Charles H. Jackson brought this action against Detroit Police Chief William L. Hart, seeking a declaration of his right to protection under the veterans’ preference act (vpa), MCL 35.401 et seq.; MSA 4.1221 et seq. The trial court summarily dismissed plaintiffs complaint pursuant to MCR 2.116(C)(8). Plaintiff appeals as of right. We reverse.
A motion for summary disposition brought pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the claim by the pleadings alone.
Parkhurst Homes, Inc v McLaughlin,
According to his complaint, plaintiff was a police department commander in Detroit. The city char *175 ter provides that police commanders serve at the pleasure of the police chief. On July 27, 1990, defendant, then the police chief, told plaintiff that he would be demoted to the rank of lieutenant on August 16, 1990. Under department rules, the demotion would result in plaintiff being transferred from his position of commanding the second precinct.
Plaintiff had served in the armed forces during the Korean conflict, and had been honorably discharged. On August 15, 1990, he filed this action, seeking a declaration that he was entitled to the protection of the vpa. Two days later, plaintiff was demoted without a hearing.
The trial court ruled that, because the city charter specifies that police commanders serve at the pleasure of the police chief, plaintiff was not protected by the vpa. Plaintiff contends that this ruling was in error. We agree.
The vpa provides in part:
No veteran . . . holding an office or employment in a public department . . . shall be removed or suspended, or shall without his consent be transferred from such office or employment except for official misconduct, habitual, serious or willful neglect in the performance of duty, extortion, conviction of intoxication, conviction of felony, or incompetency .... [MCL 35.402; MSA 4.1222.]
The only veterans employed by state and local governments who are not protected by the vpa are department heads, members of commissions and boards, heads of institutions appointed by the governor, officers appointed by a city’s mayor under the city’s charter, and first deputies of such people. Id. Plaintiff was neither appointed by the mayor nor a first deputy of the police chief. Consequently, the exceptions do not apply to plaintiff *176 and, as a covered employee, he is entitled to the protections the vpa provides.
The statute’s coverage includes protection from demotion.
Cremer v Alger Co Rd Comm’rs,
Defendant argues that plaintiff is a temporary employee because police commanders serve at the pleasure of the police chief. We disagree. Serving at the pleasure of the police chief makes a commander’s employment terminable at will. However, at-will employment is quite different from temporary employment. The office of second precinct commander existed before plaintiff occupied it, and presumably will continue to exist indefinitely into the future. Thus, although a particular police officer’s hold on the office may be tenuous, the office itself is not temporary.
The vpa protects veterans holding at-will public employment positions by converting those positions to ones that are terminable only for just cause; the vpa does not regulate the terms of employment, but it does affect the status of employment as established. See Walkling, supra at *177 200. The trial court erred in finding that a commander’s at-will status made plaintiff a temporary employee not protected by the statute. We reverse the trial court’s dismissal of plaintiff’s complaint.
Having decided that plaintiff is entitled to the protection of the vpa, we must determine what remedy is available to redress defendant’s failure to abide by the vpa. We do not concur with plaintiff’s conclusion that he is entitled to automatic reinstatement with back pay.
The vpa gave plaintiff a right to notice and a hearing before his demotion. The statute in clear language prohibits taking any employment action against a veteran until after there has been notice and a hearing. See MCL 35.402; MSA 4.1222.
1
Failing to give notice and a hearing is a violation of the vpa subject to criminal prosecution. See MCL 35.403; MSA 4.1223. However, the remedy the vpa provides for a violation of the right to notice and a hearing is not automatic reinstatement with back pay. Because plaintiff was demoted without a hearing, he was required to file a written protest with the mayor or he would be deemed to have waived the protections of the vpa. MCL 35.402; MSA 4.1222. If plaintiff filed such a protest, the mayor would be required to conduct a hearing, or refer the protest to the city’s legal department to conduct a hearing.
Id.
Plaintiff would be entitled to back pay only if the mayor found plaintiff’s allegations to be true and determined that he should be reinstated.
Id.;
see also
Valentine v Redford Twp Supervisor, 371
Mich 138, 147;
Reversed._
Notes
We disagree with the conclusion reached in
Adams v Detroit,