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Grant v. Meridian Charter Township2/15/2002
FOR PUBLICATION
9:05 a.m.
In this wrongful discharge action, petitioner appeals as of right from the circuit court's order denying his application for an order of superintending control and to show cause. We affirm.
Citing incompetence, respondent discharged petitioner - a Vietnam veteran - from his employment as a paramedic. Petitioner alleges that the discharge was in violation of the procedures outlined in the Veterans' Preference Act (VPA), MCL 35.401 et seq., and that in reviewing the matter the circuit court failed to properly employ the applicable standard of review.
Generally, we review a circuit court's decision to deny petitioner's application for superintending control for an abuse of discretion. In re Gosnell, 234 Mich App 326, 333; 594 NW2d 90 (1999). However, to the extent that resolution of this matter requires that we interpret the provisions of the VPA, our review is de novo. See e.g., Oakland Co Bd of Road Comm'rs v Michigan Property & Casualty Guaranty Ass'n, 456 Mich 590, 610; 575 NW2d 751 (1998).
The first issues to be resolved in this matter are whether respondent complied with the procedural requirements of the VPA in discharging petitioner, and if not, what remedies are available to petitioner as a result of that failure. Section 402 of the VPA provides, in relevant part, that " o veteran . . . shall be removed . . . except for . . . incompetency; and [that] such veteran shall not be removed . . . except after a full hearing before . . . the township board . . . ." MCL 35.402.
This section further provides that, at least fifteen days before the pre-termination hearing, the veteran must be given written notice of both the cause for removal and the fact that he can only be removed on written order of the board after a full hearing has been held. Id. In this case, it is undisputed that petitioner was never afforded such notice and was removed prior to a hearing before respondent's township board, in clear violation of the foregoing language. See Sherrod v Detroit, 244 Mich App 516, 523; 625 NW2d 437 (2001), quoting Jackson v Detroit Police Chief, 201 Mich App 173, 176; 506 NW2d 251 (1993).
However, in addition to the pre-termination notice and hearing requirements discussed above, the VPA provides " hat where veteran has been removed . . . other than in accordance with . . . this act, he shall file a written protest . . . within 30 days . . . , otherwise the veteran shall be deemed to have waived the benefits and privileges of this act . . . ." MCL 35.402. Relying on this language, as well as this Court's decision in Adams v Detroit, 184 Mich App 589; 458 NW2d 903 (1990), respondent argues that the post-termination hearing held at petitioner's request was sufficient to meet the requirements of the VPA, despite respondent's failure to afford petitioner a pre-termination hearing. We disagree. This Court more recently discussed the apparent conflict within ยง 402 as follows:
Defendants rely on Adams, [supra at 597], where this Court expressed strong disagreement with the plaintiff's argument that the VPA required his employer to hold a full hearing before his termination. Id. However, another panel of this Court, in Jackson, supra at 177, n1, rejected the conclusion in Adams that the employer need not hold a hearing before taking action. We are bound to follow Jackson, which was issued after November 1, 1990. MCR 7.215(H)(1). Moreover, Jackson conforms with the plain language of the act, which states that a "veteran shall not be removed, transferred or suspended for any cause above enumerated from any office or employment, except after a full hearing . . . ." MCL 35.402[ ]. See also Ja
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