In re PAYNE (PAYNE v MUSKEGON)
Docket No. 94486
Supreme Court of Michigan
Argued October 5, 1993. Decided March 29, 1994.
444 Mich. 679
In an opinion by Justice BOYLE, joined by Chief Justice CAVANAGH, and Justice BRICKLEY, and an opinion by Justice RILEY, joined by Justice GRIFFIN, the Supreme Court held:
A court, in reviewing the decision of an administrative agency, such as a municipal civil service commission should accept the agency‘s findings of fact if they are supported by substantial evidence.
1. Substantial evidence is the amount of evidence a reasonable mind would accept as sufficient to support a conclusion. While it consists of more than a scintilla of evidence, it may be substantially less than a preponderance. In practice, however, the formula cannot be applied mechanically so as to take the place of analysis by the court. A court has expertise in adjudication-determining disputed facts. A municipal civil service board has expertise in determining job requirements for city employees. The role of a municipal civil service commission is to decide what qualifications and behavior a city will require of
2. In this case, the record of the commission‘s hearing contained sufficient evidence to support the plaintiff‘s discharge. The commission found that the plaintiff violated its rule regarding the performance of assigned work. The circuit court should have accepted that finding because the plaintiff conceded that she had not performed the work at issue. In addition, because determination of the appropriate penalty did not involve questions of fact, it is not subject to substantial evidence review. Michigan law does not require a city to retain such an employee.
Affirmed in part, reversed in part, and remanded.
Justice BOYLE, joined by Chief Justice CAVANAGH, and Justice BRICKLEY, further stated that because the common-law substantial evidence test satisfies the minimum constitutional requirements for judicial review of administrative agency findings, it is not necessary to reach the question whether
Decisions of municipal civil service commissions are reviewed through original actions for superintending control. Superintending control is available only where, as in this case, the party seeking the order does not have another adequate remedy such as an appeal. The standard for issuing an order of superintending control depends on the type of suit involved. Because the common-law standard of review of the factual findings of municipal civil services agencies is the substantial evidence test, and because the scope of review for superintending control was not altered when it replaced the common-law extraordinary writs, circuit courts should assume superintending control over a municipal civil service commission where the record does not contain substantial evidence to support its findings.
Justice RILEY, joined by Justice GRIFFIN, concurring in part and dissenting in part, further stated that a proper construction of
The Muskegon Civil Service Commission is an administrative agency that affects private rights by exercising quasi-judicial powers. As an agency, it is subject to direct review by the
Justice LEVIN, joined by Justice MALLETT, dissenting, stated that a decision to discharge a civil service employee after a hearing is subject to judicial review, pursuant to
A municipal civil service commission is an administrative agency existing under the constitution or by law. Its final decisions, findings, rulings, and orders are judicial or quasi-judicial and affect private rights or licenses within the meaning of
As provided in the constitution, such review must include, as a minimum, the determination whether such final decisions, findings, rulings, and orders are authorized by law, and, where a hearing is required, must include as a minimum whether the decision, findings, rulings, and orders are supported by competent, material, and substantial evidence on the whole record. Therefore, the circuit court did not err in reviewing the decision of the Muskegon Board of Civil Service Commissioners to determine whether there was competent, material, and substantial evidence on the whole record to support the decision to discharge the plaintiff, and not solely to determine whether there was any competent evidence to support the decision. Nor did the court err in determining that there was not sufficient evidence to justify the discharge decision and in remanding for imposition of a lesser penalty.
Although the Court of Appeals observed correctly that a writ of superintending control is the means by which a circuit court exercises its power of judicial review of a decision of an administrative tribunal where an appeal is not specifically provided for by statute, it erred in concluding that, because superintending control replaces certiorari, and issuance of a writ of superintending control may be extraordinary, judicial review is always limited to questions of law and, hence, to a determination whether there is any competent evidence to support a finding of fact.
An agency exists under the constitution or by law at least
Both the constitution and the Home Rule Act authorize local units of government to provide for a merit or civil service system for their employees. It is clear that administering a municipal civil service commission is a governmental function authorized and provided for by both the constitution and by law, and that a local civil service commission is an agency existing under the constitution or by law within the meaning of
The lead opinion‘s holding that the penalty assessed by the board is not subject to substantial evidence review for the reason that the determination of the appropriate penalty did not involve any questions of fact because the commission‘s rules allow it to terminate the plaintiff under the facts she conceded, ignores that the constitutional standard, competent, material, and substantive evidence on the whole record, applies not only to findings of fact, but also to decisions, rulings, and orders. Contrary to the suggestion in the lead opinion, federal courts review an agency‘s decision discharging an employee to determine whether the punishment was proportionate. In three cases decided after the adoption of the 1963 Constitution, the Supreme Court, without referring to
193 Mich App 620; 484 NW2d 759 (1992) affirmed in part and reversed in part.
Pinsky, Smith, Fayette & Hulswit (by H. Rhett Pinsky) for the plaintiff.
Parmenter O‘Toole (by John C. Schrier) for the defendants.
BOYLE, J. This case presents the question of the
I
The appellant, Marcia Payne, worked for the City of Muskegon in several clerical and administrative positions. In December, 1988, she transferred to the position of administrative secretary for the city‘s personnel director, Truman Forest, at the request of Mr. Forest.
The personnel department records information about city employees and their status in four cross-referenced files, each having a different purpose: the employee‘s personnel file; a quick-reference index consisting of a 3 by 5 card for each employee
On Friday, June 3, 1989, Forest returned to the office to discover several things amiss: promotional announcements that should have been posted on the bulletin board were not, a number of completed employment applications remained on Payne‘s desk rather than being locked away to protect their confidentiality, and a number of items from the April and May Muskegon Civil Service Commission meetings had not been filed and recorded. In an effort to correct these problems, Forest wrote the plaintiff a letter of reprimand detailing the assignments she had not completed, including the specific items from the minutes of the April and May commission meetings that had not been recorded. The letter cited the plaintiff for violating Rule X, § 3(i) of the Muskegon Civil Service Rules, and instructed her to schedule her work so that she could record the information from the minutes within seventy-two hours of each meeting.
