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### STATE OF MICHIGAN

COURT OF APPEALS

ANDREW SHIRVELL,

Claimant-Appellee, FOR PUBLICATION January 8, 2015

9:00 a.m.

v No. 314223 Ingham Circuit Court DEPARTMENT OF ATTORNEY GENERAL, LC No. 12-000344-AE

Appellant,

and

DEPARTMENT OF LICENSING AND
REGULATORY AFFAIRS/UNEMPLOYMENT INSURANCE AGENCY,

Respondent.

ANDREW SHIRVELL,

Claimant-Appellee,

v No. 314227 Ingham Circuit Court DEPARTMENT OF ATTORNEY GENERAL, LC No. 12-000344-AE

Respondent,

and

DEPARTMENT OF LICENSING AND
REGULATORY AFFAIRS/UNEMPLOYMENT INSURANCE,

Appellant.

ANDREW SHIRVELL,

Petitioner-Appellant,-2- v No. 316146 Ingham Circuit Court DEPARTMENT OF ATTORNEY GENERAL, LC No. 12-001089-AA

Respondent-Appellee,

and

CIVIL SERVICE COMMISSION,

Defendant-Appellee.

Before: M URRAY , P.J., and O’C ONNELL and B ORRELLO , JJ.

B ORRELLO

, J.

In these consolidated appeals, in Docket Nos. 314223 and 31422 7, the Department of Attorney General (the Department), and the Department of Licens ing and Regulatory Affairs/Unemployment Insurance A gency (UIA), respectively, appe al by leave granted a circuit court order reversing the Michig an Compensation Appellate Commi ssion’s (MCAC’s) order affirming the UIA’s denial of cl aimant Andrew Shirvell’s claim for unemployment benefits. In Docket No. 316146, Shirvell appeals by leave granted a circuit court order affirming a Civil Service Commission (the Commission) order denying Shirvell’s gr ievance and holding that the Department had just-cause to terminate Shirvell’s employment un der the Civil Service Rules (CSRs) for conduct unbecoming a state employee. For the reason s set forth in this opinion, in Docket Nos. 314223 and 314227, we reverse the circuit court’s o rder and remand for reinstatement of the MCAC’s order and in Docket No. 316146, we affirm the circuit court’s

order.

I. BACKGROUND

These cases arise from Shirvell’s highly-publicized conduct di rected at Chris Armstrong in the summer and autumn of 2010. At the time, Armstrong was the president of the University of Michigan (U-M) Student Assemb ly (MSA) and was the first open ly gay individual to hold that position. Shirvell was an a ssistant attorney general with the Department, in a position where he worked since 2007. It is undisputed that Shirvell received good performance evaluations during his tenure with the Department. However, on November 8, 2010, he was dismissed for conduct unbecoming a state employee.

The impetus behind the termination was Shirvell’s actions surr ounding his authoring a public blog entitled the “Chris Armstrong Watch.” The blog con tained various postings concerning Armstrong, his sexual o rientation, and his “radical homosexual agenda.” For example, one blog entry characterized Armstrong as a “RADICAL H OMOSEXUAL ACTIVIST, RACIST, ELITIST, & LIAR ,” and another entry contained a rainbow flag with a swastika posted next to a photograph of Armstrong’s face with t he word “resign” nearby. In one entry, Shirvell referred to Ar mstrong as a “privileged pervert. ” Shirvell accused Armstrong of supporting a “radical homosexual agenda” that included support for rights such as “gay ‘marriage’ and adoption ‘rights,’ ” and a gender-neutral housing policy under which, according to-3- Shirvell, “cross-dressing student s will not have to share a dor m room with a member of the same sex,” and would “undoubtedly lead to a massive increase in rape s.”

In addition, Shirvell claimed that Armstrong was a “racist liar” because he joined a campus group called the “Order of Angell,” and that Armstrong d emonstrated “a severe contempt for the First Amendment right to freedom of expression . Much like Nazi Germany’s leaders, many of whom were also homosexuals. . . .” Shirvell a ccused Armstrong of engaging in “underage binge-drinking,” using his “sexual preference to adva nce his ambitions,” and claimed that Armstrong interned for Representative Nancy Pelosi “as a l owly handmaiden,” and referred to him as the “grand dragon” of the MSA.

In addition, Shirvell accused Armstrong of hosting a “gay orgy ” and asserted that Armstrong had a “tendency to engage in one-on-one casual ‘gay’ sexual encounters with friends. . . .” Shirvell asserted that the “gay orgy” “sheds new light on the deranged character of U of M’s new student body president . . . [and] shows that Armstrong ’s push for ‘gender neutral’ housing . . . may be part of a broader agenda to allow ‘gay res idents to more easily engage in ‘homosexual shenanigans’ (read: orgies, underage binge-drinking , and probably illegal drug use, too).” Shirvell wrote similar things about Armstrong’s friends and alleged that one male member of the MSA was Armstrong’s “secret boyfriend” who was a “closet homosexual.” In a television interview, Shirvell d id not deny that on one occasio n he referred to Armstrong as “Satan’s representative” on the MSA on a separate Facebook page . In addition to the blog, Shirvell appeared outside Armstr ong’s residence and at events w here Armstrong was present and held protest signs.

Initially, Shirvell maintained the blog under the pseudonym “C oncerned Michigan Alumnus,” however, on May 20, 2010, the newspaper Between the Lines , published an article identifying Shirvell as an “anti-gay heckler,” author of the bl og, and an assistant attorney general. Shortly thereafter, Shirvell and the blog became the subject of intense media scrutiny and in the summer and fall of 2010, Shirvell appeared on local and national news programs including Cable News Network’s (CNN’s) Anderson Cooper AC360 , and Comedy Central’s The Daily Show , to defend the blog. During the interviews, Shirvell explaine d that he was speaking as a private citizen and he refused to answer questions about h is position with the Department. Nevertheless, the media outlets identified Shirvell as an assis tant attorney general. In the interviews, Shirvell explained that he was opposed to Armstrong ’s policies, which he

characterized as a “radical homos exual agenda,” and denied that he had a personal agenda against Armstrong.

The fallout from the interviews was widespread. Former Michig an Attorney General

Michael Cox took measures to clar ify that Shirvell did not repr esent the views of the Department, sending an email to CNN and later appearing on AC360for an interview with Anderson Cooper. Cox explained that, although Shirvell was bei ng a bully and his conduct was “offensive” and “unbecoming of civil discourse,” Shirvell never theless had a First Amendment right to express his views. Shortly thereafter, the Michigan C ivil Rights Commission and the Ann Arbor City Council passed reso lutions condemning Shirvell’s behavior and questioning Shirvell’s impact on the Department’s ability to fulfill its mi ssion. In addition, U-M barred Shirvell from its campus for a time and Armstrong filed a petit ion for a Personal Protection Order (PPO), which was later dropped. Furthermore, according t o testimony from officials-4- within the Department, the Department was inundated with negati ve e-mails and telephone calls opposed to Shirvell.

Finally, on November 8, 2010, following a disciplinary hearing , the Department terminated Shirvell’s employmen t for “conduct unbecoming a stat e employee.” The Department

issued a termination letter to S hirvell that listed the reasons for the termination as follows:

Engaging in inappropriate conduc t by targeting individual memb ers of the public both in person and through electronic media, which could reasonably be construed to be an invasion of p rivacy, slanderous, libelous, a nd tantamount to stalking behavior unbecoming an Assi stant Attorney General.

Engaging in conduct which resulted in filing of a request for a personal protection order against you for alleged stalking behavior.

Conduct which has caused, or has the potential to cause, disru ption to the Department’s working relationships with its clients, the courts , and local
governments.

Conduct that has caused, or has the potential to cause, disrup tion among members of the Department workforce and could have a negative i mpact on attracting and retaining the mo st qualified employment candidat es.

Conduct that has damaged, or has the potential to damage, the public’s perception of the Department’s ability to conduct its operation s and mission.

Conduct that compromises your ability to perform your responsi bilities as

an Assistant Atto rney General.

Inappropriate, unprofessional be havior toward your supervisors and coworkers.

Ignoring advice and counsel of your supervisors.

Conduct which has resulted in a variety of offenses, a crimina l violation, and a civil warning regarding various statutes or ordinances in cluding, but not limited to: [Driving under the influence, trespass.]

Following his termination, Shirvell filed a grievance challeng ing the grounds for termination, arguing that the De partment did not have just caus e to terminate him under the

CSRs. Shirvell also filed a claim to recover unemployment bene fits.

In the grievance proceeding, 1 the circuit court affirmed the Commission’s finding that the Department had just cause for t ermination because Shirvell enga ged in “conduct unbecoming a

1 Docket No. 316146 (circuit court case no. 12-001089-AA).-5- state employee.” The circuit court reasoned that Shirvell’s co nduct interfered with the Department’s mission and effectiveness and therefore was not pr otected under the First Amendment. This Court granted Shirvell leave to appeal the cir cuit court order in Docket No.

