Respondents appeal from an order of the circuit court reversing their decision to terminate petitioner’s employment, and remanding with instructions to determine a sanction not to exceed a two-year suspension. Petitioner cross-appeals from the circuit court order upholding the determination that petitioner had violated Civil Service Rules 32.1(a) and (b), relating to conduct unbecoming a state employee and failure to carry out duties, respectively.
Petitioner was employed by the Michigan Department of Social Services as hearing officer in the Bureau of Administrative Hearings. The bureau provides administrative hearings to applicants for, or recipients of, public assistance who have been denied assistance or whose grants have been altered, reduced or terminated.
Pursuant to § 9 of the Social Welfare Act, MCL 400.9; MSA 16.409, the Director of the Department of Social Services originally issued all decisions upon the hearing record as to all hearings requested with respect to federally funded assistance programs. At that time, hearing officers issued only "recommended” decisions to the director.
On January 4, 1977, the director of the dss, because of the large number of hearing decisions required, transferred his authority to issue decisions to the hearing officers. In January, 1978, because of problems with respect to lack of uni *490 formity of decisions coming from the bureau on the same or similar facts, the director imрlemented a rehearing system which authorized petitioner’s supervisor to order rehearings where errors of law might have been made in the original hearing decision. Under this system, the dss or the claimant could request that a case be reheard as to matters of law, and petitioner’s supervisor exercised his discretion to determine if a rehearing was in order. At that point, the case would be assigned to a different hearing officer, usually the deputy director of the bureau, who was bound to accept and utilize the findings of fact of the original hearing officer. 1
In September, 1979, one of petitioner’s decisions was ordered up for rehearing. On October 4, 1979, petitioner issued an order in the same case ordering his supervisor and thе deputy director to cease and desist "now or in the future” from interfering in any way with the petitioner’s decisions, alleging that they had no authority to order rehearings of cases decided by petitioner. Attached to the order were two criminal statutes regarding state officials’ failure to enforce laws and neglect of duty, a page from the Code of Ethics for State Employees regarding unethical influencing of state proceedings, and several cases on administrative law dealing with corruption and bribery. Copies of the order were sent to petitioner’s supervisor, the Director of the Office of Legal Affairs, the Director of the Bureau of Income Assistance of the dss, the Governor, the Attorney General, the Governor’s legal advisor, the Kent County dss, most of the *491 other hearing officers in the bureau, and the claimant in the case ordered up for rehearing.
On October 12, petitioner’s supervisor and the Director of the Office of Legal Affairs met with petitioner, the conflict was discussed, and petitioner was informed that if he acquiesced in his supervisor’s authority to order a reheаring, he would not be dismissed. Petitioner refused to acquiesce, whereupon he was informed that he would have to resign or be fired. Petitioner was dismissed on October 23, 1979, for conduct unbecoming a state employee and failure to carry out the duties and obligations of his office. Attached to the report was a memorandum from petitioner’s supervisor indicating the fаctual basis for dismissal, including insubordination and failure to impartially carry out his obligations as a hearing officer. 2
Petitioner appealed his decision through a fourth-step grievance hearing. The hearing officer rejected petitioner’s claim that "progressive discipline” mandated a sanction less than dismissal. He reasoned that petitioner’s insubordination made anything less than dismissal an ineffective remedy. Petitioner appealed the decision to the Employment Relations Board, which affirmed, and to the Civil Service Commission, which summarily affirmed on February 3, 1983. Thereafter, the decision was appealed to the circuit court. The circuit court rejected petitioner’s claim that a public-sector employee cannot be disciplined when he acts under a reasonable, good faith, although erroneous, belief that government conduct involving his duties is illegal. The lower court further held that *492 Civil Service Rule 32.1(b) authorizing discipline for conduct unbecoming a state employee was not unconstitutionally vague as applied to petitioner.
However, the circuit court held that, under the circumstances of petitioner’s case, dismissal was inappropriate. The court reasoned that petitioner had served several years without breaking any regulations, and that his work record was totally free of reprimands, suspensions or demotions. The court found that the lack of any attempt at corrective discipline in these circumstances required reversal. The court remanded to the Employment Relations Board, stating that "any sanction imposed which exceeds two years’ suspension without pay would be arbitrary and capricious.”