Approximately a week later, under the assumption that the plaintiff had completed the assignments detailed in the June 5 letter, Forest decided that she had passed her probation period. In an addendum to her performance evaluation, he wrote that although Payne had been “quick to
Upon returning from vacation on July 10, Forest discovered several employment applications on Payne‘s desk. This discovery prompted him to check whether the plaintiff had completed filing the items listed in the June 5 warning letter. She had not. In addition, the plaintiff had not yet recorded many items from the June 26 meeting.
Payne returned from her own vacation on July 17, and told Forest that part-time employee Larry Townsend, not herself, was responsible for leaving the applications unsecured. After considering the entire situation, Forest decided to terminate the plaintiff ‘s employment.
Payne appealed to the Muskegon Civil Service Commission. At the hearing, plaintiff submitted that termination was too harsh a penalty, but admitted that, as of July 17, she still had not performed some of the work she was warned about failing to complete in the June 5 letter. Specifically, plaintiff acknowledged that she had failed to enter items from April and May in the record reflecting collective personnel action by date and had not entered items from the June meeting in either that record or the employee quick reference index. The rules of the Muskegon Civil Service Commission provide that failure to perform work after being warned is a “Group 3 Offense,” which
The plaintiff then petitioned the Muskegon Circuit Court for an order of superintending control. The circuit court reviewed the record of the hearing for competent, material, and substantial evidence, and ruled that there was insufficient evidence to support the plaintiff‘s termination. The court set aside the plaintiff‘s discharge and remanded the case to the commission to impose a less severe penalty.
The city appealed, arguing among other things that the circuit court applied the wrong standard of review. The Court of Appeals agreed and reversed in a per curiam opinion, holding that the proper standard was “any competent evidence to support the findings made below.” 193 Mich App 620, 623; 484 NW2d 759 (1992). The Court remanded the case, instructing the circuit court not to substitute its judgment for the civil service commissioners’ “[i]f there is any competent evidence on the record that the plaintiff, after a warning, failed to perform her work completely ....” Id. We granted leave. 442 Mich 925 (1993).
Decisions of municipal civil service commissions are reviewed through original actions for superintending control. See, e.g., Beer v Frazier Civil Service Comm, 127 Mich App 239, 243; 338 NW2d 197 (1983); Rinaldi v Livonia, 69 Mich App 58, 69; 244 NW2d 609 (1976). Superintending control is available only where the party seeking the order does not have another adequate remedy.
A
The standard for issuing an order of superintending control depends on the type of suit involved. Superintending control replaced the common-law extraordinary writs-“the writs of certiorari and prohibition and the writ of mandamus when directed to a lower court or tribunal.”3
Prior to the creation of superintending control, Michigan courts reviewed the decisions of municipal civil service boards through certiorari. See Detroit Public Welfare Comm v Detroit Civil Service Comm, 289 Mich 101, 106-107; 286 NW 173 (1939); Schubert v Dearborn Civil Service Bd, 311 Mich 553, 561; 19 NW2d 96 (1945); O‘Dell v Flint Civil Service Comm, 328 Mich 631, 636-637; 44 NW2d 157 (1950). Certiorari was the common-law method of correcting errors of administrative agencies. See, generally, Town of Reading v Attorney General, 362 Mass 266; 285 NE2d 429 (1972); Rhodes v Woodstock, 132 Vt 323; 318 A2d 170 (1974); Park Hosp Dist v Larimer Co Dist Court, 192 Colo 69; 555 P2d 984 (1976).
The writs were issued less frequently in criminal cases than in civil cases. “A jurisdiction may ordinarily treat the writs as flexible devices allowing review of a wide range of nonappealable orders, but sharply restrict that flexibility in the context of criminal cases.” 3 LaFave & Israel, Criminal Procedure, § 26.4(c), p 228. This principle is reflected in In re People v Burton, 429 Mich 133, 139; 413 NW2d 413 (1987), and Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972). The trial court in Burton had granted the defendant a new trial. The prosecutor sought interlocutory review by asking the Court of Ap-
Unification of the writs under superintending control did not change the scope of review.6 Drouillard v Roseville, 9 Mich App 239, 243; 156 NW2d 628 (1967); Scallen v State Health Comm‘r, 376 Mich 64, 71; 135 NW2d 426 (1965) (SOURIS, J., dissenting). Instead, the purpose of acts that abolished these classifications was, as eloquently explained by the Court of Appeals of New York, “to wipe out technical distinctions which had been a snare for suitors approaching the court for relief and which, at times, hampered the court in granting relief for proven grievances.” Newbrand v Yonkers, 285 NY 164, 174; 33 NE2d 75 (1941). In Michigan, the unification of these writs was likewise intended to “eliminate frequent mistakes in the choice of remedies.” Lorland Civic Ass‘n v DiMatteo, 10 Mich App 129, 137; 157 NW2d 1 (1968).
B
Given that the scope of review in complaints for
Review by certiorari involved more than asking whether the lower court or tribunal clearly abused its power. The standard Michigan formulation of this principle is found in Jackson v People, 9 Mich 111, 119 (1860). After an extensive review of common-law authority, Justice CAMPBELL, with Justice CHRISTIANCY concurring, concluded “that the usual office of the common law writ is to inquire into something more than jurisdiction.” While the reviewing court addresses only questions of law, these questions include whether the record support the findings of the lower court:
[I]n examining into the evidence the appellate court does so not to determine whether the probabilities preponderate one way or the other but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate tribunal. . . . “[A]ll the facts necessary to subject the party to the penalty imposed by the act of parliament must appear upon the information, and must be established by proof.” [Id. at 120.]8
See also In re Fredericks, 285 Mich 262, 267; 280 NW 464 (1938) (on certiorari, the court will “‘review the evidence to ascertain only whether there was reasonable ground for the decision made’ “); Erlandson v Genesee Co Employees’ Retirement Comm, 337 Mich 195, 202; 59 NW2d 389 (1953); State Bar Grievance Administrator v Estes, 390 Mich 585, 601-602; 212 NW2d 903 (1973) (LEVIN, J., concurring).
Review in the nature of certiorari meets the requirements for review of certain administrative agency decisions set forth in the
III
The plaintiff argues that we should affirm the circuit court‘s decision because the record of the commission‘s hearing did not contain sufficient evidence to support her discharge. We disagree.