316146. 2

In the unemployment compensation case, 3 the UIA determined that Shirvell was disqualified for benefits under the “misconduct” provision of t he Michigan Empl oyment Security Act (MESA), MCL 421.1 et seq . The MCAC affirmed the UIA, but the circuit court reversed, reasoning that Shirvell engaged inprotected speech and therefo re could not be denied benefits on the basis that his speech ac tivities amounted to misconduct. T his Court granted the Department and the UIA leave to appeal that order. 4 This Court consolidated the three appeals in separate

orders. 5

We proceed by first setting forth the evidence that was introd uced at the grievance hearing before discussing the e vidence introduced at the unempl oyment compensation hearing. 6

A. GRIEVANCE PROCEEDING

Following his termination, on November 15, 2010, Shirvell file d a grievance with the Department, claiming that his discharge was without just cause and was arbitrary and capricious. On January 18, 2011, the Department denied the grievance. Shir vell appealed the decision to the Commission and a hearing officer held a hearing on October 19 a nd October 20, 2011.

At the hearing, Douglas Bramble, the Department’s former human resources manager, testified that he initiated disc iplinary proceedings against Sh irvell based on Shirvell’s conduct regarding the blog and the tele vision interviews. Bramble expl ained that the Department was

concerned with the content of the blog, including the swastika directed at Armstrong and other accusations Shirvell made against Armstrong and Armstrong’s fri ends. The Department was

also concerned that U-M issued a t respass warning to Shirvell. Bramble stated that the Department began receiving tele phone calls and e-mails from peo ple concerned that an employee

2 Shirvell v Dep’t of Attorney General , unpublished order of the Court of Appeals, entered November 15, 2013 (Docket No. 316146).

3 Docket Nos. 314223, 314227 (circuit court case no. 12-000344-A E).

4 Shirvell v Dep’t of Attorney Gen , unpublished order of the Court of Appeals, entered October 11, 2013 (Docket Nos. 314223, 314227).

5 Shirvell v Dep’t of Attorney Gen , unpublished order of the Court of Appeals, entered November 15, 2013 (Docket No. 316146); Shirvell v Dep’t of Attorney Gen , unpublished order of the Court of Appeals, entered August 8, 2014 (Docket Nos. 314223; 314227; 316146).

6 The Department cites a decision in Armstrong v Shirvell , Case No. 2011-CV-11921, which involved a civil defamation action. However, we will not consi der that case in resolving the issues presented because it is a n improper expansion of the adm inistrative records. See Reeves v Kmart Corp , 229 Mich App 466, 481, n 7; 582 NW2d 841 (1998).-6- of the Department would engage in this type of conduct. Brambl e testified that the Department received numerous e-mails and telephone calls regarding Shirvel l’s behavior, necessitating, for a time, the Department to appoint an individual to work full-time to handle the complaints. Bramble and other officials within the Department appointed Mic hael Ondejko, an investigator within the Criminal Division, to c onduct a formal investigation

.

During his investigation, Ondej ko interviewed 40 individuals i ncluding Armstrong and several of his friends and associates. Generally speaking, the interviewees recounted their contacts with Shirvell, their r eactions to his blog postings pe rtaining to them, their concerns about the effect his blog would have on their futures, their fe ar for Armstrong’s safety, and the truth or falsity of certain statements Shirvell made about them on Facebook or on his blog. In particular, Ondejko reported that Armstrong claimed that Shirve ll was outside his house on at least three separate occasions. Armstrong told Ondejko that on September 4, 2010, Shirvell was outside taking pictures after t he police were called in respons e to a loud party complaint. Ondejko reported that during the disciplinary conference, Shirv ell admitted to calling the police and photographing their arrival on September 4, 2010. Armstron g also told Ondejko that on September 6, 2010, Shirvell appeared outside his house with a p rotest sign and that, because he was concerned for his safety, he called the Ann Arbor Police an d the U-M Department of Public Safety.

Ondejko testified that he was unable to prove that Shirvell ma de blog postings on his work computer. Further, he testi fied that he was unable to det ermine whether Shirvell used his work computer to post on social media sites like Facebook and T witter.

Ondejko testified that he felt he was “given a free hand to in vestigate the case the way [he] saw fit.” He testified that no one else helped him invest igate the case, although Thomas Cameron, a bureau chief with the Department, reviewed drafts of his report. As part of the investigation, Ondejko testified that the Department forwarded him “thousands” of emails and records of telephone calls concerning complaints that citizens made about Shirvell. Ondejko referenced these in the report, but he could not include them a ll because of the extensive numbers. He testified that no one told him they wanted to fire Shirvell or that they wanted his report to provide enough ammunition to support termination. Fu rther, he testified that he did not have a bias or prejudice agains t Shirvell when he conducted the investigation.

When Ondejko completed the report, the Department initiated a disciplinary conference with Shirvell and his counsel present. The conference lasted s everal hours and was to reconvene several days later. However, in the interim, Bramble and Camer on concluded that Shirvell had engaged in conduct unbecoming a state employee and recommended termination to Cox and Deputy Attorney General Carol Isaacs who agreed with the recomm endation. Bramble explained that the Department always held attorneys within the office to “a very high standard of conduct, both personal and profe ssional conduct.” Bramble test ified that the Department did not instruct its attorneys on how to carry out their personal lives , but the Department did have a “long history of expecting [attorn eys] . . . to recognize . . . that you are a representative of the Attorney General . . . at all times.” Bramble stated that as r epresentatives of the Attorney General, it would be “common sense to behave accordingly. . . . ”-7- Bramble explained that, during his short tenure with the Depar tment, Shirvell was formally disciplined for a loud verbal altercation with Brad Be aver, his immediate supervisor, and for violating the Department’s media-contacts policy for fa iling to inform the Department

about his first televised intervi ew. In addition to these viol ations, Bramble characterized Shirvell’s conduct with respect to Armstrong as “very egregious .” Bramble concluded that Shirvell had “compromised his ability to engage in the assigned duties and responsibilities of an Assistant Attorney General” to represent clients and the people of the state of Michigan. Bramble explained that it was not reasonable to reassign Shirve ll within the Department and he stated that Shirvell’s conduct affected the Department as a who le. He noted that other attorneys were being questioned about the c onduct during unrelated procee dings.

Cox testified at the grievance hearing and agreed that he appe ared on CNN where he stated that Shirvell had the right to say whatever he wanted re gardless of how offensive his speech was. 7 He agreed that during the Cooper interview he was “very candi d and said that he

7 An audio recording of Cox’s interview with Cooper was admitted into evidence at the grievance hearing. In the interv iew, Cox said that Shirvell wa s still employed at that time “for a number of reasons.” Specifically, Cox stated,

Here in America, we have this thing called the First Amendment , which allows people to express what they think . . . and engage in po litical and social speech.

And, more on point, the Supreme Court, both the United States Supreme
Court in 1995 in a case called US v Treasury Employees said that civil service employees in the federal system, and, by extension, in the stat e system, have free First Amendment rights outside of the work, as long as it doesn ’t impact their performance . . . at their job.

And Mr. Shirvell is sort of a front-line grunt assistant prose cutor in my office. He . . . does satisfactory work. And off-hours, he’s free to engage, under both our civil service rules, Mic higan Supreme Court rulings, and the United States Supreme Court rule . . . to engage in free speech.

When asked if Shirvell’s conduct was “unbecoming of a State em ployee,” Cox stated that

Shirvell’s actions were “offensive” and then added that “conduc t unbecoming is one of those empty-vessel statements” and that “what it means has never real ly been flushed out.” When

asked if Shirvell’s behavior w as generally “unbecoming,” Cox an swered “certainly,” and then elaborated that it was “unbecoming of civil discourse” and that it was “unbecoming of common courtesy.” However, he again noted that Shirvell was engaging in speech on a blog, and noted that if there was “conduct that’s verified” such as a PPO, then the Department “could start looking at things.” When asked if Shirvell was “detracting fro m [the] agency’s effective operation,” Cox said that he thought it was “quite a stretch” a nd that Shirvell’s blogging was “not impacting the mission of the office.” Finally, Cox stated that Shirvell was being a bully using the Internet, but noted again that the speech was protect ed under the First Amendment.-8- thought Mr. Shirvell’s conduct was offensive.” He also agreed that he said Shirvell was being a bully, but stated that Shirvell’s conduct did not interfere with the mission of the office. However, Cox testified that, at the time he gave the interview, he had not read the entire blog. After reading the entire blog, C ox was “shocked” at the content s and came to believe that Shirvell’s conduct threatened the mission of the Department. T hus, according to Cox, his statements during the Cooper inte rview were made prior to him c onducting a thorough investigation into Shirvel l’s comments and writings.

