KATHERINE M ERNSTING V AVE MARIA COLLEGE
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STATE OF MICHIGAN
COURT OF APPEALS
KATHERINE M. ERNSTING,
FOR PUBLICATION
March 6, 2007
9:00 a.m.
Plaintiff-Appellant,
v
No. 265187
Washtenaw Circuit Court
LC No. 04-000989-CD
AVE MARIA COLLEGE,
Defendant-Appellee.
Official Reported Version
Before: Wilder, P.J., and Zahra and Davis, JJ.
WILDER, P.J.
In this action brought under the Michigan Whistleblowers' Protection Act (WPA), MCL
15.361 et seq., plaintiff appeals as of right the order granting defendant's motion for summary
disposition under MCR 2.116(C)(8) and (10). We reverse.
I
From September 10, 2001, to September 2003, plaintiff was employed by defendant as its
director of public relations until her placement as special assistant to the president of Ave Maria
College. She served in this position until her employment was terminated in July 2004. In a
single-count complaint alleging wrongful termination, plaintiff alleged that defendant violated
the WPA by terminating her employment in response to her reports and participation in a United
States Department of Education (DOE) investigation regarding defendant's administration of title
IV student financial assistance programs during the 2000 to 2001, 2001 to 2002, and 2002 to
2003 award years.
Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and
(10). Following a hearing, the trial court granted defendant's motion. Rejecting plaintiff 's
reliance on Jacobson v Parda Fed Credit Union, 457 Mich 318; 577 NW2d 881 (1998), and
Dolan v Continental Airlines/Continental Express, 454 Mich 373; 563 NW2d 23 (1997), the trial
court determined that plaintiff 's claim did not involve a report to a public body, as required by
the WPA, concluding instead that the DOE is not a "law enforcement agency," and therefore not
a "public body" under the terms of the act:
This Court is not persuaded that the Department of Education and its
Office of Inspector General is [a] "law enforcement agency." [Jacobson and
Dolan] involve the Federal Bureau of Investigation and the Drug Enforcement
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Agency, respectively. These two federal agencies possess not only the authority
to investigate claims, but also the authority to make arrests. Plaintiff does not
provide, and this Court has found, no authority given to the Department of
Education to arrest. While it may . . . have the authority to investigate criminal
action, it does not possess the authority to effectuate enforcement of the laws and
therefore it is not a "law enforcement agency." This conclusion is supported by
the common meaning of the word "enforce": 1. to give force to; urge 2. to bring
about or impose by force 3. to compel observance of.[1] [Emphasis in original.]
Accordingly, the trial court granted defendant's motion for summary disposition.2 Plaintiff 's
motion for reconsideration was denied. Plaintiff now appeals.
II
This Court reviews de novo questions of law involving statutory interpretation and
statutory construction. Michigan Muni Liability & Property Pool v Muskegon Co Bd of Co Rd
Comm'rs, 235 Mich App 183, 189; 597 NW2d 187 (1999); Haworth, Inc v Wickes Mfg Co, 210
Mich App 222, 227; 532 NW2d 903 (1995). This Court also reviews de novo the trial court's
grant of summary disposition pursuant to MCR 2.116(C)(8) and (10). Dressel v Ameribank, 468
Mich 557, 561; 664 NW2d 151 (2003); Maiden v Rozwood, 461 Mich 109, 118 597 NW2d 817
(1999).
A motion under MCR 2.116(C)(8) tests the legal sufficiency of a complaint; a court
considers only the pleadings when deciding a motion brought under this section. Maiden, supra
at 119. For purposes of reviewing a motion for summary disposition under MCR 2.116(C)(8),
all well-pleaded factual allegations are accepted as true and construed in a light most favorable to
the nonmovant. Id. "A motion under MCR 2.116(C)(8) may be granted only where the claims
alleged are 'so clearly unenforceable as a matter of law that no factual development could
possible justify recovery.'" Id., quoting Wade v Dep't of Corrections, 439 Mich 158, 163; 483
NW2d 26 (1992).
