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### STATE OF MICHIGAN

COURT OF APPEALS

GEORGE K. TRUCHAN,

Plaintiff-Appellee, UNPUBLISHED November 5, 2015

v No. 323624 Lenawee Circuit Court CHARTER TOWNSHIP OF ADRIAN, JIM KOEHN, and RICHARD L. GERMOND, LC No. 12-004423-CZ

Defendants-Appellants.

GEORGE K. TRUCHAN,

Plaintiff-Appellee,

v No. 323655 Lenawee Circuit Court RICHARD L. GERMOND, LC No. 12-04423-CZ

Defendant-Appellant, and

CHARTER TOWNSHIP OF ADRIAN and JIM KOEHN,

Defendants.

Before: S AWYER , P.J., and K. F. K ELLY and F ORT H OOD , JJ.

P ER C URIAM

. Plaintiff sued the Charter Township of Adrian (Township), Jim Koehn (Koehn), and Richard L. Germond (Germond). Against Koehn and Germond, plain tiff alleged tortious interference with an advantage ous business relationship (Count I), defamation (Count II), injurious falsehood (Count III), and false light/invasion of pr ivacy (Count IV). Against Koehn, Germond, and the Township, plaintiff alleged violations of the Bullard-Plawecki Employment Right to Know Act (ERKA), MCL 423.501 et seq. (Count V).-2- In Docket No. 323624, the Township, Koehn, and Germond, appeal by leave granted an order denying their motion for summary disposition on non-gover nmental immunity grounds. In Docket No. 323655, Germond appeals as of right from that same o rder to the extent the order denied his motion for summary disposition and rejected his clai m that he was entitled to governmental immunity. We reverse.

I. BASIC FACTS AND P ROCEDURAL HISTORY

Plaintiff served multiple roles in Adrian Township. He was fi rst hired in 2002 as the Township Attorney and in 2008 was appointed as police chief and director of public safety. The Public Safety Advisory Committee (PSAC) served to advise the To wnship Board on matters related to police and fire safety. Former Lenawee County Sheri ff Richard Germond served as the PSAC’s chairman. On May 9, 2011, Germond gave Township Sup ervisor Jim Koehn a memo setting forth a variety of concerns Germond had about plai ntiff’s actions. Among the complaints was plaintiff’s behavior at an accident investigatio n scene, plaintiff’s use of foul language with dispatch, plainti ff’s failure to attend police ch ief meetings, plaintiff’s continued use of a township vehicle for his own personal use, and plainti ff’s alleged personal relationship with a reserve officer, Melinda Schwyn.

Plaintiff met with Koehn on May 26, 2011 to discuss Germond’s memo. At the meeting, Koehn and plaintiff agreed that they would meet weekly to discu ss police and fire issues. Both reported that the meeting was amicable.

On May 27, 2011, Germond submitted a copy of his earlier May 9 th memo to the other members of the PSAC and also inc luded another memo with additio nal concerns.

Thereafter, on June 2, 2011, plaintiff submitted a letter of r esignation from his position as director of public safety. A sp ecial meeting of the PSAC was s cheduled for June 4, 2011 but was adjourned after plaintiff did not attend. On June 7, 2011, pla intiff notified Koehn that he had decided to retire as police chief, effective December 31, 2011. On numerous occasions, Koehn asked plaintiff to meet with Koehn and Germond to discuss the c oncerns raised in Germond’s two memos. Plaintiff refused to meet the two men without his o wn witness present, prompting Koehn to fire him. Koehn testified that he fired plaintiff, no t because of the allegations in the memos, but because plaintiff continuously refused to meet. On July 11, 2011 the Township Board voted 6-1 to formally t erminate plaintiff.

In the meantime, on June 30, 2011, a local newspaper – the Daily Telegram – requested an opportunity to review plainti ff’s personnel file under the F reedom of Information Act (FOIA), MCL 15.231 et seq . Germond’s two memos were in the file and were ultimately ref erenced in two separate articles. A July 8, 2011, article was titled “Pol ice chief criticized for conduct, use of car” and a July 9, 2011 article was titled “Truchan fired by Adrian Twp. board.”

