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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION April 4, 2017

9:05 a.m.

v No. 333590 Wayne Circuit Court ANTHONY PARLOVECCHIO, LC No. 15-008982-01-AR

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and M URPHY and R ONAYNE K RAUSE , JJ.

P ER C URIAM

.

Defendant appeals by leave grante d the circuit court’s reversa l of the district court decision granting defendant’s motio n to dismiss a grand jury in dictment. We reverse.

Defendant, as the president of Parlovecchio Building Company, Inc, entered into an agreement with the Wayne County Building Authority (“WCBA”), to act as project manager or “Owner’s Representative” (“OR”) for the Wayne County Jail Proje ct (“Project”). The Project was never completed, and a number of individuals, including def endant, were indicted for various roles they played in the failure of the project. Defen dant’s indictment for willful neglect of duty as a public employee or person holding public trust und er MCL 750.478 stated that he “did willfully neglect to perform the duty to fully and honestl y inform a legislative body, to wit: the Wayne County Building Authority, a duty enjoined upon him b y State law and/or the Wayne County Charter and/or Wayne Count y Ordinances . . . ” The indi ctment contained no other specifics.

Defendant argued in the district court that he was neither a p ublic officer nor an employee, but rather an independe nt contractor, and therefore c ould not be subject to MCL 750.478; he also argued that the indictment insufficiently spec ified what criminal actions he “actually did,” and he requested a bill of particulars. The di strict court agreed with defendant’s first proposition and dismissed the indictment. On appeal, the circuit court reversed and reinstated the indictment, holdi ng that the statute could apply to independent contractors, because independent contractors could hol d a position of public trust. We granted defendant’s delayed application for leave to appeal. The circuit court reviews a d istrict court’s decision to dismiss charges for an abuse of discretion, and we review the circuit c ourt’s determination on such a
matter de novo. People v Bylsma , 493 Mich 17, 26; 825 NW2d 543 (2012). We likewise review de novo questions of statutory interpretation, including the co nstitutionality of statutes. People v-2- Buehler , 477 Mich 18, 23; 727 NW2d 127 (2007); People v Douglas , 295 Mich App 129, 134; 813 NW2d 337 (2011).

In People v Waterstone , 296 Mich App 121, 131-132; 818 NW2d 432 (2012), this Court recited the governing standards of review and the controlling p rinciples of statutory construction:

This Court reviews for an abuse of discretion both a district c ourt's decision to
bind a defendant over for trial and a trial court's decision on a motion to quash an
information. A trial court abuses its discretion when its deci sion falls outside the range of reasonable and principl ed outcomes. A trial court nec essarily abuses its
discretion when it makes an error of law. This Court reviews d e novo questions of statutory construction.

[The] Michigan Supreme Court [h as] recited the well-establishe d principles that govern our interp retation of a statute[, statin g as follows]:

“The overriding goal of statuto ry interpretation is to ascerta in and give effect to the Legislature's intent. The touchstone of legislat ive intent is the statute's language. The words o f a statute provide the most re liable indicator of the Legislature's intent and shoul d be interpreted on the basis of their ordinary meaning and the overall context in which they are used. An und efined statutory word or phrase must be accorded its plain and ordinary meaning, unless the undefined word or phrase is a “term of art” with a unique legal meaning.” [Citations and quotation marks omitted.]

The parties dispute the construction of various terms employed in MCL 750.478, which provides:

When any duty is or shall be enjoined by law upon any public officer, or upon any person holding any public trust or employment, every w illful neglect to perform such duty, where no special provision shall have been m ade for the punishment of such delinquency, constitutes a misdemeanor punis hable by imprisonment for not more than 1 year or a fine of not more tha n $1,000.00. [Emphasis added.]

For a conviction under this statute, the prosecution must estab lish (1) that the defendant was a public officer or “any person holding any public trust or emplo yment,” (2) that the defendant had a duty that is “enjoined by law,” and (3) that the defendant wi llfully neglected to perform such duty. MCL 750.478; People v Medlyn , 215 Mich App 338, 340-341; 544 NW2d 759 (1996).