We first address respondents’ sole claim on appeal.
i
Respondents contend that the decision of the Employment Relations Board was supported by competent, material and substantial evidence on the whole record and, therefore, must be affirmed. Const 1963, art 6, § 28.
Substantial evidence is such evidence as a "reasonable mind” would accept as adequate to support the decision.
Parnis v Civil Service Comm,
Our review of the record leads us to conclude that a reasonable person could not accept as adequate the evidence supporting petitioner’s discharge.
Progressive discipline may be utilized at the discretion of the commission. See
Golembiowski v Madison Heights,
Section 32 of the Civil Service Rules promulgated in 1978 provides three "causes” for suspension or dismissal. The Civil Service Commission is bound to follow this rule, which it promulgated, of "for cause” discipline or suspension.
Rand v Civil Service Comm,
Civil Service Rule 32.1 permits dismissal or suspension for cause, impliedly in the discretion of the agency. This requires the agency to exercise its discretion and act reasonably in deciding between alternatives in any given factual situation.
A single incident of misconduct may be so gross and egregious as to warrant dismissal. However, where an employee’s previous record is unblemished, we believe that a department’s failure to consider progressive discipline renders its decision-making arbitrary. Here, where that dismissal was for misconduct indiсting the very person who disciplined the employee, we must also conclude that *494 failure to consider progressive discipline at least evidences caprice, caprice understandable in the circumstances here. This Court does not second guess departmental decision-making. Nonetheless, where an agency has the discretion to aсt in a certain manner, this Court must see that the discretion is exercised where appropriate, and not abused in the process of its exercise.
To the extent the record supports an inference that the department ruled out progressive discipline as a practical alternative because of petitioner’s stated intention not to aсcede to legitimate authority, we must again conclude that such an exercise of discretion is arbitrary and capricious.
In determining whether dismissal for improper conduct is an appropriate remedy in a governmental employment setting, there must be a balance struck between the rights of the employee and the need to have governmental operations run smoothly.
Michigan State Employees Ass’n v Dep’t of Mental Health, 421
Mich 152, 164;
Admittedly, the misconduct here was wanton and wilful, and the reсord discloses that it disrupted the bureau. Therefore, we find the circuit court’s remand for entry of a disciplinary order *495 not to exceed two years’ suspension without pay to be reasonable and supported by substantial evidence on the record. That order is affirmed.
ii
Petitioner contends that being disciplined for the conduct at issue violates public policy because his actions represented a good faith attempt to protect the due process rights of claimants.
It is difficult for this Court, which has never observed the demeanor of Mr. Battiste, to determine if he made his decision to proceed based on a good faith belief that the independence of the department’s hearing officers, and consequently the due process rights of claimants, had been threatened.
The independence of hearing officers is essential to the fair and impartial administration of any adjudicatory system for resolving disputes within a governmental agency. Accordingly, this Court would support good faith, appropriate attempts at insuring the independence of such officers.
Howеver, in the instant case, any such good faith notwithstanding, Mr. Battiste proceeded in a wholly inappropriate manner. The issuance of an official-looking order, a copy of which was mailed to the claimant, which contravened and purported to set aside an order of his own superiors in a case in which Battiste had already fully performed his own function, was inexcusable. In this case of "whistle-blowing” gone amok, discipline for such conduct is not contrary to public policy, but, in fact, is mandated by public policy.
hi
In a similar vein, petitioner argues that he *496 cannot be punished for asserting jurisdiction over the rehearing because such an assertion is, according to petitioner, mandated by the Administrative Procedures Act (apa), MCL 24.201 et seq.; MSA 3.560(101) et seq., and supported, at leаst analogously, by MCR 2.613(B). We find petitioner’s claim in this regard to be without merit.
Petitioner contends that §§ 79 and 87(3) of the apa, MCL 24.279; MSA 3.560(179), and MCL 24.287(3); MSA 3.560(187)(3), read in conjunction, require that the same hearing officer preside where a rehearing is ordered. Petitioner claims this result is buttressed by the policy behind MCR 2.613(B), which provides that no judgment or order of a circuit judge may be set aside by another circuit judge.
Sеction 79 of the apa provides for designated persons to serve as presiding officers in contested cases. It provides for assignment of another presiding officer in case of personal bias or where it is impracticable for the officer originally designated to preside to "continue the hearing.” Section 87(3) provides that "[a] rehearing shall be noticed and conducted in the same manner as an original hearing.” We reject petitioner’s contention that the same officer must preside over a rehearing unless biased or unless it is otherwise impracticable for him to preside at the rehearing.