Plaintiff then sued the Township, Germond, and Koehn. Against Koehn and Germond, plaintiff alleged tortious inter ference with an advantageous bu siness relationship (Count I), defamation (Count II), injurious falsehood (Count III), and fal se light/invasion of privacy (Count IV). Against Koehn, Germond, and th e Township, plaintiff alleg ed violations of ERKA (Count V)

.-3- All defendants sought to have the complaint dismissed, arguing that they were protected by governmental immunity. They fu rther argued that, along with immunity provided by law, there was a non-governmental basis for summary disposition beca use there were no genuine issues of material fact.

Plaintiff responded that Germond was not entitled to immunity because he had served his two-year term with the PSAC from 2008-2010 and, therefore, did not enjoy the status of a governmental employee. Plaintiff claimed that Germond was not acting within the scope of any authority when Germond admitted that he knew that his position expired in 2010. In addition, plaintiff argued that the townsh ip resolution empowered the PSA C committee to advise the Township, not one individual memb er. Moreover, plaintiff argue d that Germond did not act in good faith but, instead, harbored ill will against plaintiff. Plaintiff maintained that there were questions of fact as to whether Germond acted with the intent t o harm plaintiff. As for the nonimmunity basis for summary disposition, plaintiff argued that t here were questions of fact as to whether Germond knowingly made false statements in his two memo s or at least entertained serious doubts as to their truth and, therefore, acted maliciou sly. Regarding plaintiff’s ERKA claim, plaintiff argued that Germond’s memos alleged that plain tiff committed petty theft of Township property and were the r esult of a disciplinary investi gation.

The trial court ruled that Koehn was entitled to governmental immunity, but concluded that Germond was not similarly entitled to immunity. The trial court further concluded that questions of fact precluded sum mary disposition on defendants’ non-governmental immunity defenses. The trial court denied summary disposition as to pla intiff’s ERKA claim. Defendants now appeal from that ruling. 1

II. STANDARD OF REVIEW

Summary disposition is appropriate when a claim is barred beca use of “immunity granted by law.” MCR 2.116(C)(7). A party may support a motion under MCR 2.116(C)(7) with affidavits, depositions, admissi ons, or other documentary evide nce. Odom v Wayne County , 482 Mich 459, 466; 760 NW2d 217 (2008). “In reviewing a (C)(7) mot ion, a court must accept all well-pleaded allegations as true and construe them in favor of the nonmoving party.” Tellin v Forsyth Twp , 291 Mich App 692, 698; 806 NW2d 359 (2011).

“This Court reviews a trial court’s decision regarding a motio n for summary disposition de novo. A motion for summary disposition under MCR 2.116(C)(1 0) tests the factual sufficiency of a claim. A moti on for summary disposition under MCR 2.116(C)(10) should be granted if the pleadings, affida vits, and other documentary evi dence, when viewed in a light

1 Because the trial court’s order denied Germond’s motion based on its finding that government immunity did not apply, Germond had an appeal of right pursuant to MCR 7.203(A)(1) and MCR 7.202(6)(a)(v). All defendant s filed an application for le ave to appeal, raising nonimmunity issues. We granted defendants’ application and, on ou r own motion, consolidated the two appeals. George K Truchan v Charter Twp of Adrian , unpublished order of the Court of Appeals, entered March 5, 2015 (Docket Nos. 323624 and 323655).-4- most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact.” Gividen v Bristol West Ins Co , 305 Mich App 639, 642; 854 NW2d 200 (2014) (internal citations omitted).

III. GERMOND WAS ENTITLED TO GOVERNMENTAL IMMUNITY

Germond argues that he was entitled to governmental immunity b ecause, as chairman of the PSAC, he was a governmental volunteer or member of a govern mental committee. We
agree.

In Ross v Consumers Power Co (On Rehearing )

, 420 Mich 567; 363 NW2d 641 (1984), our Supreme Court held that governmental immunity for individua ls was provided by the common law. Certain high-level officials were generally absolu tely immune from tort liability, while lower-level officials were immune from tort liability whe n acting within the scope of employment, acting in good faith, and performing discretionary acts. Id . at 633-634. When Ross was decided, the existing vers ion of MCL 691.1407 only protecte d agencies, not individuals. In 1986, the Legislature amended MCL 691.1407. It currently reads , in relevant part, as follows:

(2) Except as otherwise provided in this section, and without regard to the discretionary or ministerial natu re of the conduct in question, each officer and employee of a governmental agency, each volunteer acting on beh alf of a governmental agency, and each member of a board, council, commi ssion, or statutorily created task force of a governmental agency is immu ne from tort liability for an injury to a person or damage to property cause d by the officer, employee, or member while in the course of employment or servic e or caused by the volunteer while acting on behalf of a governmental agency i f all of the following are met:

(a) The officer, employee, member, or volunteer is acting or r easonably believes he or she is acting with in the scope of his or her aut hority.