A
When reviewing the decision of an administrative agency for substantial evidence, a court should accept the agency‘s findings of fact if they are supported by that quantum of evidence. A court will not set aside findings merely because alternative findings also could have been supported by substantial evidence on the record. See Arkansas v Oklahoma, 503 US 91, 113; 112 S Ct 1046; 117 L Ed 2d 239, 259 (1992).
“Substantial evidence” has a classic definition: the amount of evidence that a reasonable mind would accept as sufficient to support a conclusion. While it consists of more than a scintilla of evidence, it may be substantially less than a preponderance. Tomczik v State Tenure Comm, 175 Mich App 495, 499; 438 NW2d 642 (1989); Detroit Symphony Orchestra at 122. Although we do not reach the constitutional question, the substantial evidence standard found in
chestra, the Court explained that review under the constitutional substantial evidence standard is not de novo review:
The cross-fire of debate at the Constitutional Convention imports meaning to the “substantial evidence” standard in Michigan jurisprudence. What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record-that is, both sides of the record-not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding by displacing an agency‘s choice between two reasonably differing views. Cognizant of these concerns, the courts must walk the tightrope of duty which requires judges to provide the prescribed meaningful review. [Id. at 124.]
In practice, as Professor Davis illustrates, the scope of review depends on factors other than judicial fidelity to a verbal formula. 5 Davis, Administrative Law (2d ed), § 29.3, pp 340-344. In the words of Justice Frankfurter, the substantial evi-
Attempts to clarify the standard of review by embroidering the formula with more elaborate verbalisms may be more harmful than helpful. According to Professor Davis, the formula “alone is not harmful, but it becomes harmful when it takes the place of analysis that shows why the court reviews in a particular manner or degree. . . .” 5 Davis, supra at 340. An understanding of the reasons behind judicial review of administrative decisions is the base line for determining the scope of judicial inquiry.
The underlying purpose of judicial review of the factual findings of administrative agencies relates to the comparative expertise of the two institutions. A court is expert at adjudication-determining disputed facts by holding hearings. A municipal civil service board, on the other hand, the administrative agency in this case, is expert at determining job requirements for a city employee. To this end, the agency may establish qualifications and rules for employee conduct on the job. These rules might be considered promises to employees that their jobs will be secure as long as they perform them acceptably, and that this security is not subject to, in Professor Nozick‘s words, “[t]he [z]igzag of [p]olitics.”10 In that sense, the
In this case, the rules of the Muskegon Civil Service Commission provide that an employee who fails to perform work after being warned may be terminated. See ante, p 686, n 2. The agency found11 that the plaintiff violated this rule. The circuit court should have accepted this finding because the plaintiff concedes that as of July 17 she had not performed some of the very work she was warned about failing to complete in the letter of June 5. As a result of her failure, some of the items from April and May had not yet been properly recorded.
B
The plaintiff also complains, as she has throughout this matter, that the Muskegon Civil Service Commission should have imposed a less severe penalty. She notes that her actions could have
The determination of the appropriate penalty did not involve any questions of fact because the commission‘s rules allow it to terminate the plaintiff under the facts she conceded.12 Consequently, this determination is not subject to substantial evidence review. Cf. NLRB v Curtin Matheson
The rule-making authority of municipal civil service commissions, unlike other administrative agencies, is not restricted. Most administrative agencies, for example the Teacher Tenure Commission, see
City employees, like other employees, may be terminated at will unless distinguishing circumstances dictate otherwise. See Rowe v Montgomery Ward & Co, Inc, 437 Mich 627; 473 NW2d 268 (1991). To the extent that a civil service system presents distinguishing circumstances, employees can expect to retain their jobs as long as they follow the rules of the civil service commission.13 In this case, our review for substantial evidence reveals that the commission followed its own rules.
Contrary to the assertion in the dissenting opin-
IV
We remand the case to the circuit court for entry of judgment in favor of the defendant.
CAVANAGH, C.J., and BRICKLEY, J., concurred with BOYLE, J.
RILEY, J. (concurring in part and dissenting in part). Although I agree that defendant‘s dismissal of plaintiff was valid and join part III of the lead opinion, because I find that the substantial evidence standard of
I
At issue in the instant case is the applicable standard of review for a writ of superintending control directed at a municipal civil service commission. The lead opinion does not examine whether
“When a reviewing court issues an order of superintending control, the reviewing court is invoking an extraordinary power.” In re People v Burton, 429 Mich 133, 144; 413 NW2d 413 (1987). The writ of superintending control “supercedes the writs of certiorari, mandamus and prohibition, providing one simplified procedure for reviewing or supervising the actions of lower courts and tribunals.” Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 679; 194 NW2d 693 (1972).
This Court has long held that in cases involving a writ of certiorari the reviewing court may only consider questions of law, and may not weigh conflicting evidence “unless there was a total want of testimony to sustain” a finding necessary to the success of an action. Gaines v Betts, 2 Doug 98, 100 (Mich, 1845). Justice CAMPBELL, with Justice CHRISTIANCY concurring, elaborated regarding the deferential nature of the writ:
It was held by this Court in Berry v Lowe, 10 Mich 9 [1862], that the Circuit Court could not reverse the judgment of [a lower tribunal on a writ of certiorari] on the evidence, unless no proof could be found in the case which, if believed, would maintain it. If there is a conflict of testimony, and still evidence has been put in which covers the whole case, so far that, if believed, it would warrant a verdict, the court above must respect the finding, whether it is, or not, such as
would have been made by the appellate court if it had power to weigh the evidence. [Welch v Bagg, 12 Mich 41, 45 (1863).]
