BOB HUGHES V REGION VII AREA AGENCY ON AGING
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STATE OF MICHIGAN
COURT OF APPEALS
BOB HUGHES,
FOR PUBLICATION
November 29, 2007
9:05 a.m.
Plaintiff-Appellant,
v
REGION VII AREA AGENCY ON AGING,
BRIAN K. ELDER, PATRICK BESON,
ELFRIEDA CONRAD, YVONNE CORBAT,
WILLIE HAYES, KENNETH HESS, JORDAN
LOCKMILLER, THOMPSON MOFFIT,
RICHARD PASIAK, ANTHONY PAWLESKI,
ADOLPH PRESIDIO, HOWES SMITH, and
MIKE WEGNER,
Defendants-Appellants,
No. 274939
Bay Circuit Court
LC No. 06-003242-CZ
Advance Sheets Version
and
LEARMAN, PETERS, SAROW & McQUILLAN,
P.L.C.,
Defendant.
Before: Donofrio, P.J., and Hoekstra and Markey, JJ.
PER CURIAM.
In this taxpayer suit for recovery of compensation paid and received in alleged violation
of MCL 46.30a, plaintiff Bob Hughes appeals as of right the trial court's opinion and order
granting summary disposition in favor of defendants.1 Because we conclude that the
prohibitions against appointment or employment of a county commissioner provided for under
1
Although the suit filed by Hughes also involved a claim for defamation, the trial court's
summary dismissal of that claim is not at issue in this appeal.
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MCL 46.30a apply only to offices or entities under the direct and exclusive control of the county
in which the commissioner sits, and that defendant Region VII Area Agency on Aging (Region
VII) is not such an office or entity, we affirm.
I. Basic Facts and Procedural History
At its heart, this case arises from the termination of Hughes's wife's employment with
Region VII. As a result of receiving information that Hughes had threatened to criticize Region
VII's handling of that matter during the broadcast of his radio show on station WHNN, defendant
Brian Elder, acting as legal counsel for Region VII, sent a letter to WHNN informing its general
manager of Hughes's alleged threat and warning that Region VII would pursue legal action
against the station for any defamatory statements Hughes made while on the air.
Alleging that Elder's letter was itself defamatory, Hughes subsequently sought to join a
state law claim for defamation with a federal civil rights lawsuit filed by his wife against Region
VII under 42 USC 1983. However, the federal court dismissed Hughes's claim, finding no
independent or supplemental basis affording it jurisdiction over Hughes's state-law claim.
Following his unsuccessful attempt to litigate his allegations in federal court, Hughes
filed the instant suit in the Bay Circuit Court alleging defamation against Elder, his law firm, and
Region VII.2 In a first amended complaint, Hughes added the individual members of the Region
VII board of directors as defendants and advanced an additional claim for alleged violation of
MCL 46.30a, which provides, in relevant part, as follows:
(1) A member of the county board of commissioners of any county shall
not be eligible to receive, or shall not receive, an appointment from, or be
employed by an officer, board, committee, or other authority of that county except
as otherwise provided by law.
(2) In case of an appointment or employment made in violation of this
section, both the person making the appointment or employment and the person
appointed or employed shall be liable for moneys paid to the person as salary,
wages, or compensation in connection with the appointment or employment. In
case the appointment or employment is made by a committee or board, a member
of the committee or board at the time the appointment was made or contract of
employment entered into shall be liable. An action for the recovery of salary,
wages, or compensation paid in connection with any appointment or employment
made in contravention of this section, may be maintained by a taxpayer of the
2
The firm at which Elder was then employed, defendant Learman, Peters, Sarow & McQuillan,
P.L.C., was dismissed by stipulation of the parties before the trial court's grant of summary
disposition.
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county. The moneys recovered in the action shall be deposited in the county
treasury to the credit of the general fund.
(3) The prosecuting attorney of the county, upon the request of the
taxpayer, shall prosecute the action in the taxpayer's behalf. [Emphasis added.]
Alleging that Elder, as a member of the Bay County Board of Commissioners, was
ineligible to serve as counsel for Region VII, Hughes generally complained that the provisions of
MCL 46.30a prohibited Region VII's retention of Elder as its general counsel.