(b) The governmental agency is engaged in the exercise or disc harge of a governmental function.

(c) The officer’s, employee’s, member’s, or volunteer’s conduc t does not amount to gross negligence that i s the proximate cause of the i njury or damage.

(3) Subsection (2) does not alter the law of intentional torts as it existed before July 7, 1986.

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(5) A judge, a legislator, and the elective or highest appointi ve executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or s he is acting within the scope of his or her judicial, legislative, or executive authority.-5- Accordingly, under the current governmental immunity law for l ower-ranking employees, Odom v Wayne Co , 482 Mich 459, 479-480; 760 NW2d 217 (2008) sets forth the following test:

To summarize and simplify the ap plication of our decision, we provide these steps to follow when a defendant raises the affirmative d efense of individual governmental immunity. The c ourt must do the following:

(1) Determine whether the individual is a judge, a legislator, or the highestranking appointed executive official at any level of government who is entitled to absolute immunity under MCL 691.1407(5).

(2) If the individual is a lowe r-ranking governmental employee or official, determine whether the plainti ff pleaded an intentional or a neg ligent tort.

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(4) If the plaintiff pleaded an intentional tort, determine whe ther the defendant established that he is entitle d to individual gove rnmental immu nity under the Ross test by showing the following:

(a) The acts were undertaken during the course of employment an d the employee was acting, or reasonably believed that he was acting, within t he scope of his authority,

(b) the acts were undertaken in good faith, or were not underta ken with malice, and

(c) the acts were discretiona ry, as opposed to ministerial.

We reject plaintiff’s contention that because Germond’s term t echnically expired he was no longer an active member of the PSAC. At the very least, Ger mond remained a volunteer acting on behalf of the PSAC.

Germond testified that when he was first appointed to the PSAC in 2008, he never looked at the June 2005 enabling resolu tion. He looked at it in 2009 or 2010 “out of curiosity.” The enabling resolution provided that members of the PSAC were appo inted by the Township Supervisor, subject to approval by the Township Board, for a tw o-year term. Importantly, the Township Supervisor would serve as ex-officio member of the PSAC . Germond did not attend the Township Board meetings so “as far as I would have known I may have been reappointed, I didn’t pay any attention to the term on here. . . .[T]he term s were never mentioned and all of the other members on the committee were the same as I had gone on t he committee with in 2008.” Germond was no longer a citizen of the township, but Koehn told him that he consulted the Michigan Township Association an d was told that one person on t he PSAC who was outside of the Township would be acceptable.

Germond acknowledged that the PSAC did not authorize him to co nduct an investigation or write the memos. Nevertheless Koehn (who served as ex-offic io member of the PSAC) told-6- Germond to “express my concerns in writing.” Germond testified that he wrote the memos in his capacity as a member of the PSAC because the issues relayed inf ormation that reliable members of the community had told him. Germond testified that “it wasn ’t my mission to determine accuracy, I was not conducting an investigation. I was passing on information that had been given to me by reliable people.” He added: “I was not quizzin g people nor was I conducting any kind of an investigation. Information was coming to me, I gues s it’s just because I was the chairman of the public safety com mittee, that’s the only thing I can tell you.”

Koehn confirmed that he told Germond to put some of his concer ns in writing so that Koehn “had a record of it” and so he could discuss the concerns with plaintiff. Koehn also confirmed that no one, including Germond, had ever been reappoi nted to the PSAC. The resolution was drafted by plaintiff and the PSAC continued to meet and make recommendations even after its members’ terms ha d expired. In fact, plaintiff admitted that he helped draft the June 13, 2005 resolution that cr eated the PSAC, whose purpose w as to allow a three-member panel to discuss capital expenditu res, advise and attempt to ga in public support for police and fire millages, and make recommendations regarding manpower. In Koehn’s opinion, the PSAC’s advisory function regardin g manpower included when there was “an issue with an individual.” Even plaintiff believed that the Germond letters were the result of Germond investigating and interrogating pe ople “acting as a chairman of the public safety committee.”