In other words, “[i]f the alleged error is a total want of evidence to prove some fact necessary to sustain the judgment, the Court will look into the testimony to see whether there was such evidence or not. If there was, it will not weigh it, or inquire into its sufficiency, but affirm the judgment.” Berry, supra at 15. Even a major opinion cited by the lead opinion states that “the appellate court does so [examine the evidence] not to determine whether the probabilities preponderate one way or the other . . . .” Jackson v People, 9 Mich 111, 120 (1860). Often referred to as the “any competent evidence” standard or the “scintilla” rule, “[t]he writ of certiorari is for review of errors of law and our inquiry is limited to determining ‘if the inferior tribunal, upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law.‘” Genesee Prosecutor, supra at 681, quoting In re Fredericks, 285 Mich 262, 267; 280 NW 464 (1938). See also Burton, supra at 144. This understanding of the writ is well established and has been unquestioned for almost a century and a half of jurisprudence.1
The lead opinion contends that such review meets the requirements of the
The cross-fire of debate at the Constitutional Convention imports meaning to the “substantial evidence” standard in Michigan jurisprudence. What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record—that is, both sides of the record—not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative ex-
pertise and not invade the province of exclusive administrative fact-finding by displacing an agency‘s choice between two reasonably differing views. Cognizant of these concerns, the courts must walk the tightrope of duty which requires judges to provide the prescribed meaningful review. [MERC v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974).]2
While not an examination de novo, the substantial evidence standard involves more stringent review than the scintilla rule or any evidence standard of the writ of certiorari.
Nevertheless, as the lead opinion and dissent note, this Court has on occasion referred to the standard to be applied during a writ of certiorari as a “substantial evidence” standard. See, e.g., Detroit Public Welfare Comm v Detroit Civil Service Comm, 289 Mich 101, 108; 286 NW 173 (1939); Schubert v Dearborn Civil Service Bd, 311 Mich 553, 561; 19 NW2d 96 (1945); O‘Dell v Flint Civil Service Comm, 328 Mich 631, 636-637; 44 NW2d 157 (1950). These cases, however, in practice utilize the scintilla rule. In Detroit Welfare Comm, supra at 106-107, for example, the Court noted that “[c]ertiorari is an appropriate remedy to get rid of a void judgment, one which there is no evidence to sustain.”3 Similarly, Schubert explained that “[o]n certiorari this court may not review questions of fact. It is not at liberty to determine disputed facts, nor to review the weight of the evidence.” Id. at 561, quoting Carroll v Grand Rapids City Comm, 266 Mich 123, 125; 253 NW 240 (1934) (citations omitted).4
The lead opinion and dissent rely upon such cases to argue that the “substantial evidence” standard has been historically utilized by the writ of certiorari, but the standard, at best, was simply mislabeled “substantial.” Regardless of its labeling, the substantial evidence test formulated by
The substantial evidence standard envisioned by the framers and ratifiers of
The lead opinion, however, also notes that this Court found in State Bar Grievance Administrator v Estes, 390 Mich 585, 592; 212 NW2d 903 (1973), that “[r]eview in the nature of certiorari meets” the constitutional standard of
As the author of the lead opinion has previously explained, limiting the review on certiorari to “errors of law and . . . whether the inferior tribunal, upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law,” is essential because
[a]n appeal and a writ of superintending control are, functionally and conceptually, different. An appeal is primarily a device for correcting legal error which occurs in the course of litigation. A writ of superintending control, on the other hand, is “designed to correct errors so gross as to be almost foreign to the judicial system.” Note, Supervisory and advisory mandamus under the all writs act, 86 Harv LR 595, 626 (1973). The former
primarily protects the interests of the particular litigants as the final stage of the process through which justice is achieved. The latter serves the interests of the judicial system as a whole as a device for protecting the system‘s integrity and furthering its efficiency. Id., 626-627.3
[Burton, supra at 146, 149-150 (BOYLE, J., concurring). Citation omitted.]
Thus, “it is appropriate to prevent expansion of the use of superintending control as a substitute for appeal.” Id. at 147-148. Yet, the lead opinion does just that by elevating the scrutiny under the writ to the standard of
II
A proper construction of the Michigan Constitution reveals that
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.
The purpose of constitutional construction is to
Hence, phrases such as “due process,” “ex post facto law,” and “free exercise of religion” convey a long historical tradition of content and meaning. In the instant case, however, the phrase “existing under the constitution or by law” is not a “successor[] of the great charters of English liberty,” nor does it appear to have a “well-understood meaning.” Hence, this Court must examine the phrase by utilizing its natural and ordinary meaning, with reference to its purpose and the
A
Defendant does not dispute that it is an administrative agency “existing under the constitution or by law” that exercises at least quasi-judicial powers that affect private rights. See, e.g., Martin v Wayne Co Civil Service Comm, 16 Mich App 536, 539; 168 NW2d 419 (1969); Justewicz v Hamtramck Civil Service Comm, 65 Mich App 555, 559-560; 237 NW2d 555 (1975); Choike v Detroit, 94 Mich App 703, 707-708; 290 NW2d 58 (1980) (applying
Defendant, however, suggests that because the sole mode of review of the agency in question is by the extraordinary writ of superintending control,
Certainly, it seems to me it would be shocking indeed to tell a man that his neighbor, who can appeal to a court if he is fined $10 in a traffic matter, may not appeal to the court if his very job is taken away from him by some administrative agency. This would be a fundamental error in not protecting one of the most important rights that all of us have. [1 Official Record, supra, p 1451 (comments of Everett).]
See also 1 Official Record, supra, p 1450 (comments of Leibrand) (“Delegate Ford speaks of the revocation of licenses and privileges and how we shouldn‘t interfere with them, how it is not necessary for court protection. Let‘s put that on a more personal basis. That plumber‘s license is his livelihood, the way he feeds himself and his family. That insurance man‘s license is his livelihood. And I feel that no man should be deprived of his livelihood without the opportunity for judicial review.” Id.); 2 Official Record, supra, p 2716 (comments of Everett) (“when it comes to liquor licenses and things like this, [t]here is also the livelihood of the individual involved. It seems to me that he is just as much entitled to review in court of this very drastic decision which may cost him his livelihood, not only his license temporarily, but possibly permanently“); id. (comments of G. E. Brown) (“if we can provide judicial review for $100 cases and other cases of this nature, it certainly isn‘t going too far to permit the judicial review of the very means by which a man makes his livelihood“).
Thus, the provision was intended to encompass the widest possible breadth of administrative agencies, and especially grant to those whose livelihoods were affected by the agencies significant judicial review.