Cox testified that a number of things shocked him about the bl og, including Shirvell’s seeming “obsession” and “infatu ation” with Armstrong, Shirvell’ s “outing” of an individual from a small town in Michigan’s Upper Peninsula and then “crowing ab out it,” and that Shirvell described conduct that Cox, based on his prior experience as a prosecutor, considered stalking behavior. Cox stated that, in his view, merely because the Was htenaw County Prosecutor did not charge Shirvell was not dispositive as to whether Shirvell viol ated Michigan’s anti-stalking statute. Cox testified that when he appeared for the Cooper in terview he was also unaware of several things about Shirvell in cluding the verb al altercation he had with Beaver. Thus, Cox explained that when he said to Cooper that Shirvell was not imp acting the Department’s mission, his statement was “accurate from the perch that I was at.”

Cox explained why he agreed with t he recommendation to termina te Shirvell as follows:

This, in my mind, was in stunning detail, an overwhelming case to terminate Mr. Shirvell. [The investigative report] outlined es calating behavior. It outlined behavior separate from the blog that dealt with not on ly his behavior in the workplace but also his behavior outside the workplace, some which I would call minimally misdemeanant criminal, meaning stalking. Other behavior that would undermine the office in its daily operations. Some of it nuts and bolts but also some of it, you know, in the sense of it was conduct that one does not expect and should not accept from a state employee, especially a state employee in the Attorney General’s office . . . .

Cox testified that Shirvell wa s engaging in conduct that was “ inviting” a civil lawsuit, but

was aware that Shirvell was not c oncerned about a civil lawsuitbecause he viewed himself as “judgment proof.” Cox testified th at Shirvell’s attitude showe d that he “wasn’t concerned to the impact he was having on other i ndividuals in the office.”

Former Solicitor General Eric Restuccia was ultimately respons ible for the Appellate

Division where Shirvell worked. Restuccia testified that he fi rst learned of the blog in May 2010, through an e-mail that was s ent to him. Restuccia confir med with the Department’s ethics officer that blogging was permissi ble and he did not attempt to force Shirvell to remove the blog. Instead, he spoke with Shirvell to ensure that Shirvell was not engaging in political activity on state time or using state resources and also to assure that Shi rvell was not identifying himself as an assistant attorney general.

According to Restuccia, he spoke with Shirvell about the blog and explained that it was not helping Shirvell and that i t was not good to have people co mplaining about him to his supervisors. He later added that he told Shirvell the blog wou ld cause “problems in terms of-9- [his] standing” within the Depar tment. He also testified that he may have suggested Shirvell take the blog down. However, it is undisputed that he did not order Shirvell to take the blog down. Restuccia explained that he had no authority to order the blog be taken down.

Restuccia testified about a similar incident that occurred in February 2010, when he spoke with Shirvell about an “ugly” e-mail that Shirvell sent d uring work hours. The e-mail was sent to a former state representative in response to the repres entative’s e-mail concerning a planned demonstration on issues i nvolving gay right s and it rea d:

You are all sick freaks. Absolutely shameful [] Your e-mail is beyond offensive. The grassroots will NEVER let you and your butt-bud dies . . . hijack our pro-life, pro-family party i n pursuit of your PERVERTED rad ical homosexual agenda.

Shirvell’s e-mail contained another statement directed at a mannamed Justin, which read as

follows:

P.S. Justin(e), a persistent rumor in D.C. circles is that you and Illinois Log Cabin “Republican” Congress “man” [] hooked-up together. S ick. Sick. SICK! ! ! ! ! Does your homose xual lover Steve know? Freak.

Shirvell admitted to sending the e-mail from his personal e-ma il account while he was on lunch. Restuccia testified that he and Joel McGormley, divisio n chief at the time, spoke to Shirvell because they were concerned that Shirvell was engaging in political activity on work time. He said that he explained to Shirvell that the e-mail wa s obviously not work-related and reminded him that employees were not supposed to engage in poli tical activity on work time or

use work resources. Restuccia testified that he told Shirvell the e-mail was not helping him in the Department and that it refl ected badly on him. Shirvell te stified that the meeting was minor and lasted “maybe less than five minutes.” Shirvell stated tha t Restuccia and McGormley told him that the e-mail was “no big deal” and not to worry about it . To his knowledge, no writing about the incident was prepared or placed in his personnel file

.

In August 2010, the Department’s communications office informe d Restuccia that Shirvell conducted an interview with WXYZ, a local news channel in Detroit, and that the Department was receiving media inquiries about its anti-cyber-b ullying campaign. At that point, Restuccia explained that he “r eally went through the blog,” and “that’s when I fully understood that this is exclusively dedicated to Chris Armstrong and that all of the columns were about and related to Chris Armstrong.” Res tuccia testified that when he looked at the blog, he thought it was “disheartening because it was so angry, caustic.” He thoug ht that the blog was more of an “attack” than something intended to be persuasive. Restuccia e xplained that he told Shirvell that the blog “undermined his professional credibility.” He indicat ed at the time of the WXYZ interview, the Department was pushing an anti-cyber-bullying po licy. He explained that when he spoke with Shirvell, he informed Shirvell that the Departmen t had been “sandbagged by the press” who were showing the conn ections between Shirvell’s beha vior and the cyber-bullying policy.” Restuccia testified tha t Shirvell “was undermining th e Attorney General’s efforts to protect the community.” Cox wanted to “make sure that children in our community are safe and-10- we don’t have people who are enga ging in inappropriate comment and here you have then one of his assistants who’s, you know, dire cting it toward a 21-year-o ld. . . .”

Restuccia initially attempted t o prohibit Shirvell from conduc ting any further interviews, but ultimately Cox informed Restuccia that the Department could not restrict Shirvell’s speech

outside the office. Restuccia to ld Shirvell that he was not pr ohibited from conducting interviews, but that the interviews would reflect poorly on him. Restucciaadded that he tried to make

Shirvell understand that he would look “absurd” if he conducted the interviews. Restuccia testified that although Shirvell was humiliated by the WXYZ int erview, Shirvell believed he

could be “more effective” on CNN. Restuccia testified that it was “evident” that Shirvell’s “whole focus was in on his kind of political crusade and [that he] had lost all sense of proportion

for his role in the office.” Restuccia testified that he “had no authority as supervisor to limit [Shirvell’s] First Amendment right to engage in activity outsid e the office,” so he told him as a

friend that it would be bad for him.

According to Restuccia, during the time between the WXYZ and C NN interviews,

Shirvell became “more isolated” and the incident with Beaver oc curred. Restuccia explained that the CNN interview was a “disaster” that “disgraced” and cr ippled the Department. The Department was inundated with a “huge response” from citizens and it received “thousands” of

calls and e-mails. Restuccia stat ed that the situation was “be yond our control.”

Other evidence admitted at the hearing illustrated the impact that Shirvell’s conduct had on the Department. A bureau chief for the Department asserted that the Department received over 20,000 complaints about Shirvell’s conduct. The November 9, 2010 executive summary of the investigative report indicated that the “Department has rec eived over 22,000 em ails, over 150 letters, and 940 phone calls – nearly all criticizing AAG Shirv ell’s conduct.” Further, it indicated that “[t]he office has been inundated with media call s, the office has since had to issue several press releases, and the Attorney General has had to app ear on national ne ws to defend the integrity of the office.”

Restuccia explained that, given all of the events related to S hirvell’s blog and the media frenzy that followed:

[T]here is no role that Andrew Shirvell could provide for the state ever again. He has been irrevocably undermined, he has no credibili ty. In the eyes of the community and the legal community he is the paradigm of the bigot. If we were forced to somehow retain him or bring him back . . . my re commendation would be that he [be] given no assignment . . . and be given no thing to do because there is nothing that he can do for the office that would not t hen cast doubt on its credibility and legitimacy. There is nothing further he can do for the office.

Shirvell testified that he worked for both of Cox’s campaigns for Attorney General; he worked in non-attorney roles for the Department from 2003 throu gh 2007, when he was offered a position as an assistant attorney general. Shirvell eventually worked in the Appellate Division, where Beaver, McGormley and Res tuccia were his superiors.-11- In April 2010, Shirvell started the blog af ter reading an arti cle about Armstrong in the

Detroit Free Press . Shirvell admitted that he wrote everything in the blog and h e believed everything he wrote was true at t he time he wrote it. Shirvell explained that Res tuccia and Isaacs spoke with him about the bl og in May 2010, but they did not ins truct him to take the blog down.

Shirvell initially agreed to the WXYZ interview on condition t hat the reporter, Ross Jones, not ask questions about the Department or his role withi n the Department. Shirvell stated that he received a written reprim and for appearing for the inte rview without first notifying the Department. He stated that he read the Department’s media cont acts policy and did not think that it applied to him.

