of summary disposition in Hoff’s favor on her claim of violation of the Open Meetings Act
against them.
In Docket No. 275979,4 Spoelstra and Peterson appeal as of right the trial court’s January
19, 2007 order denying them summary disposition on their claimed entitlement to governmental
immunity. In Docket No. 276054, Spoelstra and Peterson appeal by leave granted from the
portions of the same order denying them summary disposition on the merits of Hoff’s claims of
intrusion upon seclusion, public disclosure of private facts, civil extortion, and intentional
infliction of emotional distress.
And in Docket No. 276257, Hoff appeals by delayed leave granted the portion of the trial
court’s January 11, 2007 order granting defendants attorney Timothy Dean and attorney Karl
Weber summary disposition on her claims of intrusion upon seclusion, public disclosure of
private facts, civil extortion, and intentional infliction of emotional distress.
We affirm in part and reverse in part.
I. Basic Facts And Procedural History
A. Factual History Of The Underlying Cases
In December 2000, Hoff was offered and accepted the position of City Attorney for the
City. Hoff alleges that she thereafter suffered numerous instances of alleged discrimination
during her employment with the City.
According to Hoff, throughout her years as City Attorney, City Manager Peterson
allegedly expressed displeasure with her serving as City Attorney. Hoff alleged that Peterson’s
dislike of her “reached a point of blatant disrespect” in September 2003 when Peterson disagreed
with Hoff over a legal question, and then-Mayor Irby chose to follow Peterson’s advice. Hoff
alleged that her relationship with both Peterson and Irby “deteriorated markedly” after that.
1
All claims in COA Docket No. 272898 arise of out Hoff v Spoelstra, Marquette Circuit Docket
No. 05-042405-CD.
2
MCL 37.2101 et seq.
3
MCL 15.261 et seq.
4
All claims in COA Docket Nos. 275979, 276054, and 276257 arise out of Hoff v Leadbetter,
Marquette Circuit Docket No. 04-042890-NO.
-3-
In May 2004, a special meeting was called, and the agenda included an item regarding
discussion of “‘the confidentiality of City Attorney reports[.]” During the meeting, the City
Commission went into closed session, presumably to discuss the confidentially issue. However,
after the closed session, Bradley, seconded by Irby, moved to terminate Hoff’s employment. The
motion was unsuccessful, but the next day, Bradley allegedly made a “defamatory statement” to
a news reporter, stating “that he and ‘enough of us’ (commissioners) had ‘lost trust’ in the City
Attorney.”
In September 2004, Peterson allegedly threatened Hoff with the elimination of her
department, stating that “she ‘did things very differently then her predecessor’ and that there
were ‘consequences to her decisions.’” At a closed session of the City Commission in lateSeptember 2004, Peterson “had a temper tantrum, shouted, labeled [Hoff] as an ‘empire builder’,
said she was ‘bad for the City,’ repeatedly pointed his finger at her in a demeaning fashion and
suggested that either ‘she go or he would go.’” Shortly thereafter, Peterson allegedly informally
submitted to Irby and Bradley a handwritten, purported resignation letter suggesting that either
he or Hoff would “have to go.”
On October 8, 2004, Hoff’s counsel wrote a letter to Irby, stating that Hoff had been
exposed to a hostile work environment and stated that “[m]ore than one citizen has noted the
sexism inherent in that position.” Hoff’s counsel stated that this alleged behavior would no
longer be tolerated. Hoff’s counsel also forwarded the letter to the City Commission.
In January 10, 2005, Hoff received a letter from a Marquette Circuit judge, disclosing
that the City had retained his son, attorney Karl Weber, “regarding various labor/employment
issues relating to employees who serve at the pleasure of the commission.” Hoff then sent a
memorandum to the City Commission, questioning the propriety of the City hiring outside
counsel. Later that month, Hoff’s counsel received a letter from Weber informing Hoff’s
counsel that the City had retained Weber to provide legal representation relative to Hoff’s
allegations against the City.
On January 31, 2005, the date of the next regularly scheduled City Commission meeting,
two commissioners allegedly contacted Hoff and informed her that she might be terminated at
the meeting that day. According to Hoff, these two commissioners told her that Spoelstra and
Kensington “had been ‘making the rounds,’ and bearing documents regarding work [Hoff] had
done for the Commission—long before either new Commissioner began her tenure on the
Commission.” Spoelstra had allegedly told others that she “‘lacked trust’” in Hoff. At the
January 31 meeting, Bradley moved to add an agenda item regarding the contract with the City
Attorney. Following Bradley’s agenda motion, he moved to terminate the Hoff’s contract, but he
was ruled out of order. Bradley then slipped the “pre-written motion” to Kensington, who then
read the motion, which Bradley then seconded. By a 4-3 vote, with Spoelstra, Kensington, Irby,
and Bradley voting in favor of the motion, the City Commission terminated Hoff’s contract.
According to Hoff, the manner of her termination suggested “‘political intrigue’” and resulted in
an immediate recall drive against Spoelstra, Kensington, Irby, and Bradley.
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B. Procedural History
(1) Docket No. 272898
In early March 2005, Hoff filed a seven-count complaint in Marquette Circuit Court (Hoff
v Spoelstra), claiming, in pertinent part, that she was improperly dismissed from her position,
and claiming violation of the OMA against Spoelstra, Kensington, Irby, and Bradley;
interference with advantageous business relationship and conspiracy against Peterson, Irby, and
Bradley; violation of the ELCRA against Spoelstra, Kensington, Irby, Bradley, and the City; and
intentional infliction of emotional distress against Spoelstra, Kensington, Irby, Bradley, Peterson,
and the City.