When deciding a motion for summary disposition under MCR 2.116(C)(10), a court must
consider the pleadings, affidavits, depositions, admissions, and other documentary evidence
submitted in the light most favorable to the nonmoving party. Corley v Detroit Bd of Ed, 470
Mich 274, 278; 681 NW2d 342 (2004). Summary disposition is proper under MCR
2.116(C)(10) if the documentary evidence shows that there is no genuine issue regarding any
material fact and the moving party is entitled to judgment as a matter of law. West v Gen Motors
Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A genuine issue of material fact exists when
1
The trial court cited, and apparently quoted, Webster's New World Dictionary, Second College
Edition (1984).
2
Not relevant to this appeal is the trial court's denial of plaintiff 's motion to amend her
complaint.
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the record, giving the benefit of any reasonable doubt to the opposing party, leaves open an issue
on which reasonable minds could differ. Id.
III
Plaintiff argues that the trial court erred in finding that plaintiff was not engaged in an
activity protected under the WPA because the DOE is not a "public body" pursuant to MCL
15.361(d)(v). We agree.
A
We first consider whether a federal agency, as opposed to a state or local agency, may be
considered a public body under the WPA. Plaintiff 's whistleblower claim is brought under MCL
15.362, which states:
An employer shall not discharge, threaten, or otherwise discriminate
against an employee regarding the employee's compensation, terms, conditions,
location, or privileges of employment because the employee, or a person acting on
behalf of the employee, reports or is about to report, verbally or in writing, a
violation or a suspected violation of a law or regulation or rule promulgated
pursuant to law of this state, a political subdivision of this state, or the United
States to a public body, unless the employee knows that the report is false, or
because an employee is requested by a public body to participate in an
investigation, hearing, or inquiry held by that public body, or a court action.
[Emphasis added.]
Activity protected under the WPA consists of (1) reporting to a public body a violation of
a law, regulation, or rule, (2) being about to report such a violation to a public body, or (3) being
asked by a public body to participate in an investigation. Roulston v Tendercare (Michigan), Inc,
239 Mich App 270, 279; 608 NW2d 525 (2000), citing MCL 15.362. To establish a prima facie
case under the WPA, plaintiff must show that (1) she was engaged in a protected activity as set
forth in the act, (2) defendant discharged her, and (3) a causal connection existed between the
protected activity and the discharge. Roulston, supra at 279.
MCL 15.361(d) defines a "public body" under the WPA as follows:
"Public body" means all of the following:
(i) A state officer, employee, agency, department, division, bureau, board,
commission, council, authority, or other body in the executive branch of state
government.
(ii) An agency, board, commission, council, member, or employee of the
legislative branch of state government.
(iii) A county, city, township, village, intercounty, intercity, or regional
governing body, a council, school district, special district, or municipal
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corporation, or a board, department, commission, council, agency, or any
member or employee thereof.
(iv) Any other body which is created by state or local authority or which
is primarily funded by or through state or local authority, or any member or
employee of that body.
(v) A law enforcement agency or any member or employee of a law
enforcement agency.
(vi) The judiciary and any member or employee of the judiciary.
[Emphasis added.]
When construing the provisions of a statute, the primary task of this Court is to discern
and give effect to the intent of the Legislature:
This task begins by examining the language of the statute itself. The
words of a statute provide "the most reliable evidence of its intent . . . ." If the
language of the statute is unambiguous, the Legislature must have intended the
meaning clearly expressed, and the statute must be enforced as written. No
further judicial construction is required or permitted. Only where the statutory
language is ambiguous may a court properly go beyond the words of the statute to
ascertain legislative intent. [Sun Valley Foods Co v Ward, 460 Mich 230, 236;