After the WXYZ interview, according to Shirvell, “things began to change at the office.” Shirvell testified that his relationships with his superiors we re “much different, much different, much different.” Additionally, Shirvell was approached by CNN and Comedy Central about two more nationally-televised interviews and, ultimately, he agreed to the interviews. Shirvell stated that he agreed to the interviews on condition that he not be as ked about his role within the Department. However, he was aware that during the WXYZ intervi ew he was asked about his role as an assistant attorney general and there was nothing in writing stating that reporters would not ask about the Department.

Shirvell testified that he thought he could work for the Department in some capacity; he explained that his personal views never interfered with his res ponsibilities at work. Shirvell noted that, sometime after McGormley learned of his blog, McGor mley assigned him to work on a gay-marriage issue. Shirvell explained that McGormley stated that he had done a good job with the assignment and he disputed the contention that McGorml ey did not know about the blog at the time of the assignment.

Shirvell defended the content of the blog, stating that he bel ieved everything he wrote on the blog at the time that he wrote it. Shirvell admitted calli ng Armstrong a “privileged pervert” and stated that he thought that Armstrong engaged in a “pervert ed” lifestyle by being gay. Shirvell also agreed that he compared one of Armstrong’s rallie s to the “KKK” because there were no minorities at the rally. Shirvell admitted writing a b log post about Armstrong’s “secret boyfriend,” but denied that he “outed” the boyfriend.

On March 21, 2012, the hearing officer issued a lengthy opinio n denying Shirvell’s grievance and finding that the Department proved by a preponder ance of the evidence that Shirvell’s discharge was for j ust cause. The hearing officer s ummarized the content of the blog

as follows:

The hearing officer will not in this decision go into great de tail regarding these “blog” postings, but review of them makes it clear that t he grievant was obsessed with Armstrong, his homosexuality, the fact that he ca me from a monied [sic] background, and the fact that he had political connection s with individuals (such as Speaker of the House Nancy Pelosi . . .) whose politic s were diametrically opposed to those of the grievant. Review of the “blog” postings reveals that the grievant engaged in some of the most hateful s peech imaginable.-12- He sought to and in fact did “out ” individuals whose homosexual ity had been their private concern un til his intervention.

* * *

It is clear from this record, however, that the actual basis f or the appalling acts of harassment directed at Armstrong and his acquaintances by the grievant, however, was their homosexuality. It is clear that the Order o f Angell issue, while it may have been of some concern to the grievant, was use d as a pretext in an effort to couch the most vile hate speech in a constitutiona lly protected form. All one needs to do is read the “blog” article after article, t o realize that the dominant theme is Armstrong’s “d isgusting” or “p erverted” lifes tyle.

The hearing officer continued, determining that there was a su fficient nexus between Shirvell’s conduct and his employment with the Department such that the termination did not violate the First Amendment. The hearing officer reasoned that Shirvell’s interviews cast the Department in a negative light and necessitated Cox appearing o n national television to explain the Department’s position. The hearing officer concluded that Shirvell engaged in “conduct unbecoming a state employee” under the CSRs that justified his termination, reasoning as

follows:

By accepting the invitations to appear on the Cooper program and The Daily Show, the grievant made a media spectacle of himself and cast the Department . . . in a negative light. He did so paying attenti on to his own interests and disregarding the interests a nd reputation of his employer. The testimony in the record indicates that not only did the grievant create a gr eat deal of scrutiny from the media, that scrutiny ge nerated a tidal wave of condemn ation from the public in the form of . . . thous ands of telephone calls, email s and letters. This impacted the DAG and its ability t o successfully carry out its mission . . . . [I]t is clear that there was a substantial expression of concern by . . . clientele that an agency who would retain such an employee would be unable to rep resent their

interests.

* * *

The speech engaged in by the grievant is of the most base, hat eful sort . . . . This speech, generating the negative publicity that it did . . . is conduct unbecoming any state employee, let alone a state employee worki ng as an Assistant Attorney General.

* * *

The sexual orientation of an i ndividual is a matter protected by Civil Service rules. That protection applies not only to state emplo yees, but also to the general public when it prohibits an appointing authority from e ngaging in such discrimination in the hiring or recruitment process. The condu ct of the grievant in creating a media circus around the hate speech against homosexu als in his “blog” could well impact the ability of the DAG to recruit and hire ot herwise qualified-13- individuals if they felt that the ir sexual orientation might be an issue with an agency that continued to empl oy such a truculent, intolerant in dividual. The focus of the “blog” postings . . . are determined to have been motiva ted by the grievant’s obsession with the sex ual orientation of Chris Armst rong and the fact that Armstrong had been elected by the student body to be the l eader of their student government. For reasons known but to himself, the grie vant could not bear the thought of Armstrong be ing elected to such a position.

* * *

The hearing officer would not countenance the pursuit and hara ssment of any member of a group protected by Civil Service rules on the s cale demonstrated here as being worthy of any state employee.

* * *

All State of Michigan employees work for all of the citizens o f this state. Assistant Attorneys General not only work for the citizens of t his state, but are responsible to assure that the legal rights of those citizens are protected. The citizenry needs to be able to have faith that their government and its employees are there to serve and protect t he citizens, all citizens, even those whose conduct may seem repugnant to them.

* * *

The grievant has been determined . . . to have engaged in hara ssing

conduct of the basest sort . . . T he fact that the grievant de liberately made a media spectacle of himself and the department for which he worked without regard for the interests of his employer c onstitutes conduct unbecoming a state employee.

Shirvell appealed the hearing officer’s decision to the Employ ment Relations Board (ERB) and moved to admit several e-mails which Shirvell claimedamounted to newlydiscovered evidence. On July 12, 2012, the ERB granted in part and denied in part the motion to

admit the e-mails 8 and affirmed the hearing office r’s decision. The ERB held tha t the Department had just-cause to terminate Shirvell where Shirvell’ s conduct interfered with the internal operations of the Department and tarnished the credibi lity of both Shirvell and the Department. The ERB also found that Shirvell’s behavior and di sregard for the advice of his superiors made it impossible to trust his judgment.

8 According to Shirvell, the e-mails showed that Armstrong “util ized high-powered Hollywood publicist Howard Bragman to manipulate the media and bring publ ic pressure . . . to terminate [Shirvell.”]-14- On August 13, 2012, the Commission approved the recommendation s of the ERB and adopted the ERB’s decision as its final decision on the matter. Shirvell appealed the Commission’s ruling to th e circuit court.

Following oral argument, in an April 18, 2013, opinion and ord er, the circuit court

affirmed the Commission’s order. The circuit court held there was competent, material, and substantial evidence on the whole record to support the finding of just cause to terminate Shirvell’s employment. The court noted that Shirvell’s off-dut y conduct resulted in the Department receiving more than 22,000 e-mails, 150 letters, and nearly 950 phone calls; in addition, the Department was inundated with media contacts and had to assign staff members to solely deal with the outcry resulting from Shirvell’s conduct. Further, the court found that there was evidence that demonstrated the Department’s reputation was damaged by Shirvell’s off-duty actions. Specifically, there was evidence that the Department’ s cyber-bullying initiative was questioned and that two organizations issued resolutions condemning Shirvell’s actions and questioning the Department’s abi lity to carry out its mission. Finally, there was evidence that Shirvell’s off-duty conduct damaged the Department’s image of e mploying law-abiding personnel. Specifically, the court noted that Shirvell had mul tiple police contacts, that stalking charges were considered, that A rmstrong sought a PPO, and that Shirvell was banned from the U-M campus for a time. The circuit court also concluded that t he First Amendment did not preclude the Department from di sciplining Shirvell in this case

.

Finally, the circuit court concluded that Shirvell’s terminati on was not arbitrary and capricious because even without the information gathered in the allegedly biased internal investigation, there was suffici ent evidence in support of his termination. Further, the court noted that Shirvell had not pr oduced any evidence in support of his assertion that the result of the investigation was pre-ordained. This Court granted Shirvell’s application for leave to appeal the

circuit court order.

B. UNEMPLOYMENT BENEFITS PROCEEDING

Shirvell filed his claim for unemployment compensation on Nove mber 17, 2010. The UIA issued a determination that Shirvell was disqualified for b enefits under the “misconduct” provision of the MESA. The UIA found that S hirvell was termina ted for “conduct unbecoming a State employee” by targeting individual members of the public i n a manner that could be construed as an invasion of pr ivacy, libel, or slander. The ag ency also found that Shirvell’s conduct “has caused or has the potential to cause disruption” t o the Department’s working relationship with its c lients and the courts.