Hoff moved for partial summary disposition of her ELCRA claims against the City and
Irby, arguing that there was no genuine issue of material fact that she was subjected to a hostile
work environment because of “her status as a female” and that her termination was in direct
retaliation to her engaging in the protected activity of complaining about her treatment. The trial
court denied the motion on the ground that there were genuine issues of material fact,
“particularly with respect to engagement in a protected activity, but also . . . other matters, as
well.”
Peterson, Spoelstra, Kensington, Irby, and Bradley then moved for summary disposition,
arguing that, as the highest executive officials in Marquette acting within the scope of their
authority, they were absolutely immune from Hoff’s tort claims. They further argued that,
regardless of their immunity, Hoff’s intentional infliction of emotional distress claim was
without merit. With respect to Hoff’s OMA violation claim, Spoelstra, Kensington, Irby, and
Bradley further argued that there was no allegation that they intentionally violated the act; that
Hoff presented nothing more than an insufficient, conclusory statement that the rights of the
public had been impaired; and that there was no evidence that the alleged meetings constituted
“meetings,” as defined by the act, which requires that a quorum be present and a decision
rendered that concerns a matter of public policy.5 Spoelstra, Kensington, Irby, and Bradley also
argued that Hoff’s ELCRA violation claim was wholly without merit. The City adopted
Spoelstra, Kensington, Irby, and Bradley’s arguments.
The trial court issued a detailed opinion and order denying summary disposition on the
OMA violation claims, but granting summary disposition on the remainder of Hoff’s claims.
More specifically, with respect to Hoff’s interference with advantageous business relationship
and conspiracy claims against Peterson, Irby, and Bradley, the trial court held that, as the highest
city officials, they were entitled to absolute immunity. Regarding Hoff’s intentional infliction of
emotional distress claims against Spoelstra, Kensington, Irby, Bradley, Peterson, and the City,
the trial court agreed that the claim was without merit and barred by immunity.
With respect to Hoff’s claim of violation of the ELCRA against Spoelstra, Kensington,
Irby, Bradley, and the City, the trial court noted that Hoff’s only known complaint regarding the
5
See MCL 15.262(b).
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alleged discrimination against her was the one-sentence comment contained in her counsel’s
October 8, 2004 letter to the commissioners, noting “sexism inherent in that position.” The trial
court then found that “nothing whatsoever” supported Hoff’s cause of action under the ELCRA,
explaining as follows:
Without question, Ms. Hoff’s work environment was not pleasant, and that
environment might well be described by some as hostile. Without question, Ms.
Hoff is a female. One cannot leap, however, from the fact that she is a female
working in a less than pleasant environment, to a conclusion that that less than
pleasant environment is due to the fact that she is a female.
Finally, turning to Hoff’s claim of violation of the OMA against Spoelstra, Kensington, Irby, and
Bradley, the trial court held as follows:
[I]t is clear from the various exhibits submitted by the parties . . . , specifically
including the Affidavits of Commissioners Spoelstra and Kensington, that the
same type of Open Meetings Act violation found by the Court in Booth
Newspapers v University of Michigan Board of Regents,[6] may well have
occurred during the private “get togethers” between various subgroups of the
Marquette City Commission that each involved, admittedly, less than a quorum of
the Board. Such a conclusion . . . is supported by the fact that the Board
terminated the contact of one of the two highest City employees, Ms. Hoff, the
City Attorney, at the January 31, 2005, city commission meeting without a whit of
discussion and with no stated reason. Even the most naïve and trusting observer
would conclude that something more than an exchange of pleasantries, which
involved the topic of Attorney Hoff’s termination, took place at the non-public
subgroup meetings. [Emphasis in original.]
The trial court later granted Hoff’s motion to amend her complaint to add the City as a party to
her OMA violation claim.
Hoff then moved for summary disposition of her OMA claim, arguing that there was no
question of material fact that, with Irby and Bradley’s knowledge, Spoelstra and Kensington
engaged in individual meetings with the other three commissioners with the intent to circumvent
the OMA, and that the meetings were intended to reach a decision on the public matter of Hoff’s
employment as a city official. More specifically, Hoff pointed to deposition testimony that
evidenced that during the day before the City Commission meeting on January 31, 2005,
Spoelstra and Kensington had three separate meetings with each of the three other
commissioners to discuss Hoff. Hoff pointed out that Kensington testified that she knew the
OMA prohibited the commissioners from meeting in groups consisting of more than three
members. And Spoelstra confirmed that she was careful to make sure that she and Kensington
6
Booth Newspapers v Univ of Mich Board of Regents, 192 Mich App 574; 481 NW2d 778
(1992), aff’d in part and rev’d in part 444 Mich 211 (1993).
-6-
went to visit the other three commissioners one at a time because having four commissioners
together discussing city business would be a violation of the OMA.
Spoelstra, Kensington, Irby, Bradley, and the City moved for summary disposition,
arguing that there was no genuine issue of material fact that no decision regarding an issue of
public policy was made during the allegedly improper meetings. They asserted that the decision
to terminate Hoff was not made until the public meeting by a 4-3 vote. They also asserted that
even though Spoelstra and Kensington admittedly went to visit the other commissioners, they did
not do so with intent to make a decision regarding Hoff’s termination. They also claimed that
neither Spoelstra nor Kensington knew that Bradley was going to move to terminate Hoff at the
meeting. They also pointed out that neither Spoelstra nor Kensington ever specifically attempted
to secure the other commissioners’ termination vote. They argued that because Hoff was an at
will employee who the City could terminate at any time, with or without cause, the fact that they
failed to explain on the record the reasons behind their decision to terminate was not a violation
of the OMA.