Yet, the constitution mandates only that direct review be provided by law and the substantial evidence standard apply to such review. The Legislature has provided review through the superintending writ,11 which standard of review then becomes constitutionally modified by
Furthermore, even if the Legislature failed to provide any form of review, the circuit court would be forced to craft such a reviewing mechanism. The constitutional language is unambiguous: “All final decisions . . . of any . . . agency . . . shall be subject to direct review . . . .”
Furthermore, the historical circumstances surrounding the adoption of the provision support the application of the substantial evidence standard. At the time of the framing and adoption of the 1963 Constitution, Michigan‘s citizens confronted a monolithic, unwieldy, and confusing state bureaucracy affecting nearly every aspect of their lives.12 Unimagined by the Founding Fathers and the drafters of prior Michigan Constitutions, the rise of the modern bureaucratic state vested often insular and unaccountable administrative agencies with substantial control over the day-to-day lives of Michigan‘s citizenry.13 At the time of the 1961 Constitutional Convention, there existed at least “125 to 150 boards, bureaus and commissions, with
The novel provision enacted revolutionary changes in the operations of state government.15 Delegate Krolikowski, chairman of the committee from which the provision was originally drafted, explained the specific origin of the provision at the time of its introduction to the convention:
Since the adoption of our present constitution in 1908, the field of administrative law has been expanded to a point where today it occupies a position of prominent importance in the jurisprudence of our state. The committee proposal strikes at an area that is presently covered in the main by statutory law and case law. In the opinion of the
committee a constitutional provision is necessary in order to assure a judicial review of administrative agencies and appended thereto a minimal scope of review. [1 Official Record, supra, p 1443.]16
Other delegates noted that administrative “abuse” occurred and that “it has thereby become necessary to protect the people in their right of appeal and their right to be heard in another branch of the government, namely, the judicial branch, on matters affecting their person, their property or their business.” Id., p 1444 (comments of Iverson).17 The purpose of the provision, therefore, was to “grant the citizens of this state a right of review of a determination by an administrative body,” id., p 1467, and to “negate the possibility of conclusive findings of fact on the part of an admin-
A delegate has noted “the extreme breadth of applicability of this provision . . . .” Nord, The Michigan Constitution of 1963, 10 Wayne L R 309, 344 (1964). Indeed, delegates, while debating the provision discussed, inter alia, the workers’ compensation system,19 taxing authority,20 ratemaking authorities,21 state civil service commission,22 public service commission,23 employment security commission,24 and the department of revenue.25 Delegates also discussed many licensing boards, including those dealing with alcohol,26 insurance,27 real estate,28 truckers,29 drivers,30 and plumbers.31 The clear “aim[]” of the provision was “to impose upon all administrative agencies a uniform scope of review . . . .” 1 Official Record, supra, p 1441 (comments of Krolikowski).
Contrary to defendant‘s assertion, ensuring judicial review of the actions of administrative agencies that affect the rights of Michigan citizens was the very intent of the convention. The constitution, therefore, mandates review, but permits the Legislature to implement the details of the appellate process. “The phrase ‘as provided by law’ clearly vests the Legislature with the authority to exert substantial control over the mechanics of how administrative decisions are to be appealed.” McAvoy, supra at 443. Obviously the constitutional convention did not wish to delve into the details of appellate procedure, e.g., venue, the statute of limitations, or the number of days by which an appeal must be filed, but it clearly intended to ensure that some appellate procedure exist. Indeed, the comments of the convention and the Address to the People reveal that the purpose of the provision was to ensure that the substantial evidence standard of review applied to administrative agencies because the Legislature had failed to do so in some instances. The failure of the Legisla-
This is a Court of law, not of whim or preference: our duty is to adhere to the dictates of the constitution regardless of our personal preferences or our disagreement with the policies contained therein.34 In the instant case, the intention of the ratifiers and framers was to guarantee a minimal standard of judicial review for all administrative agencies affecting the rights of Michigan citizens—and we must enforce that intention.35 Defendant‘s
“Constitutions do not change with the varying tides of public opinion and desire; the will of the people therein recorded is the same inflexible law until changed by their own deliberative action; and it cannot be permissible to the courts that in order to aid evasions and circumventions, they shall subject these instruments, which in the main only undertake to lay down broad general principles, to a literal and technical construction, as if they were great public enemies standing in the way of progress, and the duty of every good citizen was to get around their provisions whenever practicable, and give them a damaging thrust whenever convenient. They must construe them as the people did in their adoption, if the means of arriving at that construction are within their power.” [Lockwood, supra at 555, quoting People ex rel Bay City v State Treasurer, 23 Mich 499, 506 (1871).]
GRIFFIN, J., concurred with RILEY, J.
LEVIN, J. (dissenting). The question presented concerns the scope of judicial review of a decision of a municipal civil service commission. I would hold that a decision to discharge a civil service employee after a hearing is subject to judicial
review, pursuant to
I would also hold that the circuit judge did not err in ordering that Marcia Payne be restored to her former position.
A
The Board of Civil Service Commissioners of the City of Muskegon sustained the discharge of Marcia Payne from her employment as an administrative secretary in the Civil Service Department.
Payne filed a complaint for superintending control, naming the board as defendant. The circuit judge found that the decision of the board was “not supported by competent, material and substantial evidence from a review of this whole record,” that there was “not that quantum of evidence in this record that would warrant discharge,” and ordered that the board determine “what discipline, if any, less than discharge, is reasonable under the circumstances pursuant to” the board‘s rules and regulations.2
B
I would hold that
—A municipal civil service commission is an administrative “agency existing under the constitution or by law,” that its “final decisions, findings, rulings and orders” are “judicial or quasi-judicial and affect private rights or licenses” within the meaning of
—As provided in the constitution,6 such re
I therefore conclude that the circuit court did not err in reviewing the decision of the Muskegon Board of Civil Service Commissioners to determine whether there was competent, material, and substantial evidence on the whole record to support the decision to discharge Payne, and not solely to determine whether there was any competent evidence to support the decision.8
I also conclude that the circuit court did not err in determining that there was not sufficient evidence to justify the decision discharging Payne,
I would reverse the decision of the Court of Appeals and reinstate the judgment entered by the circuit court.