Practically speaking, a presiding officer’s jurisdiction substantially ends upon rendition of his decision following thе hearing over which he presided. Any rehearing ordered thereafter, in the discretion granted the agency by § 87(3), must be conducted with the same procedural safeguards of §§ 71-86 of the apa as applied to the original hearing, including a proper presiding officer and safeguards for removal and replacement of biased officers, or officers otherwise unable to preside. We
*497
decline to hold that § 87(3) requires that the same presiding officer preside at the rehearing. See
Campbell v Marquette Prison Warden,
Because § 87(3) of the apa specifically permits an agency to order rehearings, we reject petitioner’s reliance on the policy behind MCR 2.613(B), which prohibits one circuit judge from setting aside the judgment or order of anothеr circuit judge in the absence of a disability of the latter. We believe that § 87(3) represents a clear legislative intent to permit such rehearings in administrative cases to take full advantage of the agency’s specialized expertise before jurisdiction is relinquished.
Petitioner argues that because a panel of this Court found the rehearing system utilized by the dss in the instant сase contrary to the mandates of § 87(3), public policy dictates that he not be disciplined for protesting against that system. In an unpublished per curiam opinion, Newhof v Director, Michigan Dep’t of Social Services, (Docket No. 54274, July 15, 1981), this Court held that because the rehearing system utilized did not permit a claimant to present evidence or fully argue his case on rehearing, the system violated the mandate of § 87(3) that reheаrings "be noticed and conducted in the same manner as an original hearing.” 3
The fact that the system violated the statute notwithstanding, petitioner has no colorable claim in this regard. As explained above, a rehearing need not be presided over by the same officer who presided at the original hearing. The Court in Newhof did not so hold. Thus, irrespective of petitionеr’s claim of continuing jurisdiction and con *498 trary to his allegation of unethical conduct, we find these claims to be without merit. The channels petitioner used to vent his protests were wholly inappropriate.
IV
Next, petitioner attacks Civil Service Rule 32.1(b) which states that "conduct unbecoming a state employee” constitutes proper ground for dismissal. Petitioner contends Rule 32.1(b) is void for vagueness because it fails to warn civil servants of the conduct it proscribes.
Regardless of how vague such a rule may be in the abstract, if petitioner’s conduct was clearly violative of that rule, his challenge will not be sustained.
Parker v Levy,
In
Rinaldi,
this Court relied substantially on the United States Supreme Court’s opinion in
Parker, supra.
In
Parker,
the Court upheld the court martial of an Army physician under the "conduct unbecoming an officer and gentleman” standard. The Court’s opinion emphasized three characteristics of the physician’s case in rejecting the "vagueness” challenge: (1) Prior construction of the regulation narrowed its scope and supplied "considerable specificity by way of examples of the conduct.”
Rеviewing petitioner’s case, similar conduct was found to constitute conduct unbecoming a state employee in
Moulton v Revenue Dep't,
Civil Service Rule 32.1 is not void for vagueness as applied to petitioner’s conduct.
v
Last, petitioner argues that discipline for his conduct violated his First Amendment rights to free speech. Petitioner cites
Pickering v Bd of Ed,
Both
Pickering
and
Pilarowski
involved the disciplining of employees for speech wholly unrelated to the employment relationship. The present case is more of the type envisioned by the United States Supreme Court in
Arnett v Kennedy,
The order of the circuit court is affirmed. Accordingly, this matter is remanded to the Employment Relations Board for entry of an order in accordance with the circuit court opinion and order in the instant case.
Notes
The rehearing system utilized by the department was found to be unlawful in Newhof v Director, Dep’t of Social Services, (Docket No. 54274, July 15, 1981), an unpublished per curiam opinion of this Court. For reasons stated in Part in of this opinion, the fact is of limited relevance to this opinion.
Initially, the department had raised certain other allegations concerning petitioner’s job performance. However, those charges were withdrawn at the outset of the fourth-step grievance hearing, leaving only the insubordination and conduct unbecoming a state employee charges to be decided below.
We note that unpublished opinions of the Court of Appeals have no precedential value. MCR 7.215(C);
Stine v Continental Casualty Co,