The trial court issued a detailed order granting Irby and Bradley summary disposition, but
granting Hoff summary disposition as to Spoelstra, Kensington, and the City. More specifically,
the trial court first stated its conclusions that the City Commission was a public body, a quorum
of which is four members, and that a decision to terminate the City Attorney was a matter of
public policy. The trial court then stated, “Obviously, a formal decision terminating City
Attorney Hoff’s employment was not rendered until the meeting of January 31, 2005, which no
one has suggested was not conducted in compliance with the Open Meetings Act.” However, the
trial court found it significant that, through Spoelstra and Kensington’s meetings with the three
other commissioners, five commissioners had been directly involved in “deliberation” of the
appropriateness of Hoff continuing as City Attorney. The trial court specifically concluded that
“the several meetings constituted far more than ‘. . . an informal canvas by one member of a
public body to find out where the votes would be on a particular issue, . . . [.]’”7 The trial court
further found that Spoelstra and Kensington conducted the meetings with the intent to avoid the
OMA and that the meetings constituted a constructive quorum.
Turning to Irby and Bradley, the trial court found that their conduct did not violate the
OMA. The trial court noted that both of them publicly made known their dissatisfaction with
Hoff; but the trial court concluded that their mere awareness of Spoelstra and Kensington’s
“quest” “was far different than participation in the sub-quorum meeting plan.” Ultimately, the
trial court held that Spoelstra and Kensington’s intentional violation of the OMA rendered
invalid the City Commission’s decision to terminate Hoff. The trial court awarded Hoff
damages in the amount of $500 against Spoelstra and $400 against Kensington.
In Docket No. 272898, Hoff now appeals the trial court’s grant of summary disposition in
favor of Spoelstra, Kensington, Peterson, Irby, Bradley, and the City’s on her claims of
interference with advantageous business relationship and conspiracy, violation of the ELCRA,
intentional infliction of emotional distress, and the trial court’s grant of summary disposition in
7
Quoting St Aubin v Ishpeming City Council, 197 Mich App 100, 103; 494 NW2d 803 (1992).
-7-
favor of Irby and Bradley on her claim of violation of the OMA. The City, Spoelstra, and
Kensington cross-appeal the trial court’s grant of summary disposition in Hoff’s favor on her
violation of OMA claim.
(2) Docket Nos. 275979, 276054, and 276257
In July 2006, Hoff filed her first amended, four-count complaint in Marquette Circuit
Court (Hoff v Leadbetter),8 claiming: intrusion upon seclusion and public disclosure of private
facts against Spoelstra, Dean, and Weber; and civil extortion and intentional infliction of
emotional distress against Spoelstra, Dean, Weber, and Peterson. Hoff based these claims on her
allegation that during the prior action (Hoff v Spoelstra), these defendants “leaked” emails
containing her private correspondence to the local press. Timothy Dean represented the City in
Hoff v Spoelstra, and Karl Weber represented Bradley, Irby, Kensington, and Spoelstra in that
action.
Dean and Weber moved for summary disposition, arguing that as attorneys, they had
absolute immunity, or “litigation privilege,” for the alleged acts that took place during the
previous litigation. In the alternative, they argued that Hoff did not have cognizable claims for
intrusion upon seclusion, public disclosure of private facts, civil extortion, or intentional
infliction of emotional distress. With respect to Hoff’s intrusion upon seclusion and public
disclosure of private facts claims, Dean and Weber argued that the allegedly private emails were
actually city property because they were stored on a city computer.
Spoelstra and Peterson also moved for summary disposition, arguing that, as government
officials, they were immune from Hoff’s claims. Indeed, they noted that the trial court already
ruled in Hoff v Spoelstra that they were entitled to immunity on Hoff’s prior claim of intentional
infliction of emotional distress. In the alternative, they argued that Hoff failed to state
cognizable claims for intrusion upon seclusion, public disclosure of private facts, civil extortion,
or intentional infliction of emotional distress.
In a January 11, 2007 order, the trial court adopted the reasoning of Dean and Weber and
granted their motion. Hoff now appeals that order by delayed leave granted in Docket No.
276257. However, in a January 19, 2007 order, the trial court stated that it was not persuaded by
Spoelstra and Peterson’s arguments and denied their motion for summary disposition. Therefore,
they now appeal that order in Docket Nos. 275979 and 276054.
II. Governmental Immunity
A. Standard Of Review
MCR 2.116(C)(7) provides that a party may bring a motion for summary disposition on
the ground that immunity granted by law bars a claim. To survive a (C)(7) motion on this
ground, the plaintiff must allege facts warranting the application of an exception to governmental
8
Leadbetter is not a party to this appeal; thus, there is no need to discuss the claims against him.