Following Shirvell’s protest, the UIA issued a redetermination that Shirvell was disqualified for benefits because of misconduct and Shirvell ap pealed the redetermination. Thereafter, a hearing referee held a hearing, where both Shirve ll and Bramble offered testimony similar to the testimony offered at the grievance hearing discu ssed above. Specifically, Bramble testified that the Department received hundreds of telephone ca lls and e-mails from the public following Shirvell’s televised interviews. Bramble also testif ied that attorneys within the Department were being questioned about Shirvell during unrelate d proceedings and noted the Michigan Civil Rights Commission and the Ann Arbor City Council passed resolutions condemning Shirvell’s conduct. Bramble testified that the Depa rtment concluded that Shirvell-15- could no longer serve as an assist ant attorney general. In add ition, evidence show ed that Shirvell gave televised interviews and exhibits were introduced at the h earing including the termination letter, excerpts of the blog, and atranscript of Cox’s CNN int erview.

Following the hearing, on September 2, 2011, the referee issue d a decision and order affirming the UIA’s decision to de ny Shirvell unemployment bene fits. The refer ee concluded,

The claimant . . . was responsible for assisting the Attorney General in performing of his official dutie s. Those duties included servi ng the State of Michigan and its subordinate agenc ies and working with municipa lities. Without passing on the issue of whether or not the claimant’s speech co ncerning the MSA student president represented act ivities [were] protected under the First Amendment, it is concluded that the claimant’s speech did have an adverse impact on the performance of the employer’s duties. The employ er had to deal with numerous public inquiries concerning the claimant. At lea st two of the public entities with which the employer had to deal professiona lly issued public

resolutions critical of the clai mant and calling on the employe r to take action concerning the claimant. Finall y, the Attorney General himself felt it necessary to occupy his time in addressing on national television the claimant and his speaking activities, time which could have been productively spent in ad dressing other pressing duties.

It is concluded that the claimant’s activities, including thos e concerning the student president, the claima nt’s violation of the employer ’s media policy, and his outburst at work against hi s supervisor, taken individuallymay not have amounted to statutory misconduct. Taken together, however, the y adversely affected the ability of the employer to execute its duties to s uch an extent that they represented misconduct under the Act. The claimant therefore i s disqualified for benefits under the misconduct provision of the Act. Because he is disqualified, he must requalify.

Shirvell appealed the referee’s decision to the MCAC. On Febr uary 27, 2012, the MCAC

affirmed the referee’s decision af ter reviewing the entire reco rd, concluding that the decision was “in conformity with the facts as developed at the . . . hearing ” and that the referee had “properly applied the law to the facts.”

Shirvell appealed the MCAC’s d ecision to the cir cuit court, an d the circuit court reversed. The court reasoned that the MESA’s misconduct provision, MCL 42 1.29(1)(b), and the related caselaw was inapplicable because Shirvell’s activities amounted to constitutionally-protected speech and the government could not deny Shirvell a benefit bec ause of his speech. The circuit court found that it was undisputed that Shirvell was terminated because of his speech and concluded that the blog and related political activities amount ed to protected speech. The circuit court further held that all other disciplinary actions against Shirvell did not amount to misconduct under the MESA. The Department and the UIA moved fo r reconsideration, and the circuit court denied the motion. The circuit court expressly d eclined to apply the First Amendment balancing-test set forth in Pickering v Bd of Ed , 391 US 563, 568; 88 S Ct 1731; 20 L Ed 2d 811 (1968), holding that the test was inapplicable in the context of unemployment-16- benefits. This Court granted the Department’s and the UIA’s ap plications for leave to appeal the

circuit court order. This Court consolidated the appeals with Shirvell’s appeal in the grievance proceeding.

II. STANDARD OF REVIEW

In Docket No. 316146 (the grievance proceeding), Shirvell cont ends that the circuit court erred in affirming the Commission’s order that he was terminate d for just cause and he argues that exercising his First Amendment right to free speech cannot constitute “conduct unbecoming a state employee” under the CSRs. Shirvell also contends that his termination was arbitrary and capricious.

In Docket Nos. 314223 and 314227, the Department and the UIA a rgue that the circuit court erred in holding that Shirvell was entitled to unemployme nt benefits because his speech was protected under the First Am endment and therefore could not constitute “misconduct” under

the MESA.

The circuit court addressed and decided the issues raised by t he parties; therefore, they are preserved for our review. 9 Reed v Reed , 265 Mich App 131, 163; 693 NW2d 825 (2005).

“A final agency decision is subject to court review but it mus t generally be upheld if it is not contrary to law, is not arbi trary, capricious, or a clear a buse of discretion, and is supported by competent, material and substantial evidence on the whole recor d.” VanZandt v State Employees’ Retirement Sys , 266 Mich App 579, 583; 701 NW2d 214 (2005). “This Court

reviews a lower court’s review of an administrative decision to determine whether the lower court applied correct legal prin ciples and whether it misappreh ended or misapplied the

substantial evidence test to the [agency’s] factual findings, w hich is essentially a clearly

erroneous standard of review.” Id . at 585. “‘Substantial evidence’ is that which a reasonable mind would accept as adequate to support a decision, being more than a scintilla, but less than a preponderance of the evidence.” Id . at 584. These appeals also involve the proper interpretation and application of relevant stat utes and the First Amendment, b oth of which involve questions of

law that we review de novo. Elba Twp v Gratiot Co Drain Comm’r , 493 Mich 265, 277-278; 831 NW2d 204 (2013).

III. ANALYSIS

A. FIRST AMENDMENT

9 In Docket Nos. 314223 and 314227, Shi rvell argues that the UIA waived review of the issues in its brief on appeal because it did not file a brief or particip ate in formal oral argument in the circuit court. However, the issues raised by the Department an d the UIA are essentially identical and the circuit court addressed and decided the issues; therefo re, we will consider them preserved for our review.-17- The over-arching issue in these cases involves whether Shirvel l’s speech and speechrelated activities were protected under the First Amendment. I n the event that Shirvell’s activities were protected under th e First Amendment, then the g overnmental entities involved could not penalize Shirvell—i.e. either terminate him or deny h im unemployment benefits— because of his speech. Thus, we proceed with our First Amendme nt analysis before addressing the statutory and administrativ e grounds for termination and de nial of unemployment benefits.

“The First Amendment protects the speech and association right s of an individual . . . no matter how different, unpopular o r morally repugnant society ma y find his activities.” Melzer v Bd of Ed , 336 F 3d 185, 192 (CA 2, 2003). Government employees do not forfeit their constitutionally-protected free speech interest by virtue of ac cepting government employment. See, e.g., Rankin v McPherson , 483 US 378, 383; 107 S Ct 2891; 97 L Ed 2d 315 (1987) (“It is clearly established that a State may not discharge an employee on a basis that infringes that employee’s constitutionally protected interest in freedom of sp eech.”) However, while an employee does not forfeit their free speech interests by virtue of holding government employment, “the State has interests as an employer in regulati ng the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Pickering v Bd of Ed , 391 US 563, 568; 88 S Ct 1731; 20 L Ed 2d 811 (1968). Thus, “[w]hen a citizen enters government service, the citizen by necessity must accept

certain limitations on his or her freedom.” Garcetti v Ceballos , 547 US 410, 418; 126 S Ct 1951; 164 L Ed 2d 689 (2006); see also Dishnow v School Dist , 77 F 3d 194, 197 (CA 7, 1996) (“True it is that speech which could notbe prohibited by the state if uttered by a private person may be a lawful basis for discharge or other discipline when uttered by a public employee.”) This is because, “[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there woul d be little chance for the efficient provision of public services.” Garcetti , 547 US at 418. “Public employees, moreover, often occupy trusted positions in society. When they speak out, theycan express views that contravene governmental policies or impair the proper performan ce of governmental functions.”

Id . at 419.

In Pickering , 391 US at 568, the United States Supreme Court addressed whether a public employee was wrongfully terminated for exercising his First Ame ndment right to free speech and explained that resolution of the issue required “arriv[ing] at a balance between the interests of the . . . [employee], as a c itizen, in commenting upon matte rs of public concern and the interest of the State, as an employer, in promoting the efficie ncy of the public services it performs through its employees.” Under the Pickering framework, an employee is entitled to protection under the First Amendment if he or she spoke as a pr ivate citizen on a matter of public

concern and where the state cannot show that its interest in th e efficient provision of public services outweighs the employee’s interest in commenting on the matter of public concern.-18- Pickering , 391 US at 563; Rankin , 483 US at 384. Because these cases involve the denial of

benefits because of Shirvell’ s speech, we proceed by applying t he Pickering framework. 10

(1) Private Citizen/Public Concern

The first prong of the Pickering framework “serves a gatekeeping function” because “[t]he First Amendment protects an employee only when he is spe aking ‘as a citizen upon matters of public concern’ as opposed to when he speaks only on matters of personal concern.”
Melzer , 336 F 3d at 193, quoting Connick v Myers , 461 US 138, 147; 103 S Ct 1684; 75 L Ed 2d 708 (1983). In the event that an employee’s speech involves a matter of personal concern, the government has broad discretion to deal with the employee as it deems fit without “any special burden of justification. . . .” United States v Nat’l Treasury Employees’ Union , 513 US 454, 466; 115 S Ct 1003; 130 L Ed 2d 964 (1995), citing Connick , 461 US at 148-149. “If, however, the speech does involve a matte r of public concern, the governm ent bears the burden of justifying its adverse employment action.” NTEU , 513 US at 466.