596 NW2d 119 (1999) (citations omitted).]
The WPA does not define "law enforcement agency." In reliance on the rule of noscitur a sociis,
which stands for the principle that a word or phrase is given meaning by its context or setting,
Herald Co v Bay City, 463 Mich 111, 130 n 10; 614 NW2d 873 (2000), defendant argues that the
Legislature implicitly intended to exclude federal law enforcement agencies from the definition
of "public body" because subsections d(i) through (iv) expressly limit the definition of "public
body" to include only state and local governmental entities. We cannot agree. "Unless defined
in the statute, every word or phrase of a statute should be accorded its plain and ordinary
meaning, and a dictionary may be consulted for this purpose." Polkton Charter Twp v
Pellegrom, 265 Mich App 88, 102; 693 NW2d 170 (2005). Black's Law Dictionary (8th ed)
defines "law enforcement" as "[t]he detection and punishment of violations of the law. This term
is not limited to the enforcement of criminal laws." Clearly, the function of detecting and
punishing violations of the law is not performed solely by state and local agencies, which is
reflected in the express language of MCL 15.361(d)(v). Nothing in MCL 15.361(d)(v)
demonstrates the Legislature's intent that the term "law enforcement agency" is limited to state or
local enforcement agencies. "'[A] court may read nothing into an unambiguous statute that is not
within the manifest intent of the Legislature as derived from the words of the statute itself.'" Hill
v Sacka, 256 Mich App 443, 447-448; 666 NW2d 282 (2003) (citation omitted).
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Had the Legislature intended to limit the term "law enforcement agency" to mean only
state and local law enforcement agencies, it could have expressly so stated, as it did in
subsections d(i) through (iv), and as it has done in other statutes.3 "The omission of a provision
in one part of a statute that is included in another part of a statute should be construed as
intentional, and provisions not included by the Legislature should not be included by the courts."
Polkton, supra at 103 (citations omitted).
Our interpretation of MCL 15.361(d)(v) is further supported by the language of MCL
15.362, which unambiguously provides for the reporting of violations of state and local laws as
well as a "violation or a suspected violation of a law or regulation or rule promulgated pursuant
to law of . . . the United States . . . ." "Statutes in pari materia are statutes sharing a common
purpose or relating to the same subject. They are construed together as one law, regardless of
whether they contain any reference to one another." Omne Financial, Inc v Shacks, Inc, 460
Mich 305, 312; 596 NW2d 591 (1999), citing State Treasurer v Schuster, 456 Mich 408, 417;
572 NW2d 628 (1998).
Because MCL 15.361(d)(v) and MCL 15.362 relate to the same subject, the WPA, and
are thus read in pari materia, interpreting 15.361(d)(v) in the manner advanced by defendant
would render the language pertaining to the reporting of violations of federal laws in MCL
15.362 nugatory.4 Bageris v Brandon Twp, 264 Mich App 156, 162; 691 NW2d 459 (2004)
(stating that constructions of statutes that would render any part of a statute surplusage or
nugatory are to be avoided).
3
See MCL 3.731(b) ("'Law enforcement agency' means a police or sheriff 's department that has
the authority to enforce the general criminal laws of this state or a similar governmental
organization of a physically adjacent state."); MCL 28.241a(i) (defining "law enforcement
agency" as "the police department of a city, township, or village, the sheriff 's department of a
county, the department [of state police], or any other governmental law enforcement agency of
this state"); MCL 28.258(1)(d) ("'Law enforcement agency' means the department [of state
police]; a police agency of a city, village, or township; a sheriff 's department; or any other
governmental law enforcement agency in this state."); MCL 257.675d(2)(a) ("'Law enforcement
agency' means a police agency of a city, village, or township; a sheriff 's department; the
department of state police; or any other governmental law enforcement agency in this state.");
MCL 287.705(1) ("'Law enforcement agency' means the department of state police, the
department of natural resources, or a law enforcement agency of a county, township, city, or
village that is responsible for the prevention and detection of crime and enforcement of the
criminal laws of this state."); and MCL 722.822(d) ("'Law enforcement agency' means a police
department of a city, village, or township, a sheriff 's department, the department of state police,
or any other governmental law enforcement agency in this state.").
4
For this same reason, we reject defendant's reliance on Ciccarelli v Plastic Surgery Affiliates,
PC, unpublished opinion per curiam of the Court of Appeals, issued March 27, 2001 (Docket
No. 219780), which applied the rule of noscitur a sociis to interpret MCL 15.361(d) to expressly
limit the definition "public body" to bodies of state government or its political subdivisions.
Moreover, Ciccarelli is an unpublished opinion and, therefore, not binding on this Court. MCR
7.215(C)(1).