Region VII and its individual directors moved for summary disposition of Hughes's
claims under MCR 2.116(C)(8) and (10). With regard to Hughes's claim under MCL 46.30a,
these defendants argued that the statute plainly prohibits only the appointment or employment of
a county commissioner "by an officer, board, committee, or other authority of that county . . . ."
Defendants asserted that while Elder was in fact a member of the Bay County Board of
Commissioners, Region VII is neither an "officer, board, committee, or other authority" of Bay
County. Rather, Region VII is a private, nonprofit corporation of which Bay County, along with
several other local governmental entities, is simply a member.3 Defendants further argued that
even if Region VII is a "public entity" as Hughes alleged in his complaint, Bay County's limited
membership interest of less than 10 percent precludes any finding that Region VII is an
"authority" of Bay County for purposes of MCL 46.30a.
Elder joined in the motion filed by Region VII and its directors, and also sought summary
disposition under MCR 2.116(C)(8) on the ground that, while MCL 46.30a(2) permits a taxpayer
to "maintain" a suit for recovery of compensation paid in violation of subsection 1 of the statute,
under subsection 3 it is the local county prosecutor who must file the suit. Because Hughes had
not alleged that he is the prosecutor for Bay County, Elder argued that Hughes had failed to state
a claim under the statute.
Hughes responded that Region VII is in fact an authority of Bay County and its other
member governments. In support of this argument, Hughes asserted that the only statutory
authority permitting joint endeavors by local governmental bodies is the Urban Cooperation Act
3
According to documentary evidence submitted by defendants in support of their motion for
summary disposition, although initially organized by private individuals on a "non-stock basis"
in 1975, Region VII amended its articles of incorporation in 1985 to provide for organization on
a "membership basis." The members named at that time were the 10 Michigan counties within
the area served by Region VII, namely the counties of Bay, Claire, Gladwin, Gratiot, Huron,
Isabella, Midland, Saginaw, Sanilac, and Tuscola. Region VII's articles were again amended in
1997 to add the city of Saginaw as an eleventh member of the corporation. At the time Elder
was retained to represent Region VII, the aforementioned counties and the city of Saginaw
remained the sole members of the corporation.
-3-
(UCA), MCL 124.501 et seq. Hughes noted, however, that the members had failed to comply
with the act's requirement that any such "interlocal agreement" be in the form of a contract.4 See
MCL 124.505.
Following a hearing on defendants' motions at which the parties reiterated their
respective arguments, the trial court issued an opinion and order granting summary disposition of
Hughes's claims in favor of defendants. With regard to Hughes's claim under MCL 46.30a, the
court ruled that the absence of any direct control of Region VII by Bay County rendered the
statute inapplicable to the retention of Elder as legal counsel for Region VII.5 This appeal
followed.
II. Analysis
Hughes argues that the trial court erred in concluding that Region VII is not an entity to
which MCL 46.30a applies. Thus, Hughes argues, summary disposition of his claim under that
statute was improperly granted to defendants. We do not agree.
This Court reviews a trial court's decision on a motion for summary disposition de novo.
Driver v Hanley (After Remand), 226 Mich App 558, 561-562; 575 NW2d 31 (1997). Although
defendants filed their motions for summary disposition pursuant to MCR 2.116(C)(8) and (10),
the trial court did not state the subrule on which it relied to grant summary disposition in favor of
defendants. However, where, as here, the trial court considered material outside the pleadings,
this Court will construe the motion as having been granted pursuant to MCR 2.116(C)(10).
Driver, supra at 562. "A motion for summary disposition may be granted pursuant to MCR
2.116(C)(10) when there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. The moving party is entitled to judgment as a matter of law if the
claim suffers a deficiency that cannot be overcome." Id. (citations omitted).
Because the cause of action at issue here is prescribed by statute, this Court's review must
begin with the relevant statutory language. Our goal in undertaking such review is to ascertain
and give effect to the intent of the Legislature as derived from the language of the statute.
Solution Source, Inc v LPR Assoc Ltd Partnership, 252 Mich App 368, 372-373; 652 NW2d 474
(2002). Because the Legislature is presumed to have intended the meaning it plainly expressed,
Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 219; 731 NW2d 41 (2007), "[t]he fair and
natural import of the terms employed, in view of the subject matter of the law," governs, In re
4
In so arguing, Hughes did not explain how the member entities' alleged failure to comply with
the provisions of the UCA rendered Region VII an "officer, board, committee, or other
authority" of its various governmental members for purposes of MCL 46.30a.
