Mayor Not Required To Follow Personnel Board’s Recommendation To Reinstate ‘Texting’ Lieutenant

Plaintiff Timothy A. LaVigne was a lieutenant in the City of Norton Shores, Michigan Police Department. As a commanding officer, LaVigne was not a member of a collective bargaining unit.

Between July and September of 2010, LaVigne used his City cellular phone to send and receive a total of 451 text messages with Linda Nanna, the wife of a subordinate officer. It is undisputed that the some of these text messages were sexual or flirtatious in nature. LaVigne maintained that no physical relationship developed between himself and Mrs. Nanna.

Upon discovery of the extensive texting, Officer Tony Nanna presented phone records to Police Chief Daniel Shaw. Chief Shaw conducted an investigation on the texting. Eventually the City Administrator terminated LaVigne.

LaVigne appealed the decision to the City’s Personnel Board. The Personnel Board had never before convened to hear an employee’s grievance or otherwise make disciplinary recommendations. The panel ultimately reached the conclusion that, although LaVigne had seriously violated the trust of other officers, termination was an excessive punishment, and recommended that LaVigne be reinstated without pay reimbursement and at a lower, non-supervisory position.

The Personnel Board’s recommendations were sent to the City’s Mayor, who decided to terminate LaVigne, and elected not to follow the Personnel Board’s recommendation to reinstate LaVigne at a lower, non-supervisory position. La Vigne then sued, contending that the failure to follow the Board’s recommendations was a due process violation.

A federal court upheld LaVigne’s termination. The Court found that “taking the City ordinances and charter together, it becomes clear that the Personnel Board’s function is advisory. In other words, the final appeal of an employment is made to the Personnel Board, but the Board’s role is then to prepare a recommendation for the Mayor, who has the authority to make a final decision. Under this reading, the City ordinances and the City charter do not conflict.

“LaVigne argues that the Charter supports his position, as it only empowers the Mayor to modify disciplinary action based upon the recommendation of the Personnel Board. However, the Charter clearly vests the right and power to modify such disciplinary actions in the Mayor, not the Personnel Board. Although the Mayor is directed to make decisions based upon the recommendation of the board, if the Mayor were required to follow the Board’s findings, then those findings would not be recommendations, and it would make little sense for the charter to empower the Mayor rather the than directly grant power to the Board.”

LaVigne v. City of Norton Shores, 2012 WL 611934 (W.D. Mich. 2012).