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Moreover, because MCL 15.361(d)(v) is unambiguous, we reject as unpersuasive
defendant's argument that the legislative history and House Legislative Analysis, HB 5088 and
5089, February 5, 1981, reflect a legislative intent to limit the definition of "public body" to state
and local agencies. It is well settled in Michigan that legislative analysis is a "generally
unpersuasive tool of statutory construction," Frank W Lynch & Co v Flex Technologies, Inc, 463
Mich 578, 587; 624 NW2d 180 (2001), particularly given that the analyses themselves carry a
warning "'that they do not constitute an official statement of legislative intent,'" Morales v Parole
Bd, 260 Mich App 29, 43; 676 NW2d 221 (2003), quoting Lynch, supra at 588 n 7. In
conclusion we hold that under the plain language of MCL 15.361(d), a federal agency may
qualify as a law enforcement agency and, thus, as a public body under the WPA.
B
We next address whether the DOE, as a federal agency, qualifies as a law enforcement
agency under the WPA. We initially note that the trial court erred by determining whether an
agency is a law enforcement agency exclusively on the basis of whether the agency has arrest
powers to enforce the law. An "arrest" is "[a] seizure or forcible restraint" or "[t]he taking or
keeping of a person in custody by legal authority . . . ." Black's Law Dictionary (8th ed). In
focusing exclusively on arrest powers, the trial court overlooked the settled principle that the
Legislature designed the WPA to protect the public from unlawful conduct by corporations and
governmental bodies. Anzaldua v Band, 457 Mich 530, 533; 578 NW2d 306 (1998), citing
Dolan, supra at 378 n 9. It is axiomatic that a corporation or governmental body is not subject to
the threat of arrest, and, as such, the power to arrest cannot be the sole factor in determining
whether an agency is a law enforcement agency. Instead, we consider, as discussed earlier, the
specific powers granted to the DOE to detect and punish violations of the law.
The Department of Education is a department within the executive branch, 5 USC 101;
20 USC 3411, ensuring, among other things, that education issues receive proper treatment at the
federal level, 20 USC 3402. Congress enacted the Inspector General Act of 1978, 5 USC
Appendix, 1 et seq., in order "'to more effectively combat fraud, abuse, waste and
mismanagement in the programs and operations of . . . departments and agencies.'" United States
Nuclear Regulatory Comm v Fed Labor Relations Auth, 25 F3d 229, 233 (CA 4, 1994) (citation
omitted). "To that end, Congress established in each specified governmental agency [including
the Department of Education] an Office of Inspector General, as an 'independent and objective
unit,' charging each unit with the responsibility of conducting and supervising audits and civil
and criminal investigations relating to that agency's operations." Id., citing 5 USC Appendix,
4(a)(1).
With regard to investigative powers, the DOE Inspector General is authorized to have
access to all pertinent documents and persons, and is given broad subpoena powers pursuant to 5
USC Appendix, 6. In addition, under 31 USC 3803, the DOE Inspector General is also
authorized to investigate allegations that an entity filed a false, fictitious, or fraudulent claim
with the DOE. "[A]fter reasonable notice and opportunity for a hearing" the DOE is authorized
to "suspend or terminate the eligibility status for any or all programs under this subchapter . . . of
any otherwise eligible institution" or "impose a civil penalty upon such institution of not to
exceed $25,000 for each violation or misrepresentation." 20 USC 1094(c)(3). Moreover,
effective December 8, 2003, § 6(e) was added to the Inspector General Act of 1978 by § 812(a)
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of the Homeland Security Act, PL 107-296, which authorized the DOE Inspector General and
assistants to carry firearms, make arrests without warrants (on the reasonable belief that a felony
has been committed), seek and execute warrants, search premises on probable cause, and seize
evidence, with authorization from the United States Attorney General.5 5 USC Appendix, 6(e).
Given these statutory powers, we conclude that the DOE, as a federal institution, falls
within the definition of "law enforcement agency" in the WPA.
We respectfully disagree with the dissent's view that the term "law enforcement agency"
as more narrowly construed by this Court in In re Faketty, 121 Mich App 266, 271; 328 NW2d
551 (1982), is applicable here. In Faketty, this Court interpreted the meaning of the term "law
enforcement agency" as it was used in the juvenile court rule that permitted the juvenile court to
order the expunction of delinquency and neglect records of juveniles. JCR 1969, 13. This Court
held that the term "law enforcement agency" as used within that rule referred to agencies
charged with the prevention and detection of crime and the enforcement of the general criminal
laws of the state, and concluded that because the Department of Corrections had authority
relating "solely to the administration of penal institutions, probation, pardons, paroles and
commutations and other aspects of the department's corrections functions," it did not have the
responsibility to enforce the general criminal laws of the state. Faketty, supra at 271.