I
The Court of Appeals observed correctly that a writ of superintending control is the means by which a circuit court exercises its power of judicial review of a decision of an administrative tribunal where an appeal is not specifically provided for by statute.9
The Court of Appeals erred, however, in concluding that, because superintending control replaces certiorari, and issuance of a writ of superintending control may be extraordinary, judicial review is always limited to questions of law10 and, hence, to a determination whether there is any competent evidence to support a finding of fact.
As set forth in the lead opinion, there are a number of decisions of this Court, preceding the adoption of the 1963 Constitution, reviewing factual determinations of a municipal civil service commission. The review by this Court was not solely to determine whether there was any competent evidence to support the decision, but rather
Now, however, for reasons about to be stated, the constitutional standard, “competent, material and substantial evidence on the whole record,” is applicable to judicial review of a decision discharging a civil service employee following a hearing required by the rules and regulations of the civil service commission.
II
The board contends that the constitutional standard applies only to state administrative agencies, not municipal administrative agencies. It is urged that an administrative agency does not “exist under the constitution or by law” unless the administrative agency is created by the constitution or by an act of the Legislature. I would not read the words “existing under the constitution or by law” so narrowly.12
I would hold that an agency “exists under the constitution or by law” at least where the constitution or an act of the Legislature provides for a governmental function to be discharged by the agency, and that the constitutional standard governs judicial review where there are provisions for a hearing respecting the exercise of the governmental function and for decisions, findings, rulings, or orders following the hearing that are judicial or quasi-judicial and affect private rights or licenses.
A
In the instant case, both the constitution and an act of the Legislature authorize local units of government to provide for a merit or civil service system for their employees. The constitution provides that the governing body of a city or of other local governmental units may establish, modify or discontinue a merit system for its employees.13 The Home Rule Act provides that a home rule city may in its charter provide for a system of civil service for its employees.14
It is therefore clear that administering a municipal civil service commission is a governmental function authorized and provided for by both the constitution and by law, and that a local civil service commission is an “agency existing under the constitution or by law” within the meaning of
B
In stating in the constitution that the governing body of a local unit of government may, by ordinance or resolution, establish, modify or discontinue a merit system, the framers of the constitution indicated that the details of the system were to be spelled out by ordinance or resolution. Similarly, in stating that the charter of a city may provide for a system of civil service, the Legislature indicated that the details of the system were to be spelled out in the charter or pursuant to its provisions. The framers of the constitution and the Legislature thereby indicated that local units of government were authorized to provide for the particular terms and provisions of their merit or civil service systems. An agency created and acting under rules and regulations adopted pursuant to such a delegation of authority is an agency “existing under the constitution or by law.”
The City of Muskegon, in establishing a civil service system and rules and regulations therefor pursuant to the delegation of authority set forth in the constitution and in the Home Rule Act, acted
The Muskegon civil service rules and regulations provide for a hearing when an employee appeals from a decision discharging the employee from employment by the city. The decision of the Muskegon Board of Civil Service Commissioners sustaining the disciplinary action against Payne is a quasi-judicial decision affecting her “private” rights under the Muskegon civil service system.16
C
The question whether an appeal by a local governmental employee from a decision of a civil service commission would be subject to judicial review in accordance with the “competent, material and substantial evidence” standard arose at the Constitutional Convention. Speaking for the
III
I turn to a consideration of whether the decision to discharge Payne was supported by competent, material and substantial evidence.
A
The board‘s rules and regulations provide that there are three groups of offenses. Group one includes the least severe offenses, such as habitual tardiness, unexcused absences, abusive coffee breaks. Group one also includes as an offense “[f]aulty work.” An employee who commits one group-one offense may receive a warning. An employee who commits repeated group-one offenses is not subject to discharge until the fifth offense.
Group two concerns the next most severe offenses, such as injurious or dangerous pranks, fighting on the premises, and wilful destruction of city property. An employee who commits a single group-two offense is subject to a three-day suspension without pay. A repeated group-two offender is not subject to discharge until the third offense.
Group three includes the most serious transgressions, such as violations of the Civil Rights Act, knowingly falsifying records, consumption of alcoholic beverages on the job. Group three also includes the offense of failing to perform work duties completely and efficiently after receiving a warn
The rules and regulations provide that the board may treat a group-three offense as a group-two or a group-one offense, and may treat a group-two offense as a group-one offense. The board could thus have treated Payne‘s failure to perform her duties as a group-one or a group-two offense.
B
Payne received a letter of reprimand in early June, 1989, concerning her failure to record certain information and her failure to keep secure a number of employment applications. Seven days later, she received a review with ratings ranging from acceptable to outstanding in eighteen of twenty areas of job performance.18
Payne was discharged July 17 because she had not rectified the deficiency in recording information and had again left employment applications unsecured on her desk.
Truman Forest‘s belief that Payne had again left applications unsecured on her desk was mistaken. Another employee had left the applications on Payne‘s desk after she had left on vacation. Forest refused to provide Payne an opportunity to show that another employee had left the applica
While Payne‘s failure to update the department‘s records may have justified some disciplinary response, I agree with the circuit judge that there was not competent, material and substantial evidence on the whole record justifying dismissal. Updating the department‘s records was an important task, but Payne‘s failure was not tantamount to a group-three offense, such as violation of the Civil Rights Act, stealing city property, or drinking on the job.
Payne was on vacation for the two-week period preceding her discharge on July 17. Thus, less than a month intervened between the warning in early June and the date she left on vacation. The record shows that there were a number of tasks that were given to her to perform in that approximately four-week period and that she in good faith thought that they had a higher priority.
C
The lead opinion holds that the penalty assessed by the board is “not subject to substantial evidence review,” stating that “[t]he determination of the appropriate penalty did not involve any questions of fact because the commission‘s rules allow it to terminate the plaintiff under the facts she conceded.”19
The lead opinion‘s holding ignores that the constitutional standard, “competent, material, and substantial evidence on the whole record” applies
The lead opinion adverts to cases in other jurisdictions, including federal cases, but on the central question whether the decision of the Board of Civil Service Commissioners, or only its findings of fact, are subject to judicial review, the Court cites no authority for its conclusion that the decision itself is not subject to judicial review.21
“We have said that we will defer to the judgment of the agency as to the appropriate penalty for employee misconduct, unless its severity appears totally unwarranted in light of such factors as the range of permissible punishment specified by statute or regulation, the disciplined party‘s job level and nature, his record of past performance, the connection between his job and the improper conduct charges, and the strength of the proof that the conduct occurred.” [Id., p 888.]