Whether an employee spoke as a citizen on a matter of public c oncern involves a question of law for the court to decide. Rorrer v City of Stow , 743 F3d 1025, 1047 (CA 6, 2014). Resolving this issue requires cons ideration of “the content, fo rm, and context of a given statement, as revealed by the whole record.” Connick , 461 US at 147-148. “[P]ublic concern is something that is a subject of legitimate news interest; that i s, a subject of general interest and of value and concern to the public at the time of publication.” San Diego v Roe , 543 US 77, 83-84; 125 S Ct 521; 160 L Ed 2d 410 (2004). “But the speech need not address a topic of great societal importance, or even pique the interest of a large segment of th e public. . . .” Craig v Rich Twp High School Dist 227 , 736 F 3d 1110, 1116 (CA 7, 2013) (quotation marks and citatio ns omitted). “That the public was not large, that the issues were not of global significance . . . [does] not place [] speech outside the orbit of protection.” Dishnow , 77 F 3d at 197. Moreover, “[t]he inappropriate or controvers ial character of a statement is irrelevant to the question whether

it deals with a matte r of public concern.” Rankin , 483 US at 387.

In this case, the parties do not dispute that Shirvell spoke a s a private citizen. Additionally, we need not devote a prominent part of this opini on to determine whether Shirvell’s speech touched on a matter of public concern. Assum ing, as Shirvell argues, that his speech touched on a matter of public concern, it was a matter o f very limited public concern. Our review of the blog postings and Shirvell’s “protest” activi ties leads us to conclude that the vast majority of the speech was dedicated to discussing the sex ual orientation of Armstrong and Armstrong’s acquaintances. Armstrong was the president of a student body and as such, he did not hold prominent publ ic office. He was not involved in a hig hly-publicized political campaign. Moreover, the evidence showed tha t the media attention Shirvell received was focused on the fact that Shirvell, an assistant attorney general, was orchestr ating a campaign against Armstrong using tactics that could reasonably be construed as harassment and cyber-bullying. Nevertheless,

10 To the extent that the circui t court in Docket Nos. 314223 and 314227 held that Pickering did not apply in cases involving unemployment benefits, we hold tha t conclusion constituted legal

error.-19- for purposes of our analysis, we assume that Shirvell spoke as a private citizen on a matter of public concern.

2. Pickering

- Connick Balancing Test

“An employer does not necessarily violate the First Amendment by discharging an employee that speaks out on a matter of public concern.” Craig , 736 F 3d at 1118. “The government is entitled to restrict speech that addresses a matt er of public concern if it can prove that the interest of the employee as a citizen in commenting on the matter is outweighed by the interest of the government employer in promoting effective and efficient public service.” Id

., (quotation marks and cita tions omitted); see also Connick , 461 US at 149-150. “[T]he State’s burden in justifying a particular discharge varies depending up on the nature of the employee’s expression.” Connick , 461 US at 150. In evaluating the government’s interests, pro per focus is placed on the “effective functi oning of the public employer’s e nterprise” and “[i] nterference with work, personnel relationships, or the speaker’s job performance can detract from the public employer’s function; avoiding such interference can be a strong state interest.” Rankin , 483 US at 388. Furthermore, it is not necessary “for an employer to a llow events to unfold to the extent that the disruption of the office and the destruction of workin g relationships is manifest before taking action.” Connick , 461 US at 152. Rather, “the governmental employer may defeat the [employee’s] claim by demonstrating that it reasonably believedthat the speech would potentially interfere with or dis rupt the government’s activiti es, and can persuade the court that the potential disruptiveness was sufficient to outweigh the Fir st Amendment value of that Speech.” Pappas v Giuliani , 290 F 3d 143, 146 (CA 2, 2002) (quotation marks and citations omitted).

In balancing the competing interests under Pickering , courts consider several factors to guide their analysis; these non-exhaustive factors may include consideration of whether the employee’s speech: (1) impaired discipline by superiors, (2) de trimentally impacted close working relationships, (3) underm ined a legitimate goal or miss ion of the employer, (4) impeded the performance of the speaker’s duties, and (5) impaired harmo ny among co-workers. Meyers v City of Cincinnati , 934 F 2d 726, 730 (CA 6, 1991), citing Rankin , 483 US at 388. As noted above, it is sufficient if the governmental employer can show a reasonable likelihood that the speech may lead to any of the se adverse impacts. See Connick , 461 US at 152; Pappas , 290 F 3d at 146. Additionally, the content of the speech is relevant to determine “[t]he degree of disruption or potential disrupti on necessary to justify [the go vernmental action].” Craig , 736 F 3d at 1119. “The less serious, portentous, political, signific ant the genre of expression, the less imposing the justification that the government must put forth i n order to be permitted to suppress the expression.” Eberhardt v O’Malley , 17 F 3d 1023, 1026 (CA 7, 1994).

A brief review of caselaw is illustrative of the degree of dis ruption or potential disruption that is necessary to justify s uppression of a public employee’s speech. For example, in Pickering , 391 US at 569, a public school t eacher wrote a letter to the editor of a local newspaper criticizing the school board’s all ocation of funds between athl etics and education. The school board then terminated the teacher for writing the letter. Id . at 566. The Supreme Court held that the termination violated the teacher’s First Amendment right to freedom of speech. Id . The Court reasoned that the teacher’s interests in speaking on a ma tter of public concern outweighed any interest asserted by the school board where, in part, there was no indication that the speech-20- “interfered with the regular ope ration of the schools generally ” or impacted the teacher’s “proper performance of his daily du ties in the classroom.” Id . at 572-573.

Similarly, in Rankin , 483 US at 378, the Court held that the respondent’s terminati on violated the First Amendment where the governmental entity, the Constable of Harris County, Texas, failed to show that the re spondent’s speech impacted the internal affairs of the office. In that case, the respondent was employed as a clerical worker whe re she did not have any contact with the public. Id . at 380-381. On March 30, 1981, in response to a radio news b ulletin on the attempted assassination of Presi dent Ronald Reagan, the respond ent remarked to a co-worker, “if they go for him again, I hope they get him.” Id . at 381. Upon learning of the statement, the Constable terminated the respondent, concluding that she was un fit to work for a law enforcement agency; th e respondent filed suit. Id . at 390. After concluding that the respondent’s speech touched on a matter of public concern, the Supreme Court concluded that the Constable failed to show that the speech “interfered with the efficient f unctioning of the office.” Id . at 389. Specifically, the Court considered the nature of the respondent ’s role within the office and that the respondent did not have any c ontact with the public, explai ning:

in weighing the State’s interest in discharging an employee ba sed on any claim that the content of a statement made by the employee some how undermines the mission of the public employer, some attention must be paid to the responsibilities of the employee within the agency. The burdenof caution employees bear with respect to the words they speak will vary w ith the extent of authority and public accountabilitythe employee’s role entails . Where, as here, an employee serves no confidential, policymaking, or public con tact role, the danger to the agency’s successful functioning from that employe e’s private speech is minimal. [ Id . at 390-391.]

In contrast, the Second Circuit Court of Appeals 11 has held that protecting a government agency’s reputation can be a le gitimate state interest that can outweigh a public employee’s right to speak as a private citizen on a matter of public concern. I n Pappas , 290 F 3d at 143, an officer of the New York Police Department (NYPD) anonymously replied to several non-profit mail

solicitations with racist and anti-Semitic diatribes. When the officer’s identity was revealed, his conduct and the NYPD’s subsequent investigation garnered media attention and the officer was ultimately dismissed. Id . at 145. In discussing the governmental interests at stake, the court explained:

The effectiveness of a city’s police department depends import antly on the respect and trust of the community and on the perception in the community that it enforces the law fairly, even- handedly, and without bias . . . . If the police department treats a segment of the population of any race, reli gion, gender, national origin, or sexual prefer ence, etc., with contempt, so that the particular

11 “Though not binding on this Court, federal precedent is genera lly considered highly persuasive when it addresses analogous issues.” Wilcoxon v Minn Mining & Mfg Co , 235 Mich App 347, 360 n 5; 597 NW2d 250 (1999).-21- minority comes to regard the police as oppressor rather than pr otector, respect for law enforcement is eroded and the ability of the police to do i ts work in that community is impaired. Members of the minority will be less li kely to report crimes, to offer testimony as witnesses, and to rely on the pol ice for their protection. When the police make arrests in that community, it s members are likely to assume that the arrests are a product of bias, rather than well-founded, protective law enforcement. And the department’s ability to re cruit and train personnel from that community will be damaged. [ Id . at 146-147.]