That Germond was, or reasonably continued to believe he was, a member of the PSAC was confirmed by those around him. Police clerk Sandra Hoffman testified that she believed some positions in the police department needed more oversight. She noted:

Well, a citizen once talked to me and said if you have a compla int with an officer it’s easy, you know where to go, you go right to the police chi ef, you make your complaint. If you have a complaint with the police chief where do you go and people out there didn’t know whe re to go and, you know, I’d oft en be asked that so I just thought that well . . . there is no policy. I just m entioned I thought maybe we could use some – use a policy.

She approached Germond about it because she believed plaintiff’ s inability to follow orders had become “a public safety issue.” Hoffman denied that Germond ev er approached her for information – “He never asked me anything.”

Township office manager Marie Nelson testified that she and Ho ffman would often talk about township matters. Marie 2 was concerned that things “were not being taken care of” and things “were going on that not normal employees would be doing. ” The use of the township car was especially concerning: “I m ean, it was noticeable to every body but then nobody seemed to do anything about it.” Marie was not “in a position to myself take care of these things.” She identified Germond as the PSAC chairman and brought her concern s to him. “I just remember that one day he came into the office and he said that it didn’t look like they had much to talk

2 We use Marie’s first name because there is another witness, Da ne Nelson, who shares the last

name.-7- about at the public safety mee ting and I said really . . .I sit in the middle of this and you observe everything that’s going on here and it’s like why isn’t there a ny topics for this public safety meeting. So, you know, something needed to be done.” She had raised some concern with Koehn who was not interested.

Although Township Police Officer B rett Gilbert testified that Germond approached him and asked him questions about t hings he had heard in an attempt to “investigate it to try and learn the actual truth,” the fact re mains that individuals brought th ese concerns to Germond’s attention with the knowledge that Germond was chairman of the PSAC. Agai n, Germond wrote the memos at Koehn’s request. Koehn was Township Supervisor and an ex-officio member of the PSAC and entitled to absolute immunity.

Plaintiff argues that even if Germond could be considered an e mployee or volunteer, it was clear that Germond harbored ill will against plaintiff. In support of this contention, plaintiff offers the testimony of Dane Nelson and Terrence Collins.

Dane testified that he never had any issues with plaintiff, bu t “it was clear to me that Mr. Germond really did not care much for Mr. Truchan.” On more tha n one occasion, Germond mentioned:

Something to do with when Mr. Germond was sheriff, and George w as, I believe, a police officer someplace, and I couldn’t even tell you where, but it had to do something with either some communication equipment or radio tha t George had possession of or one of his police officers had possession of, and Mr. Germond thought that he should have it. You know, he mentioned that on more than one occasion, but that was about it.

It would come up in small talk whe n Dane was city attorney and city manager.

Collins testified that Germond mentioned issues with plaintiff at a Kiwanis meeting: “I don’t believe he felt that George was doing the correct job. I think he felt that George was not effective in the performance of his duties. He made mention on ce of George having one of the township police vehicles outside of his jurisdiction, and I can not be positive here, but I believe he said up in Detroit.”

Both of these statements, even if true, do not show malice, es pecially in light of the fact that both statements involved th e performance of plaintiff’s du ties. Germond testified that he talked to Koehn at least four or five times before writing the first memo. While in one memo Germond said that plaintiff needed to be “held accountable,” Ge rmond testified that he did not mean disciplined. He was referring to Koehn exercising proper supervision and requiring plaintiff to comply with his supe rvisor. Koehn confirmed that he told Germond to put some of his concerns in writing so that Koehn “had a record of it” and so he could discuss the concerns with plaintiff. Koehn only decided to fire plaintiff after pla intiff repeatedly refused to meet with Koehn.-8- Because Germond was, at a minimum, a volunteer and because his acts were undertaken in good faith and without malice, the trial court erred in fail ing to grant Germond summary disposition on the basis of governmental immunity. 3

IV. DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’ S ERKA CLAIM

Defendants argue that the trial court erred in failing to gran t summary disposition on plaintiff’s ERKA claim. We agree.