5
The trial court did not address defendant Elder's alternative argument that Hughes lacked
standing to initiate a suit under MCL 46.30a. Consequently, that issue is not preserved for this
Court's review. See Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999).
-4-
Wirsing, 456 Mich 467, 474; 573 NW2d 51 (1998) (citation and internal quotation marks
omitted).
In challenging the trial court's grant of summary disposition, Hughes does not dispute
that violation of MCL 46.30a plainly requires that a member of a county board of commissioners
receive an appointment from, or be employed by, "an officer, board, committee, or other
authority of that county . . . ." MCL 46.30a(1). In arguing on appeal that Elder's representation
of Region VII falls within these parameters, Hughes principally relies on the fact that Region VII
is fulfilling a public, not a private, function.6 However, the question here is not whether the
work of Region VII is more aptly described as public or private. Rather, the question in this case
is what offices or entities of a county are subject to the restrictions set forth in MCL 46.30a; in
particular, whether Region VII is an entity subject to the statute.
In answering this question, we find controlling the plain and unambiguous language of
the statute requiring that the appointment or employment of a member of a board of county
commissioners be from or by an officer or entity "of that county . . . ." MCL 46.30a(1). The
word "that," as used in this context, specifically emphasizes that the statute applies only to
offices or entities of a particular county. See Random House Webster's College Dictionary
(1992), p 1382 (defining "that" as an adjective "used to indicate a person or thing . . . by way of
emphasis"). The fair and natural import of this limitation evinces a clear policy choice by the
Legislature to limit the statute's application to offices or entities over which a county has direct
and exclusive control. This limited application, clearly precludes application of the statute to
entities in which a county merely participates jointly with other public or private organizations.
Thus, we conclude that MCL 46.30a does not apply to the circumstances of this case.
Indeed, as recognized by the trial court, Region VII is not an entity under the direct and
exclusive control of Bay County. Rather, the evidence proffered by the parties below
indisputably shows that Region VII is an entity unto itself that is independently controlled by its
own board of directors. Although each of the various governmental members that comprise
Region VII holds the power to appoint a single member to this board,7 this limited power does
6
In challenging the propriety of Elder's representation of Region VII as its legal counsel, Hughes
also relies on the provisions of the incompatible public offices act (IPOA), MCL 15.181 et seq.,
which prohibits a public officer or employee from holding "2 or more incompatible offices at the
same time." MCL 15.182; see also 15.181(b). The IPOA is not, however, the basis on which
Hughes claims standing to bring this suit. Consequently, we decline to address the extent to
which the IPOA might preclude Elder's position as legal counsel for Region VII. For this same
reason, we find unavailing Hughes's claim concerning breach of the requirements of the UCA.
Again, whether the formation of Region VII comports with the procedures for interlocal
agreements outlined in the UCA is simply not relevant to the question whether Hughes may
maintain a cause of action under MCL 46.30a.
7
Pursuant to its amended articles, the board of county commissioners for each member county
and the city commission of Saginaw each appoints a member of Region VII's board of directors,
with one additional member being elected by the board itself.
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not imbue any individual member of Region VII with direct and exclusive policy-making,
advisory, or administrative control of that body. Thus, as found by the trial court, "any powers
flowing to . . . Elder by virtue of his status as a Bay County Commissioner could not secure his
selection by the independent governing body of Region VII." See Crain v Gibson, 73 Mich App
192, 205; 250 NW2d 792 (1977) (noting that the limitations on the powers of a county
commissioner set forth in chapter 46 of the Michigan Compiled Laws "are designed to protect
the public by keeping the business of government untainted by the business of self-interest"). As
such, although arguably performing a function that is public in nature, Region VII is simply not
an "officer, board, committee, or other authority" of Bay County within the plain meaning of
MCL 46.30a. The trial court therefore did not err in granting summary disposition of Hughes's
suit under that statute.8
Affirmed.
/s/ Pat M. Donofrio
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
8
Because MCL 46.30a is inapplicable to the facts of this case, we need not address defendant
Elder's alternative and unpreserved argument that pursuant to MCL 46.30a(3), a suit under the
statute must be brought by the county prosecutor and that Hughes, therefore, lacked standing to
assert a claim under MCL 46.30a.
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