The court concluded that the NYPD’s interests in preserving it s reputation and relationship with the public out weighed any interest the office r had in distributing his racist literature, concluding:

For a New York City police officer to disseminate leaflets tha t trumpet bigoted messages expressing hosti lity to Jews, ridiculing Afric an Americans and attributing to them a criminal disposition to rape, robbery, an d murder, tends to promote the view among New York’s citize nry that those are the opinions of New York’s police officers

. The capacity of such statements to damage the effectiveness of the police departme nt in the community is immense . Such statements also have a great capacity to cause harm within the ranks of the Police Department by promoting resentment, distrust and racial strife between fellow officers. In these circumstances, an individual police officer ’s right to express his personal opinions must yield to the public good. The restricti ons of the First Amendment do not require the New York City Police Department to continue the employment of an officer whose di ssemination of such racist mes sages so risks to harm the Department’s performance of its mission. In the words of Justice Holmes, “A policeman may have a constitutional right to [speak his mind], but he has no constitutional right to be a policeman.” [ Id . at 147, quoting McAuliffe v Mayor of New Bedford , 155 Mass 216, 220; 29 NE 517 (1892) (citations omitted) (emphasis added).]

Similarly, in Locurto v Giuliani , 447 F 3d 159 (CA 2, 2006), the Second Circuit Court of Appeals held that concerns of the NYPD and the New York Fire De partment (FDNY) about potential damage to reputation and potential disruption justifi ed the termination of several former police officers and fire fighters for their participation in a racist parade float. The court explained,

It [is] . . . obvious . . . that police officers and firefight ers who deliberately don ‘blackface,’ parade through the streets in mocking stereotypes of AfricanAmericans and, in one firefighter ’s case, jokingl y recreate a r ecent vicious hate crime against a black man, might well damage the relationship b etween the NYPD and FDNY and minority communities.

* * *

The members of the African-American and other minority communi ties whose reaction to the float the [government] legitimately took into account . . .-22- cannot properly be characterized as ‘outsiders seeking to heckl e [the plaintiffs] into silence’. . . . Rather, effective police and fire service presuppose respect for the members of those communities, and the defendants were permi tted to account for this fact in discipli ning the plaintiffs.

* * *

The First Amendment does not require a Government employer to sit idly by while its employees insult thos e they are hired to serve and protect . [ Id . at 182-183 (quotation marks and citations omitted) (emphasis added ).]

Turning to the present case, ini tially, we note that Shirvell appears to contend that the Department had a heightened burden to justify regulating his sp eech because, according to Shirvell, his speech was not directed at criticizing the Department and was “wholly unrelated to his employer.” This argu ment is unpersuasive.

In NTEU , 513 US at 457-459, the Supreme Court addressed whether a fede ral employer could prohibit a low-level employee from receiving payment for speeches that were unrelated to his employment. In rejecting th e prohibition, the Court held t hat, in order to restrict an employee’s speech that “has nothing to do with their jobs,” the employer needed to provide a justification that was “far stronger than mere speculation.” Id . at 465, 475. To the extent that

Shirvell relies on NTEU , that reliance is misplaced. Here, unlike in NTEU , Shirvell engaged in deliberate conduct that irreconcilably linked his speech with h is employer. See Roe , 543 US at 80-81 (holding that NTEU was inapplicable where the pla intiff deliberately linked his s peech to his public employment as a police officer). Specifically, Shir vell sat for televised interviews to defend his speech where he was identified as an assistant attor ney general. Importantly, Shirvell agreed to the interviews desp ite having knowledge that he could be asked about his position as an assistant attorney general. During his first locally-televi sed interview, Shirvell was identified as an assistant attorney gener al and was asked questions about his position within the Department. Nevertheless, Shirv ell subsequently agreed to two additional interviews with CNN and Comedy Central where he was again identified as an assistan t attorney general and asked about his position with the Department. Although Shirvell refu sed to answer questions about his position, he was inextricably linked to the Department. In agr eeing to the public interviews, Shirvell took deliberate steps th at linked his speech to his em ployer. Accordingly, to the extent

that Shirvell relies on NTEU , we find that reliance erroneous.

In the present case, the Department introduced evidence to sho w that its interests in the effective provision of government al services outweighed Shirvel l’s speech interests. The facts

and circumstances involved in this case are dissimilar to Pickering and Rankin and more akin to Pappas and Locurto . Here, unlike in Pickering and Rankin , the Department introduced evidence during both proceedings that showed that Shirvell’s speech inte rfered with the Department’s internal operations and adversely affected the efficient provis ion of governmental services. The Department received numerous e-mails, telephone calls and lette rs in response to Shirvell’s televised interviews. Department staff members were questioned about Shirvell during unrelated proceedings and the Michigan Civil Rights Commission and the An n Arbor City Council issued resolutions condemning Shirvell’s behavior and questioning the Department’s ability to fulfill its mission. It was clear in both proceedings that Shirvell’s spee ch created a media firestorm which-23- in turn created a public-relations crisis. The Department dedi cated resources to respond to media inquires about Shirvell and ul timately Cox found it necessary t o take time to appear for a nationally-televised interview to defend the Department’s respo nse to Shirvell’s conduct. Furthermore, irrespective of whe ther the 20,000 plus complaints were part of an “organized campaign” by a “Hollywood publicist,” as Shirvell contends, the complaints nevertheless negatively impacted the Department’s internal operations.

Additionally, in the termination letter, the Department stated that Shirvell’s conduct had “caused or has the potential to cause, disruption among members of the Department workforce and could have a negative impact on attracting and retaining th e most qualified employment

candidates.” Evidence introduced at both proceedings supported that Shirvell’s speech had, or was reasonably likely to have, a detrimental impact on close wo rking relationships and harmony among co-workers within the office.

At the grievance hearing, Shirvell testified that after his te levised interviews, “things began to change at the office,” a nd he stated that his relation ship with his superiors was “much different, much different, much d ifferent.” This, of course, i s of no surprise. C learly, Shirvell’s publicity tour created tension within the office. Shirvell’s s uperiors, particularly, Restuccia and Cox, through the public relations department, were forced to de fend the integrity of the Department in general and its ant i-cyber-bullying initiatives i n particular. Ultimately, Cox found it necessary to devote time to appear on CNN to defend the Depa rtment’s integrity. According to Cox, Shirvell had no concern as to whether his conduct impac ted others within the office. Additionally, Restuccia testified that Shirvell had “lost all s ense of proportion for his role in the office” and was focused on his own political crusade. Restucci a stated that Shirvell became

“more isolated” after the interviews and was involved in a heat ed verbal altercation with his immediate supervisor Beaver, for which he was disciplined. Giv en the tension that Shirvell’s publicity tour created within the office, it was reasonable for the Department to conclude that Shirvell’s present and future re lationships with co-workers wou ld be negatively impaired.

Similarly, evidence at both hear ings showed that Shirvell’s sp eech negatively impacted, or was reasonably likely to negatively impact, close working re lationships and harmony among co-workers. Evidence showed that Shirvell’s conduct placed add ed stress and pressures on his superiors. He was involved in a heated altercation with his im mediate supervisor, Beaver, for which he was disciplined. Furth ermore, the Department could ha ve reasonably concluded that Shirvell’s conduct had the potentia l to detrimentally impact Sh irvell’s working relationships and serve a detriment to the Department’s recruiting efforts. Alth ough there was no evidence to support that Shirvell’s conduct ha d negatively impacted the Dep artment’s recruiting efforts at the time he was terminated, as the Rankin Court explained, it was not necessary for the Department “to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.” Rankin , 461 US at 152. It was reasonable for the Department to conclude that Shirvell’s condu ct could negatively impact the working relationships within the Department in the future. Ind eed, in Pappas , 290 F 3d at 147, the court explained that an o fficer’s dissemination of racist, bigoted print materials had a “great capacity to cause harm within the ranks of the Police Departmen t by promoting resentment,

distrust and racial strife between fellow officers.” Like in Pappas , here, Shirvell’s speech had a great capacity to cause similar harm within the ranks of the De partment by potentially promoting-24- distrust amongst the Department’s present or future gay, bi-sex ual and transgender employees or

recruits.