MCL 423.506(1) provides that: “An employer or former employer shall not divulge a disciplinary report, letter of r eprimand, or other disciplinary action to a third party, to a party who is not a part of the employer’s organization, or to a party who is not a part of a labor organization representing the e mployee, without written notice as provided in this section.” 4

MCL 423.501(1)(c) provides, in relevant part:

“Personnel record” means a record kept by the employer that ide ntifies the employee, to the extent that the record is used or has been use d, or may affect or be used relative to that employee’s qualifications for employme nt, promotion, transfer, additional compensation, or disciplinary action. A pe rsonnel record shall include a record in the possession of a person, corporation, pa rtnership, or other association who has a contractual agreement with the employer t o keep or supply a personnel record as provided in this subdivision. A personnel record shall not include:

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( iv ) Information of a personal nature about a person other than th e employee if disclosure of the information would constitute a clearly unwarr anted invasion of the other person’s privacy.[ 5 ]

3 Because we conclude that Germond was entitled to governmental immunity, we decline to address his non-government al immunity arguments.

4 If such a disciplinary report is divulged, “written notice to the employee shall be by first-class mail to the employee's last known address, and shall be mailed on or before the day the information is divulged from the personnel record.” MCL 423.50 6(2).

5 While plaintiff alleged that defendants violated MCL 423.501(1 )(c)( iv ) by revealing “information of a personal natu re about a person other than the employee” where the “disclosure of the information would constitute a clearly unwarranted invas ion of the other person's privacy,” he has abandoned this claim on appeal by failing to b rief the point at all. Yee v Shiawassee Co Bd of Comm'rs , 251 Mich App 379, 406; 651 NW2d 756 (2002).-9- ( v ) Information that is kept separately from other records and th at relates to an investigation by the empl oyer pursuant to section 9.

MCL 423.509 in turn provides:

If an employer has reasonable cause to believe that an employee is engaged in criminal activity which may resu lt in loss or damage to the emp loyer’s property or disruption of the employer’s bus iness operation, and the employ er is engaged in an investigation, then the employer may keep a separate file of information relating to the invest igation. Upon completi on of the investiga tion or after 2 years, whichever comes first, the employee shall be notified that an i nvestigation was or is being conducted of the suspected criminal activity described in this section. Upon completion of the investigat ion, if disciplinary action is not taken, the investigative file and all copies of the material in it shall b e destroyed. [MCL 423.509.]

There is no support for plainti ff’s claim that the memos were disciplinary reports to which he was entitled notice, nor were the memos an investigati on of criminal charges.

After receiving the May 9 th memo, Koehn did not call for a formal investigation:

Q . Upon reading that memo, did you call for a formal investigat ion by the Michigan State Police of Mr. Truchan?

A . No.

Nor did Koehn believe that the le tter accused plaintiff of crim inal behavior:

Q . Did you believe that any of the allegations in Mr. Germond’s May 9, 2011, memo was accusing Mr. Truchan of having committed a crime ?

A . No.

Q . Did you consider any of the concerns expressed in Mr. Germon d’s May 27 memo as accusing Mr. Truchan of having committed a crime ?

A . No.

Koehn did not discuss the allegations in Germond’s memos in det ail, never conducted an investigation into the allegati ons, and never formulated an opi nion as to whether the allegations were true. Koehn did not believe that the letter accused plain tiff of criminal behavior.

Koehn was the Township’s FOIA coordinator and only learned of ERKA when he was served with the lawsuit. Koehn created a personnel “file” for plaintiff in June 2011, but denied creating the file to encourage a FOIA request. Rather, the pur pose of creating the file was for ease of reference at meetings. Koehn was the one who decided w hat to put in the file. He consulted Harvey Koselka about w hat could and c ould not be show n in a FOIA request. Koselka was a retired circuit court j udge and a fellow member of the Ki wanis Club.-10- Absent genuine issue of materia l fact on this point, the trial court erred in failing to grant defendants summary disposition o n plaintiff’s ERKA claim.

Reversed and remanded for entry of an order consistent with th is opinion. We do not retain jurisdiction.

/s/ David H. Sawyer /s/ Kirsten Frank Kelly /s/ Karen M. Fort Hood