It is undisputed that defendant is not a “public officer,” and we agree with the district
court that defendant is an inde pendent contractor rather than a public employee. Plaintiff offers at most a vague argument to the contrary, and we reject that ar gument as advocating the-3- complete dissolution of any distinction whatsoever between an e mployee and a contractor. 1 The district court properly utilized the “economic reality” test, s ee Buckley v Professional Plaza Clinic Corp , 281 Mich App 224, 233-236; 761 NW2d 284 (2008), and determine d, based on several provisions of defendant’s contract with WCBA, that defe ndant was not a “person holding any public . . . employment” under th e plain language of MCL 75 0.478.

The term “public trust” is not defined in the statute or elsew here in the Michigan Penal Code and it is simply not necessa ry for us to address the issue of whether defendant was a person holding a public trust.

We instead focus on the question concerning whether he had a d uty “enjoined by law” to communicate the pertinent financia l information and situation t o the county. In the context of this case, interpretation of MCL 750.478 and the phrase “enjoin ed by law” requires examination of how broadly or narrowly to construe the word “law.” The pro secution’s argument on appeal is ultimately premised solely on the underlying contract with r espect to the establishment of a duty. Essentially, the prosecution is contending that defendan t’s duty, for purposes of MCL 750.478, arose under the law of contracts. We conclude that th e prosecution’s construction is much too broad, improperly exposin g private contractors on gove rnmental projects to criminal liability solely on the basis of breach of contract.

We believe that an analogy can be made to the law of mandamus. A writ of mandamus can only be issued if a governmental employee or entity “had a clear legal duty to perform the [requested] act.” Casco Twp v Secretary of State , 472 Mich 566, 577; 701 NW2d 102 (2005). And the legal duty cannot rest solely on a contractual obligati on. Garner v Mich State Univ , 185 Mich App 750, 763; 462 NW2d 832 (1990) (“Where the right or dut y sought to be enforced rests wholly on contract, mandamus cannot issue to enforce it[.]”); Warber v Moore , 126 Mich App 770, 776; 337 NW2d 918 (1983) (“mandamus should not be availabl e to compel public officers to perform a duty assumed by contract”); Bd of Co Rd Comm ’ rs of the Co of Oakland v State Hwy Comm , 79 Mich App 505, 512; 261 NW2d 329 (1977) (“We note first tha t mandamus will not be granted to compel public officers to perform a duty assu med by contract, unless mandated by statute.”). Indeed, in Waterman-Waterbury Co v Sch Dist No 4 of Cato Twp , 183 Mich 168, 174; 150 NW 104 (1914), our Supreme Court observed:

The primary purpose of the writ of mandamus is to enforce duties created by law . It is stated by text-writers, as a general principle, that t he writ is not designed as a remedy for the collection of debts, and will not lie to enforce the private contracts of munici palities. [Emphasis added.]

If a public officer, which is how the prosecution seeks to tre at defendant, cannot be compelled in a mandamus action to perform a duty arising solely out of a contract, as it does not constitute a legal duty or a duty created by law, we fail to se e how that same officer can be held

1 Plaintiff would draw a distinc tion between “holding employment ” and “being an employee”
that we think to be untrue unde r the circumstances.-4- criminally liable under MCL 750.478 for failing to perform the contractual duty. We must distinguish the phrase “enjoined by law” from “enjoined by cont ract.” A “contract” is not the “law.” Rather, a “contract” is enforceable under the law . It is unnecessary to define the full reach or parameters of the word “law,” as used in the phrase “e njoined by law” under MCL 750.478, but only to examine, given the limits of the prosecuti on’s argument relying solely on contract, whether the word “law” encompasses a c ontractual obli gation, which it does not.

The grand jury indictment in this case sets forth only a contr actual duty. At oral argument, the prosecutor repeatedly contended that the only dut y defendant allegedly violated is
his contractual one. As a conse quence, defendant has indisputa bly not been accused of violating any duty that could give rise to criminal liability under MCL 7 50.478. The district court correctly dismissed the indictme nt, and the circuit court erred in reversing.

It is therefore unnecessary for us to address whether the stat ute is unconstitutional or whether the grand jury indictment was insufficiently specific.

In sum, defendant is entitled to dismissal of the charge under MCL 750.478 and by way of this opinion, we dismiss the ch arge against defendant in thi s case.

/s/ Michael J. Kelly /s/ William B. Murphy /s/ Amy Ronayne Krause