-8-
immunity.9 Neither party is required to file supportive material; any documentation that a party
provides to the court, however, must be admissible evidence.10 The plaintiff’s well-pleaded
factual allegations, affidavits, or other admissible documentary evidence must be accepted as
true and construed in the plaintiff’s favor, unless contradicted by documentation submitted by the
movant.11 We review de novo a trial court’s ruling on a motion for summary disposition.12 We
also review de novo the legal question regarding the applicability of governmental immunity.13
B. Applicable Legal Principles
The governmental tort liability act14 provides tort immunity for the highest executive
officials of all levels of government who injure persons or damage property while acting within
the scope of their authority.15 The law further states:
Except as otherwise provided in this section, . . . each officer and employee of a
governmental agency, . . . and each member of a board, council, [or] commission,
. . . is immune from tort liability for an injury to a person . . . caused by the
officer, employee, or member while in the course of employment or service . . . if
all of the following are met:
(a) The officer, employee, [or] member, . . . is acting or reasonably believes he or
she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) The officer’s, employee’s, [or] member’s, . . . conduct does not amount to
gross negligence that is the proximate cause of the injury or damage.[16]
9
Smith v Kowalski, 223 Mich App 610, 616; 567 NW2d 463 (1997) (1998).
10
Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999).
11
MCR 2.116(G)(5); Maiden, supra at 119-120; Smith, supra at 616.
12
Tillman v Great Lakes Truck Ctr, Inc, 277 Mich App 47, 48; 742 NW2d 622 (2007).
13
Baker v Waste Mgt of Michigan, Inc, 208 Mich App 602, 605; 528 NW2d 835 (1995).
14
MCL 691.1401 et seq.
15
MCL 691.1407(5) states as follows:
A judge, a legislator, and the elective or highest appointive executive official of
all levels of government are immune from tort liability for injuries to persons or
damages to property if he or she is acting within the scope of his or her judicial,
legislative, or executive authority.
16
MCL 691.1407(2).
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A “governmental function” is defined as “an activity that is expressly or impliedly mandated or
authorized by constitution, statute, local charter or ordinance, or other law.”17
A highest executive official is not immune from tort liability for acts not within his or her
executive authority. Whether the highest executive official of local government was acting
within his authority depends on a number of factors, including the nature of the acts, the position
held by the official, the local law defining his authority, and the structure and allocation of
powers at that particular level of government.18 The official’s motive behind his or her actions is
irrelevant.19 An intentional tort can be within the scope of an executive’s authority, but the
intentional use or misuse of governmental authority for an unauthorized purpose might exceed
that scope.20 Ultra vires activity is not activity that a government official performs in an
unauthorized manner; rather, it is activity that the government official lacks legal authority to
perform in any manner.21
The governmental tort liability act also provides “broad immunity from tort liability to
governmental agencies whenever they are engaged in the exercise or discharge of a
governmental function[.]”22
C. Analysis
Hoff does not dispute the trial court’s finding that Spoelstra, Kensington, Irby, Bradley,
and Peterson were among the highest executive officials for the City, nor that the City itself is
not entitled to claim immunity.23 Rather, she argues that their conduct was outside the scope of
their authority. We disagree.
Section 4.6 of the Marquette City Charter provides, in pertinent part, as follows:
The City Manager and Attorney shall be appointed by the Commission for
an indefinite period, shall be responsible to and serve at the pleasure of the
Commission and shall have their compensation fixed by the Commission.
17
MCL 691.1401(f).
18
American Transmissions, Inc v Attorney General, 454 Mich 135, 141; 560 NW2d 50 (1997);
Marrocco v Randlett, 431 Mich 700, 711; 433 NW2d 68 (1988); Baker v Couchman, 271 Mich
App 174, 180; 721 NW2d 251 (2006), rev’d 477 Mich 1097 (2007).
19
American Transmissions, supra at 143-144; Brown v Detroit Mayor, 271 Mich App 692, 722;
723 NW2d 464 (2006), aff’d in part, vacated in part 478 Mich 589 (2007).
20
Armstrong v Ypsilanti Twp, 248 Mich App 573, 593; 640 NW2d 321 (2001).
21
Richardson v Jackson Co, 159 Mich App 766, 771; NW2d 74 (1987), rev’d 432 Mich 377
(1989); see also Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 620; 363 NW2d
641 (1984).
22
Ross, supra at 595; see MCL 691.1407(1).
23
MCL 691.1401(d); MCL 691.1405.
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***
Except as may be otherwise required by statute or this charter, the
Commission shall establish by ordinance such departments of the city as it deems
necessary or advisable and shall prescribe therein the functions of each
department and the duties, authorities and responsibilities of the officers of each
department, but the Commission may not diminish the duties or responsibilities of
the City Manager.
The City Manager may prescribe such duties and
responsibilities of the officers of those departments responsible to him which are
not inconsistent with this charter or with any ordinance or resolution.
Further, § 4.8 of the Marquette City Charter provides, in pertinent part, as follows:
The City Manager shall be the chief administrative officer of the city government.
His functions and duties shall be:
(a) To be responsible to the Commission for the efficient administration of all
administrative departments of the city government[.]
Moreover, § 4.11 of the Marquette City Charter, which governs the City Attorney’s functions
and duties, provides, in pertinent part, as follows:
(a) The Attorney shall act as legal advisor to, and be attorney and counsel
for, the Commission and shall be responsible solely to the Commission. . . .
***
(f) He shall at all times co-operate with the City Manager and shall
provide such information and reports and perform such duties as are requested by
the City Manager so long as they are not inconsistent with the duties of his office
as herein provided.
(g) Upon the recommendation of the Attorney, or upon its own initiative,
the Commission may retain special legal counsel to handle any matter in which
the city has an interest, or to assist and counsel with the Attorney therein.