We first note that Faketty is not binding on this Court. MCR 7.215(J)(1). Moreover,
Faketty is readily distinguished. For example, the WPA, by its plain language, is intended to
protect an employee who "reports or is about to report . . . a violation or a suspected violation of
a law or regulation or rule . . . ." MCL 15.362 (emphasis added). As noted in Clonlara, Inc v
State Bd of Ed, 442 Mich 230, 239; 501 NW2d 88 (1993), the version of MCL 24.207 of the
Administrative Procedures Act at issue in that case provided: "'Rule' means an agency
regulation, statement, standard, policy, ruling, or instruction of general applicability that
implements or applies law enforced or administered by the agency, or that prescribes the
organization, procedure, or practice of the agency, including the amendment, suspension, or
rescission thereof . . . ." (Emphasis added). Moreover, administrative "[a]gencies have the
authority to interpret the statutes they are bound to administer and enforce." Clonlara, Inc,
supra at 240. Whereas there was a narrow context in which this Court in Faketty considered
whether the Department of Corrections was a law enforcement agency under JCR 1969, 13,
here, because remedial statutes like the WPA are liberally construed in favor of the persons
5
The DOE Inspector General has concurrent responsibility with the Department of Justice (DOJ)
and the Federal Bureau of Investigation for the prevention and detection of waste and abuse
within the DOE. However, before the enactment of § 812 of the Homeland Security Act, the
DOE Inspector General relied on memoranda of understanding with the DOJ that provided
temporary grants of law enforcement powers through deputations. As the volume of
investigations increased, deputations were authorized on an office-wide basis. The memoranda
of understanding were replaced, pursuant to § 6(e)(4) of the Inspector General Act, with United
States Attorney General Guidelines. 5 USC Appendix, 6(e)(4). See Attorney General's
Guidelines for Offices of Inspector General with Statutory Law Enforcement Authority
(December 8, 2003); see PL 107-296, 116 Stat 2135 (codified as amended in scattered sections
of the USC).
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intended to be benefited, Brown v Mayor of Detroit, 271 Mich App 692, 706; 723 NW2d 464
(2006), we conclude that the DOE, with its power to conduct civil and criminal investigations in
order to enforce the laws under its purview, constitutes a law enforcement agency within the
meaning of the WPA.
We find Lewandowski v Nuclear Mgt Co, LLC, 272 Mich App 120, 126; 724 NW2d 718
(2006), to be distinguishable. Lewandowski held that the federal Nuclear Regulatory
Commission (NRC) was not a "law enforcement agency," and therefore not a "public body"
under the WPA. Lewandowski relied on the fact that federal law "specifically designates the
NRC as an independent regulatory agency[.]" Id. (emphasis added). The DOE by contrast, is
not an independent regulatory agency, but an executive department. 5 USC 101. The head of
the department (the Secretary of Education), as "the principal Officer"6 of the department, is
appointed by the President of the United States, the head of the executive branch, which is
charged with law enforcement. US Const, art II, § 3 (The President "shall take Care that the
Laws be faithfully executed . . . ."). As such, given the statutory authority the DOE has to
conduct civil and criminal investigations in order to enforce the laws under its purview, the DOE
is a law enforcement agency under the WPA.
IV
Because the plain language of MCL 15.361(d) contemplates that a federal agency may
qualify as a law enforcement agency under the WPA, and given the broad grant of statutory
authority to detect and punish violations of laws relating to the DOE's operations, we conclude
that the DOE is a law enforcement agency under MCL 15.361(d)(v). Having reported
wrongdoing to a "public body" as defined in MCL 15.361(d), plaintiff demonstrated that she was
engaged in an activity protected under the WPA. The trial court erred in granting defendant's
motion for summary disposition.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
Davis, J., concurred.
/s/ Kurtis T. Wilder
/s/ Alton T. Davis
6
See US Const, art II, § 2, cl 1.
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