The court said that although substantial evidence supported the determination that Brown had wilfully failed to follow established postal procedures in handling postage-due transactions, and such “misconduct was serious in light of Brown‘s duties at the cash drawer, our analysis of the other factors persuades us that Brown‘s termination was too harsh, particularly given that the USPS could
D
In three cases decided after the adoption of the 1963 Constitution, this Court, without referring to
In Fannon v Southfield, 405 Mich 558; 275 NW2d 256 (1979), the Southfield Civil Service Commission affirmed a decision to discharge Fannon for violating five of the city‘s civil service rules. The circuit court and the Court of Appeals affirmed. This Court reversed.
This Court first dismissed four of the five charges against Fannon. The Court, however, sustained the commission‘s finding “of Fannon‘s culpability for failing to directly answer questions as to the release of” a list of names. Id. at 561-562. The commission‘s rules provided that this offense was one punishable by discharge.25 Nonetheless this Court held that “[d]ischarge was manifestly an excessive and arbitrary discipline unjustified on this record.” Id., p 560. The Court remanded the case to the Southfield Civil Service Commission so that the commission could “reconsider Fannon‘s punishment. . . .” Id. at 562.
Thus, in a similar case commenced by filing a complaint seeking a writ of superintending control from the decision of a local civil service commission, this Court made an evaluation of the fairness of the punishment, although the Court accepted that Fannon had committed a violation for which discharge was a permissible sanction.
Similarly, in Konyha v Mt Clemens Civil Service Comm, 393 Mich 422; 224 NW2d 833 (1975), this Court reversed the decision of a civil service commission that a firefighter should be discharged for sleeping through roll call. The Court said:
One can appreciate the chief‘s concern that an oversleeping firefighter, causing even the slightest delay in an emergency situation, may jeopardize the safety of the community and of his fellow officers. It does not follow, however, that Konyha‘s failure to be present at this routine roll call impaired the safety of anyone or is sufficiently indicative of potential impairment of safety to justify this extreme punishment. [Id. at 431.]
The Court remanded the case to the Mt. Clemens Civil Service Commission “to determine a proper period of suspension for” this offense. Id.26 And in Brown v Dep‘t of State Police, 392 Mich 811 (1974), this Court reversed a decision of the Court of Appeals and set aside an order of the State Civil Service Commission sustaining the discharge of a trooper for failing to follow rules and regulations because “[d]ischarge was manifestly an excessive and arbitrary discipline unjustified on this record.”
I would reverse the decision of the Court of Appeals, and reinstate the judgment entered by the circuit court.
MALLETT, J., concurred with LEVIN, J.
Notes
See also Midland Twp v State Boundary Comm, 401 Mich 641, 672-673; 259 NW2d 326 (1977). The circuit court also awarded Payne back pay. The amount of the back pay is to be reduced to reflect any discipline less than discharge imposed on remand.The following, by way of example only and not as an exclusive list, are declared to be causes for disciplinary action or removal from the classified service of the City of Muskegon. Disciplinary action shall be imposed with respect to each of the groups of offenses listed:
Group 3 Offenses
* * *
i) After warning, incompetence, failure to perform work or duties completely and efficiently, or failure or inability to do the work fixed by the work standard in force.
The disciplinary action in this group shall be grounds for immediate discharge.
The Legislature has not provided for judicial review of a decision of a municipal agency such as the Muskegon Civil Service Commission.
For as the constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. [Cooley, supra at 143.]
Hence, the language of the constitution provision should be interpreted by its “natural and ordinary meaning.” Id. at 130. Thus, “[n]arrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government.” Id. at 131-132.
Nevertheless,
See n 1 for text.it must not be forgotten, in construing our constitutions, that in many particulars they are but the legitimate successors of the great charters of English liberty, whose provisions declaratory of the rights of the subject have acquired a well-understood meaning, which the people must be supposed to have had in view in adopting them. We cannot understand these provisions unless we understand their history, and when we find them expressed in technical words, and words of art, we must suppose these words to be employed in their technical sense. [Id. at 132.]
[T]here is no way to correct this section and avoid the inevitable effect of placing in the path of all administrative boards, bodies and agencies—whether they be at the local government level or the state level—a roadblock that will make it practically impossible to utilize the field of administrative law in this state to its best advantage. [2 Official Record, Constitutional Convention 1961, p 2713.]
See also 1 Official Record, Constitutional Convention 1961, p 1441 (comment of Ford) (noting that the provision would apply to an “appeal from the suspension of a policeman under the civil service statute or charter provision“); id., p 1448 (“[the provision] says that evidence has to fairly support the finding of fact made by the administrative body or agency—for example, a civil service commission“); id., p 1464 (noting that provision would apply to license applications “from every municipality in this state and every county in the state“).
Delegate Martin also expressed his understanding that the provision would apply to “various municipalities.” 2 Official Record, supra, p 2718. Similarly, Delegate Nord, opposing the measure, concluded that with the provision “it seems clear to me that we open the door for every single case, every determination by any administrative board, to be subjected to a review.” 1 Official Record, supra, p 1468.
The Court added that the “circuit court should guard against substituting its judgment of the facts for that which was made by the board.” Id.
In Schubert v Dearborn Civil Service Bd, 311 Mich 553, 561; 19 NW2d 96 (1945), this Court said: “The only question requiring determination on this appeal is whether or not there was competent and substantial testimony supporting the finding of the civil service board.”
In O‘Dell v Flint Civil Service Comm, 328 Mich 631, 636; 44 NW2d 157 (1950), this Court said: “It is the rule that on review by the circuit court on writ of certiorari from a civil service commission the function of the court is to consider whether or not there is substantial evidence to support the finding of the civil service commission.”
the chief‘s discharge of Konyha was predicated not only on this particular missed roll call and the earlier infraction, but rather was motivated by a general dissatisfaction-not charged-with Konyha‘s performance.These other charges, however, were not brought within ninety days of the date of violation, contrary to
Governmental decisions that can be made without a hearing are
By ordinance or resolution of its governing body which shall not take effect until approved by a majority of the electors voting thereon, unless otherwise provided by charter, each county, township, city, village, school district and other governmental unit or authority may establish, modify or discontinue a merit system for its employees other than teachers under contract or tenure. The state civil service commission may on request furnish technical services to any such unit on a reimbursable basis.