Finally, pursuant to Michigan law, each city may in its charter provide:
For the exercise of all municipal powers in the management and control of
municipal property and in the administration of the municipal government,
whether such powers be expressly enumerated or not; for any act to advance the
interests of the city, the good government and prosperity of the municipality and
its inhabitants and through its regularly constituted authority to pass all laws and
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ordinances relating to its municipal concerns subject to the constitution and
general laws of this state.[24]
MCL 117.4j(3), taken together with the city charter, broadly empowered the City
Commission to evaluate, supervise, and make decisions concerning the city attorney. Therefore,
we conclude that the complained-of conduct against Spoelstra, Kensington, Irby, and Bradley
was within the scope of their authority as commissioners, in that their conduct related to the
administration of a government department and fell within their duties to supervise the city
attorney.
The scope of Peterson’s authority as city manager, however, is more difficult to discern.
The city charter indicates that the city manager and the city attorney are essentially equal on the
governmental hierarchy, both being appointed by and answerable only to the City Commission.
Thus, Peterson did not have the same broad oversight powers as the commission members.
However, the city manager is afforded the broad authority to ensure the “efficient administration
of all administrative departments of the city government[,]” and the city attorney is expressly
directed to cooperate with the city manager and provide information and reports and perform
such duties as requested by the city manager. The latter provision logically carries with it the
implicit, reciprocal provision that the city charter affords the city manager the authority to
request from the city attorney information, reports, and the performance of certain duties.
Therefore, we conclude that the complained-of conduct against Peterson was within the scope of
his authority as city manager, in that his conduct related to the efficient administration of a
government department and fell within his duties to work with the city attorney. Additionally,
we note that, as city manager, Peterson had a right to comment on issues affecting city
government, including a lawsuit filed by a governmental official against the government body.
Moreover, we conclude that Spoelstra and Peterson were authorized to discuss issues of
public concern with members of the community, including by discussing and disseminating
public documents. Here, those documents were Hoff’s emails, in which she maintains she was
entitled a reasonable expectation of privacy. However, the City’s information systems policy
stated that such emails were considered city property and could be subject to public disclosure
under the Freedom of Information Act.25 Most notably, the policy stated, “[T]he user should not
expect any degree of privacy regarding e-mail messages. . . . Since your personal messages can
be accessed by City management without your notice, you should not use e-mail to transmit any
messages that you would not want read by a third party.” Therefore, we conclude that there was
no reasonable basis for Hoff to have any expectation of privacy in e-mails contained in the City’s
computer system.
The City is immune because tort claims are not covered by a specific exception to the
governmental tort liability act.26
24
MCL 117.4j(3) (emphasis added).
25
MCL 15.231 et seq.
26
Harrison v Director of Dep’t of Corrections, 194 Mich App 446, 450; 487 NW2d 799 (1992).
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Accordingly, we conclude that Spoelstra, Kensington, Irby, Bradley, Peterson, and the
City were all immune from Hoff’s tort claims. Therefore, in Docket No. 272898, we affirm the
trial court’s August 2006 order granting summary disposition in favor of the City, Spoelstra,
Kensington, Irby, Bradley, and Peterson, based on our conclusion that they were entitled to
governmental immunity on Hoff’s claims of interference with advantageous business
relationship and conspiracy, and intentional infliction of emotional distress. And in Docket Nos.
275979 and 276054, we reverse the trial court’s January 19, 2007 order denying Spoelstra and
Peterson summary disposition based on our conclusion that they were entitled to governmental
immunity on Hoff’s claims of intrusion upon seclusion, public disclosure of private facts, civil
extortion, and intentional infliction of emotional distress.
III. ELCRA
A. Standard Of Review
Under MCR 2.116(C)(10), a party may move for dismissal of a claim on the ground that
there is no genuine issue with respect to any material fact and that the moving party is entitled to
judgment as a matter of law.27 The moving party must specifically identify the undisputed
factual issues and support its position with documentary evidence.28 The trial court must
consider all the documentary evidence in the light most favorable to the nonmoving party.29 We
review de novo the trial court’s ruling on a motion for summary disposition.30
B. Premature Grant Of Summary Disposition
Generally, “summary disposition is premature if it is granted before discovery on a
disputed issue is complete.”31 However, the mere fact that the discovery period remains open
does not automatically mean that the trial court’s decision to grant summary disposition was
untimely or otherwise inappropriate. “The question is whether further discovery stands a fair
chance of uncovering factual support for the opposing party’s position.”32 In addition, a party
opposing summary disposition cannot simply state that summary disposition is premature
without identifying a disputed issue and supporting that issue with independent evidence.33 The
27
MCR 2.116(C)(10).
28
MCR 2.116(G)(3)(b); Maiden, supra at 120.
29
MCR 2.116(G)(4); Maiden, supra at 120.
30
Tillman v Great Lakes Truck Ctr, Inc, 277 Mich App 47, 48; 742 NW2d 622 (2007).
31
Dep’t of Social Services v Aetna Casualty & Surety Co, 177 Mich App 440, 446; 443 NW2d
420 (1989).
32
Id.
33
Pauley v Hall, 124 Mich App 255, 263; 335 NW2d 197 (1983).
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Michigan Supreme Court has held that failure to comply with MCR 2.116(H)34 precludes a claim
that summary disposition was premature.35 Here, Hoff did not comply with MCR 2.116(H);
thus, she cannot complain that discovery was prematurely ended.36 Moreover, as concluded
below, further discovery did not uncover factual support for her position.