* * *
(h) For a system of civil service for city employees, including
The Court has also said that the standard set forth in
This Court has indicated that a decision or finding is “judicial or quasi-judicial in nature” if there was a hearing and the decision-maker engaged in factfinding. People ex rel Clardy v Balch, 268 Mich 196, 200; 255 NW 762 (1934); Talbert v Muskegon Construction Co, 305 Mich 345, 348; 9 NW2d 572 (1943); Viculin v Dep‘t of Civil Service, 386 Mich 375; 192 NW2d 449 (1971).[I]n 1908 administrative agencies were virtually unknown in the state of Michigan. They were very rarely used in the federal government. Since that time we have had a tremendous growth in the use of administrative agencies and they perform a valuable function but they have cut themselves so far afield from what we know as the judicial determination of rights that they now are virtually a separate form of government all by themselves.
This amendment does not bring them back totally into the field of the proper determination of rights as we traditionally look at it. It only says this: whoever hears this case . . . cannot issue a binding order unless that order is supported by competent evidence. [2 Official Record, supra, p 3135 (comments of Everett).]
Chairman Van Dusen: Mr. Krolikowski.
Mr. Krolikowski: Yes, I think they would. First of all, this language will negate the possibility of conclusive findings of fact on the part of an administrative agency.
Mr. Ford: I just sent for a volume of the reports, but I find a headnote here indicating that our court has in the past held that a legislative attempt to create such a rule was violative of the constitution and it seems to indicate that it is a violation of the separation of powers because of the fact that the court is substituting its discretion for that of an administrative body. Was this question gone into at all when your subcommittee was working on this?
Mr. Krolikowski: I think that there is a line of judicial
You came to this office with very fine skills in dealing with the department‘s clients. You are helpful and cheerful at all times when dealing with those who seek assistance or direction.
You‘ve been eager to develop your computer skills and have given of your own time to attend computer classes which is greatly appreciated. . . .
You have been quick to grasp the overall “flow” of the operation except in two very important areas [the filing of employment applications and accuracy in typing, etc.]. . . .
Neither NLRB v Curtin Matheson Scientific nor Deering are in point. In NLRB v Curtin Matheson Scientific, the United States Supreme Court held that the NLRB acted within its discretion in refusing to presume that striker replacements oppose the union. In so holding, the Court reviewed the reasonableness of the board‘s conclusion. It did not say or hold that the board‘s decision was beyond judicial review. Justice Marshall‘s opinion was joined by Chief Justice Rehnquist and Justices Brennan, White, and Stevens. The Chief Justice wrote a separate concurring opinion. Justice Blackmun dissented, and Justice Scalia, joined by Justices O‘Connor and Kennedy, also dissented. The care with which the majority and dissenters reviewed the reasonableness of the board‘s decision stands in stark contrast to the majority‘s ipsi dixit that the “determination of the appropriate penalty” is not subject to judicial review.The determination of the appropriate penalty did not involve any questions of fact because the commission‘s rules allow it to terminate the plaintiff under the facts she conceded. Consequently, this determination is not subject to substantial evidence review. Cf. NLRB v Curtin Matheson Scientific, Inc, 494 US 775, 778, n 2; 110 S Ct 1542; 108 L Ed 2d 801 (1990) (substantial evidence review applies only to evidentiary questions); Deering v Unionville-Sebewaing Area Schools, 97 Mich App 629, 631; 296 NW2d 131 (1980) (factual findings must be supported by substantial evidence). [Ante, pp 696-697.]
In Deering, the issue addressed in the opinion of the Court was whether there was competent, material, and substantial evidence on the record considered as a whole to support the MERC‘s determination that Deering‘s discharge was not related to or precipitated by his efforts at organizing his co-workers to obtain higher wages and increased benefits. The Court found that there was adequate evidence that Deering was discharged for other reasons. The question whether a lesser discipline should have been imposed by Deering‘s employer was not addressed in this appeal from the MERC‘s decision, finding that his employer had not engaged in an unfair labor practice in discharging him for a protected activity.
The federal statute,
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence . . . .”
Brown argued, and the Ninth Circuit agreed, that the “agency abused its discretion because the punishment imposed was disproportionate to his alleged offense.” Brown, supra, p 888.
Professor Kenneth Culp Davis observed that the federal courts often apply both the substantial evidence and arbitrary and capricious standards without discernible differentiation. 5 Davis, Administrative Law (2d ed), § 29:7, pp 356-363.
The United States Court of Appeals for the District of Columbia Circuit said that this Court has embraced the “emerging consensus of the Courts of Appeals that the distinction between the arbitrary and capricious standard and substantial evidence review is largely semantic . . . .” Pacific Legal Foundation v Dep‘t of Transportation, 193 US App DC 184, 189, n 35; 593 F2d 1338 (1979). But the Fifth Circuit observed that the substantial evidence standard is more rigorous than the arbitrary and capricious standard. Corrosion Proof Fittings v EPA, 947 F2d 1201, 1213-1214 (CA 5, 1991).
The somewhat differing judicial views concerning how closely appellate courts should review agency action under the substantial evidence/arbitrary and capricious standards underscores that both standards concern the level, and not the subject, of review. The federal statute, like
The tenure of everyone holding office, place, position or employment in the City‘s service shall be only during good behavior . . . and any such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges for . . . violation of the provisions of the rules of the Civil Service Commission, of the City Charter . . . . [Id., p 560.]
Konyha‘s offense of sleeping through roll call was “cause” for discipline. Although the commission had “cause” to discipline Konyha, this Court nevertheless reviewed the record to determine whether discharge was justified.[a] written statement of charges and the reasons for the disciplinary action must be furnished. The appointing/removing authority bears the burden of justifying its action. [Id. at 428.]