C. Alleged Discrimination
The ELCRA prohibits an employer from retaliating against an employee because the
employee “has opposed a violation of this act, or because the [employee] has made a charge,
filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing
under this act.”37
A prima facie case of retaliation can be established if a plaintiff proves:
(1) that he was engaged in a protected activity; (2) that this was known by the
defendant; (3) that the defendant took an employment action adverse to the
plaintiff; and (4) that there was a causal connection between the protected activity
and the adverse employment action.[38]
This Court has indicated that a plaintiff’s lodging of a complaint or “charge” with higher
management about alleged discriminatory conduct constitutes protected activity.39 “To establish
causation, the plaintiff must show that his participation in activity protected by the [ELCRA] was
34
MCR 2.116(H) provides as follows:
(1) A party may show by affidavit that the facts necessary to support the
party’s position cannot be presented because the facts are known only to persons
whose affidavits the party cannot procure. The affidavit must
(a) name these persons and state why their testimony cannot be procured,
and
(b) state the nature of the probable testimony of these persons and the
reason for the party’s belief that these persons would testify to those facts.
(2) When this kind of affidavit is filed, the court may enter an appropriate
order, including an order
(a) denying the motion, or
(b) allowing additional time to permit the affidavit to be supported by
further affidavits, or by depositions, answers to interrogatories, or other discovery.
35
Coblentz v City of Novi, 475 Mich 558, 570-571; 719 NW2d 73 (2006).
36
Id.
37
MCL 37.2701(a).
38
Pena v Ingham Co Rd Comm, 255 Mich App 299, 310-311; 660 NW2d 351 (2003).
39
Rymal v Baergen, 262 Mich App 274, 300-301; 686 NW2d 241 (2004), citing MCL
37.2701(a).
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a ‘significant factor’ in the employer’s adverse employment action, not just that there was a
causal link between the two.”40
Hoff’s only known complaint regarding the alleged discrimination against her was a one
sentence comment contained in her counsel’s October 8, 2004 letter to the commissioners, noting
“sexism inherent in that position.” Arguably, this cryptic comment could be construed as the
lodging of a complaint or “charge” with higher management about alleged discriminatory
conduct, thereby constituting protected activity.41 “Regardless of the vagueness of the charge or
the lack of formal invocation of the protection of the act, if an employer’s decision to terminate
or otherwise adversely effect an employee is a result of that employee raising the spectre of a
discrimination complaint, retaliation prohibited by the act occurs.”42
However, Hoff has failed to show that her alleged complaint of sex discrimination was a
factor, let alone a “significant factor,” in her termination. Hoff’s allegations of adverse treatment
by not only Peterson, but also Irby and Bradley, long pre-date her October 2004 letter, and Hoff
does not allege that Irby and Bradley’s treatment of her had anything to do with her being a
female. Moreover, Hoff’s own allegations suggest that Spoelstra and Kensington campaigned
for her termination because of their distrust of her competence as an attorney. We agree with the
trial court that “nothing whatsoever” supports Hoff’s cause of action under the ELCRA.
Therefore, we affirm the trial court’s dismissal of Hoff’s claim of ELCRA retaliation
against Spoelstra, Kensington, Irby, Bradley, and the City because their conduct did not satisfy
the necessary elements of this claim.
IV. The Open Meetings Act
A. Standard Of Review
We review de novo the trial court’s ruling on a motion for summary disposition.43 We
also review de novo the proper interpretation and application of a statute.44
B. Hoff’s Allegations
With respect to her claimed violation of the OMA in Hoff v Spoelstra, Hoff alleged in her
complaint that in the months and days leading up to her termination, Spoelstra, Kensington, Irby,
Bradley, and Peterson plotted against her, “such that the goals and intent of Michigan’s Open
40
Barrett v Kirtland Community College, 245 Mich App 306, 315; 628 NW2d 63 (2001)
(internal citation omitted).
41
Rymal, supra at 300-301.
42
McLemore v Detroit Receiving Hosp & Univ Medical Ctr, 196 Mich App 391, 396; 493 NW2d
441 (1992).
43
Tillman v Great Lakes Truck Ctr, Inc, 277 Mich App 47, 48; 742 NW2d 622 (2007).
44
Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 631; 563 NW2d 683 (1997).
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Meetings Act were defeated, and the public’s right to know how and why decisions are made in
the City of Marquette was subverted.” According to Hoff, “[t]he actions of the Defendants
amounted to deliberating, in a round-robin meeting, toward a decision by a quorum of the
Commissioner’s members outside of public scrutiny, making the commission’s action illegal,
reprehensible and void.”
C. Applicable Legal Principles
“The purpose of the OMA is to promote openness and accountability in government; it is
therefore to be interpreted broadly to accomplish this goal.”45 Accordingly, the OMA provides
that whenever a quorum of a public body deliberates or renders a decision on public policy, such
deliberations or decisions must take place in an open meeting, unless an exception applies.46 In
other words, in deciding whether there was an OMA violation, the relevant inquiries are: (1)
whether the board acted as a public body, (2) whether there was a meeting, (3) whether the
members deliberated on or rendered a decision, and if so, (4) whether any exceptions apply.47
To constitute a “meeting” of a “public body,” as contemplated by the OMA, three elements must
be present: (1) a quorum, (2) deliberation toward or rendering of a decision, (3) a matter of
public policy at issue.48 Because the OMA does not define the term “deliberation,” this Court
has turned to dictionary definitions and stated that “deliberation” includes “discussing,” which,
in turn, is defined as “the act of exchanging views on something[.]”49
A public official who acts with the specific intent to violate the OMA shall be personally
liable for a violation of the act.50 And this Court has repeatedly held that an OMA violation can
be found when subquorum groups are intentionally created to deliberate on public policy and
avoid the OMA, thereby constituting constructive quorums.51
For example, in Booth Newspapers, Inc v Wyoming City Council, two separate non
public meetings were held between various city council members, and although neither meeting
alone had enough members in attendance to constitute a quorum, this Court held that the two-day
total was sufficient to constitute a constructive quorum and a violation of the OMA.52 This
Court first acknowledged that “[a]dvisory committees of less than a quorum which do not
45
Univ of Mich Board of Regents, supra at 580.
46
MCL 15.263(3).
47
Schmiedicke v Clare School Bd, 228 Mich App 259, 261; 577 NW2d 706 (1998); Univ of Mich
Board of Regents, supra at 581.
48
Ryant v Cleveland Twp, 239 Mich App 430, 434; 608 NW2d 101 (2000); Schmiedicke, supra
at 262; see MCL 15.262(b).
49
Ryant, supra at 434, citing Black’s Law Dictionary (7th ed).
50
MCL 15.273(1); see People v Whitney, 228 Mich App 230, 254; 578 NW2d 329 (1998).
51
Univ of Mich Board of Regents, supra at 581.
52
Booth Newspapers, Inc v Wyoming City Council, 168 Mich App 459, 465, 472-473; 425
NW2d 695 (1988).
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collectively deliberate toward resolution of public business are not within the purview of the
act.”53 However, this Court concluded that the OMA’s exception for “social or chance
gathering[s] . . . not designed to avoid this act,”54 evidenced an equal legislative intent that the
OMA apply to any meetings intentionally designed to avoid the act.55 According to this Court,
“To accept the city council’s suggestion that a public body can avoid the OMA by deliberately
dividing itself into groups of less than a quorum and still deliberate on public policy would
circumvent the legislative principles as well as the overall objective of the OMA to promote
openness and accountability in government.”56
Similarly, in Booth Newspapers, Inc v Univ of Mich Board of Regents, the defendant
board established subquorum committees that engaged in telephone calls and small group
meetings.57 This Court found it significant that the acknowledged purpose of these subquorum
committees was to engage in the same intercommunications that could only have been achieved
in a full meeting of the board.58 According to this Court, “The subquorum groups were utilized
or designed to avoid the OMA, and therefore, they constituted a constructive quorum[.]”59
Therefore, this Court held that, because the board “deliberately divided itself into subquorum
groups to deliberate on public policy, in direct circumvention of the OMA’s objective of
promoting openness and accountability in government,” the OMA applied.60
But conversely, in St Aubin v Ishpeming City Council, before a council meeting during
which the plaintiff was terminated, the mayor held one-on-one discussions with each of the
council members regarding whether the plaintiff should be retained as city manager.61 As a
result of these discussions, the mayor felt that there was a consensus among the council members
to terminate the plaintiff. The plaintiff argued that this one-on-one canvassing contravened the
OMA. However, this Court distinguished St Aubin from Wyoming City Council and Univ of
Mich Board of Regents, on the ground that in those cases the subquorum meetings were designed
to avoid the OMA, whereas the facts in St Aubin evidenced no such intent.62
53
Id. at 472, citing OAG, 1977-1978, No 5183 (Pt II, No 25), p 40 (March 8, 1977).
54
MCL 15.263(10).
55
Wyoming City Council, supra at 472.
56
Id.
57
Univ of Mich Board of Regents, supra at 577, 581.
58
Id. at 577-578, 581.
59
Id. at 581, citing Wyoming City Council, supra.
60
Id.
61
St Aubin, supra at 102.
62
Id. at 103.
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D. Spoelstra and Kensington
We first conclude that the trial court properly found that the City Commission is a public
body,63 a quorum of which is four of the seven members, and that a decision to terminate the
City Attorney is a matter of public policy.64
We further conclude that the trial court also correctly found that Spoelstra and
Kensington engaged in subquorum discussions with three other commissioners with the specific
intent to circumvent the OMA, and that the purpose of the meetings was to deliberate on the
public matter of Hoff’s continuing employment.65 Deposition testimony evidenced that during
the day before the evening commission meeting on January 31, 2005, Spoelstra and Kensington
had three separate meetings with each of the three other commissioners to discuss their concerns
about Hoff. Kensington testified that she knew that the OMA prohibited the commissioners
from meeting in groups larger than three. And Spoelstra confirmed that she was careful to make
sure that she and Kensington went to visit the other three commissioners one at a time because
having four commissioners together discussing city business was a violation of the OMA. As the
trial court here concluded, “the several meetings constituted far more than ‘. . . an informal
canvas by one member of a public body to find out where the votes would be on a particular
issue, . . . [.]’”66 Further, the meetings were clearly prearranged meetings to discuss Hoff, as
opposed to merely a social or chance gathering.67
Spoelstra and Kensington argue that the private meetings did not violate the OMA
because the City Commission made the actual decision to terminate Hoff at the public meeting
by a 4-3 vote. However, it is not mandatory that an actual decision be made at the allegedly
violative meeting. Deliberation, or discussion, on a matter of public policy, without the actual
rendering of a decision, also satisfies the OMA’s definition of “meeting.”68 Indeed, the fact that
no public deliberations took place on the day the decision to terminate Hoff was rendered
evidences that the deliberations had been already taken place privately. As this Court has
recognized, “The primary purpose of the OMA is to ensure that public entities conduct all their
decision-making activities in open meetings and not simply hold open meetings where they
rubber-stamp decisions that were previously made behind closed doors.”69
63
See Whitney, supra at 241-242, citing MCL 15.262(a) (finding that a city council is a public
body).
64
See id. at 242-243 (finding that city council deliberations regarding the hiring or retention of a
city manager was among the most important exercises of governmental authority).
65
See MCL 15.262(b); Ryant, supra at 434.
66
Quoting St Aubin, supra at 103.
67
See MCL 15.263(10).
68
MCL 15.262(b); Ryant, supra at 434.
69
Schmiedicke, supra at 264.
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Additionally, we find it irrelevant that, in hindsight, the three other commissioners did
not vote to terminate Hoff. The fact that Spoelstra and Kensington failed at their attempts to
influence the other three commissioners does not negate the fact that they arranged the meetings
with the intent to circumvent the OMA.
Accordingly, we conclude that the trial court did not err in holding that Spoelstra and
Kensington intentionally violated the OMA. And in so holding, we affirm the trial court’s
determination that this violation of the OMA thereby invalidated the City Commission’s
termination of Hoff. However, we find it appropriate to note that MCL 15.270(5) provides as
follows:
In any case where an action has been initiated to invalidate a decision of a public
body on the ground that it was not taken in conformity with the requirements of
this act, the public body may, without being deemed to make any admission
contrary to its interest, reenact the disputed decision in conformity with this act.
A decision reenacted in this manner shall be effective from the date of
reenactment and shall not be declared invalid by reason of a deficiency in the
procedure used for its initial enactment.
E. Irby and Bradley
We further conclude, however, that Irby and Bradley’s conduct did not violate the OMA.
Both of them publicly made known their dissatisfaction with Hoff. But their mere awareness of
Spoelstra and Kensington’s meetings with the other commissioners simply did not amount to
their participation in a subquorum meeting specifically intended to violate the act. Accordingly,
we affirm the trial court’s dismissal of Hoff’s OMA violations claims against Irby and Bradley.
V. The Judicial/Litigation Privilege
A. Standard Of Review
We review de novo the trial court’s ruling on a motion for summary disposition.70 “We
also review de novo as a question of law the applicability of a privilege.”71
B. Legal Principles
“Statements made by judges, attorneys, and witnesses during the course of judicial
proceedings are absolutely privileged if they are relevant, material, or pertinent to the issue being
tried.”72 The purpose of absolute immunity is to promote the public policy of securing to
attorneys as officers of the court the utmost freedom in their efforts to secure justice for their
70
Tillman v Great Lakes Truck Ctr, Inc, 277 Mich App 47, 48; 742 NW2d 622 (2007).
71
Oesterle v Wallace, 272 Mich App 260, 263; 725 NW2d 470 (2006).
72
Oesterle, supra at 264; Couch v Schulz, 193 Mich App 292, 295; 483 NW2d 684 (1992).
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clients.73 Alleged defamatory statements made in the contest of settlement negotiations is
covered by the privilege, as long as they were made after the commencement of litigation.74 This
litigation privilege extends to every step in the proceedings and covers anything that may be said
in relation to the matter at issue, including pleadings and affidavits.75
C. Analysis
Dean and Weber are attorneys, and the absolute litigation privilege applies to them.76
They owed no duty to party opponents they did not represent. Accordingly, we affirm the trial
court’s dismissal of Hoff’s claims against Dean and Weber because they were protected by the
litigation privilege.
VI. Conclusion
In Docket No. 272898, we affirm the trial court’s August 2006 order granting summary
disposition in favor of the City, Spoelstra, Kensington, Irby, Bradley, and Peterson, based on our
conclusion that they were entitled to governmental immunity on Hoff’s claims of interference
with advantageous business relationship and conspiracy, and intentional infliction of emotional
distress. We also affirm the trial court’s grant of summary disposition in favor of the City,
Spoelstra, Kensington, Irby, Bradley, and Peterson, based on our conclusion that Hoff failed to
satisfy the necessary elements of a violation of the ELCRA. We further affirm the trial court’s
grant of summary disposition in favor of Irby and Bradley based on our conclusion that they did
not violate the OMA. And we affirm the trial court’s grant of summary disposition in Hoff’s
favor based on our conclusion that Spoelstra and Kensington did intentionally violate the OMA.
In Docket No. 276257, we affirm the trial court’s January 11, 2007 order granting Dean
and Weber summary disposition based on our conclusion that they were entitled to absolute
litigation privilege on Hoff’s claims of intrusion upon seclusion, public disclosure of private
facts, civil extortion, and intentional infliction of emotional distress.
And in Docket Nos. 275979 and 276054, we reverse the trial court’s January 19, 2007
order denying Spoelstra and Peterson summary disposition based on our conclusion that they
were entitled to governmental immunity on Hoff’s claims of intrusion upon seclusion, public
disclosure of private facts, civil extortion, and intentional infliction of emotional distress.
We affirm in part and reverse in part.
/s/ William C. Whitbeck
/s/ Kathleen Jansen
/s/ Alton T. Davis
73
Oesterle, supra at 265.
74
Id. at 268.
75
Couch, supra at 295.
76
Oesterle, supra at 264.
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