Evidence also showed that Shirvell’s conduct undermined one of the Department’s specific missions—i.e. the integr ity of its anti-cyber-bullying campaign. By employing an individual such as Shirvell, whose conduct Cox agreed amounted to bullying, the Department undermined its own message. Common evidence in both proceeding s showed that, at the time

Shirvell conducted his televised interviews, the Department had promoted a cyber-bullying initiative and worked to educate children about cyber-bullying. Shirvell’s conduct clearly undermined these initiatives and the Department was forced to d efend the integrity of the initiatives. Shirvell repeatedly attacked Armstrong in the blo g, and, at times, the attacks could reasonably be construed to be directed at Armstrong simply beca use he is gay. Shirvell placed a swastika flag on a photograph of Armstrong’s face, stood outsid e Armstrong’s residence with picket signs, appeared at events that Armstrong attended, and p osted private information about Armstrong’s personal life on the In ternet. Shirvell made numer ous demeaning remarks about Armstrong, likening him to a Nazi and a member of the KKK, refe rring to him as “Satan’s representative” on the MSA, and a “privileged pervert.” Shirve ll referred to Armstrong, a male, in the feminine gender when he likened Armstrong to a “handmaid en” presumably because of Armstrong’s sexual orientation. Cox stated that Shirvell was “ clearly a bully” who used the Internet to be a bully and engaged in conduct that was “unbecom ing of civil discourse” and “unbecoming of common courtesy.” Given the nature of Shirvell’ s speech and speech-related activities, it was reasonable for the Department to conclude inits termination letter that Shirvell’s conduct either damaged or had the potential to damag e the public’s perception in its ability to “conduct its operations and mission.”

Moreover, Shirvell’s speech and related conduct damaged both S hirvell’s ability to perform his responsibilities and the Department’s overall abili ty to perform its mission. Critically, in this case, unlike the employee in Rankin , Shirvell’s position as an assistant attorney general required him to make public appearances in court as a r epresentative for all the state’s citizens. The Department, as the chief law enforcement agency in the state, represents allof the citizens of Michigan irrespective of race, gender, sexual orientation, religion, or creed. See, MCL 14.35. It has a legitimate interest in facilitating the “r espect and trust of the community” and in advancing “the perception in the community that it enfor ces the law fairly, even-handedly,

and without bias.” Pappas , 290 F 3d at 146-147. Indeed, like the public entities in Pappas and

Locurto , the Department’s effective provision of services, “presuppose [s] respect for the members of [minority] communities . . . ” including gay individuals. Locurto , 447 F 3d at 183. Irrespective of his attempts to disassociate his role with the Department from his “campaign” against Armstrong, Shirvell’s c onduct reasonably could have cre ated the impression that neither he nor the Department enforced t he law in a fair, even-handed m anner without bias. Shirvell was a representative of the Department who appeared in court on beh alf of the Attorney General and on behalf of the citizens of Michigan. By appearing on local a nd national television defending speech and conduct that could reasonably be construed as bigote d and homophobic as well as engaging in stalking-like behavior while at the same time being identified as an assistant attorney general, like the officers in Pappas , Shirvell first created, then p erpetuated the impression that his opinions were the opini ons of the Department. See Pappas , 290 F 3d at 147.-25- For these reasons, it was reasonable for the Department to con clude in the termination letter that Shirvell was unable to perform his duties as an ass istant attorney general. Particularly, the Department could have reason ably concluded that Shirvell co mpromised his ability to appear in court as a representative of the entire citizenry of the sta te when, in the words of Restuccia, Shirvell had lost all credibility and had become the “paradigm of the bigot.” And, although Shirvell argues that he was assigned to summarize a gay-marriag e case and performed the task well, the assignment occurred before the media firestorm had fu lly erupted and it did not involve a public court appearance. Certain ly, after Shirvell engaged i n multiple media interviews defending the blog, it would be difficult for Shirvell to credi bly appear in court as a representative of the entire citizenry including segments of th e population including gays or

victims of harassment and stalki ng. The evidence presented in this case clearly supported the Department’s conclusion that Sh irvell could no longer perform t he duties of an assistant attorney general.

Shirvell’s conduct also jeopardiz ed the Department’s ability t o effectively perform its overall mission—i.e. chief legal enforcement agency for the ent ire citizenry of the state. Despite Cox’s efforts to disavow Shirvell’s statements, Shirvell’s crus ade created the appearance that the Department could not fairly repres ent the interests of gays or victims of harassment or stalking. If the Department were to appear to treat these segments of the population with contempt or bias, respect for the Department would significantly be diminished no t only within the legal profession, but also within the wider public as a whole. Thus, similar to the interests of the

officers in Pappas and Locurto , here, Shirvell’s “right to express his personal opinions must yield to the public good.” Pappas , 290 F 3d at 147. The First Amendment did not require the Department to preserve the employment of an individual whose co ntinued harassment and stalking of a minority and disse mination of bigoted, homophobic statements risked harming the Department’s integrity and its mission. Id

.

Indeed, this case is very similar to Pappas . Like the officer in Pappas , who initially

disseminated racist literature an onymously, here, Shirvell init ially maintained his blog anonymously. Like the offensive content in Pappas , here, Shirvell’s blog contained offensive content that gave rise to a media firestorm. The governmental concerns noted by the court in Pappas apply with equal force here. When an employee of the Departme nt disseminates bigoted, homophobic speech, and then trumpets that speech in a media parade, such conduct “tends to promote the view among [Michigan’s] citizenry” that “ those are the opinions” of the Department. Pappas , 290 F 3d at 147. The First Ame ndment did not require the Dep artment to “sit idly by while its employee[] insult[ed] those [he was] hir ed to serve and protect.” Locurto

, 447 F3d at 183.

In sum, in both proceedings the Department met its burden to p rove that its interests in the efficient provision of public services outweighed Shirvell’ s speech interests. Pickering , 391 US at 563. Accordingly, Shirvell’s speech was not protected un der the First Amendment for-26- purposes of these proceedings and neither the termination nor t he denial of unemployment

benefits offended the constitution. 12 Id

.

B. JUST-CAUSE FO R TERMINATION

In Docket No. 316146, Shirvell argues that the circuit court e rred in affirming the Commission’s ruling that the Depa rtment had just-cause to termi nate him.

In order to discipline an employee protected by the civil serv ice rules, the employer must have “just cause.” Civ Serv R 2-6.1(a). “Just cause includes . . . [c]onduct unbecoming a state employee.” Civ Serv R 2-6.1(b). Permissible discipline includ es “[d]ismissal from the classified service.” Civ Serv R 2-6.1(c). Although discipline should gen erally be progressive, “if an infraction is sufficiently seri ous, an appointing authority has the discretion to impose any penalty, up to and including dism issal, provided the penalty is not arbitrary and capricious.” Civ Serv R 2-6.1(d).

In this case, Shirv ell was dismissed fo r conduct unbecoming a state employee. The CSRs do not define the phrase “conduct unbecoming a state employee,” nor do the parties cite any binding authority interpreting the phrase. Random House Webster’s College Dictionary (2000) defines “unbecoming” as “detracting from one’s appearance, char acter, or reputation; unattractive or unseemly.” Consistent with this definition, th e New Jersey Supreme Court has defined the phrase “conduct unbecoming,” as “an elastic one that has been defined as any conduct which adversely affects the morale or efficiency of the bureau . . . [or] which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services.” Karins v City of Atlantic City , 152 NJ 532, 554; 706 A 2d 706 (1998) (quotation marks and citations o mitted). We find this definiti on aligns with the commonlyunderstood meaning of the term as set forth in the dictionary a nd it encompasses conduct that the CSRs intended to discourage. Therefore, we adopt the definitio n set forth in Karins as our own and hold that, “conduct unbecoming a state employee” encompasse s any conduct that adversely affects the morale or efficiency of the governmental entity or tends to adversely affect public respect for state employees a nd confidence in the provision of governmental services. Id

.

In this case, evidence at the g rievance hearing supported thatShirvell engaged in conduct unbecoming a state employee in t hat his speech and speech-relat ed conduct undermined his professional character and reput ation, adversely affected the D epartment’s internal operations, and had a tendency to destroy public respect for the Department and confidence in the Department’s ability to provide services. Id . Here, Shirvell was an assistant attorney general. Generally speaking, the attorney general represents the State o f Michigan, the governor, the secretary of state, and the trea surer or the auditor general. MCL 14.28; MCL 14.29. In addition, as an elected official, the Attorney General is a representativ e of the entire citizenry of the state. The Attorney General is obligated to give his or her opinion on all questions of law submitted by the Legislature, the governor, th e auditor general, the treasur er, or any other state official. MCL

12 Given our resolution of the First Amendment issue, we need not address the Department’s argument in Docket No. 314223 regarding preclusion.-27- 14.32. Further, the Attorney General has supervisory powers ov er the prosecuting attorneys in this state. MCL 14.30. The Attorney General is permitted by s tatute to appoint assistant attorneys general who may “appear for the state in any suit or actions before any court or administrative body, or before any grand jury, with the same po wers and duties and in like cases as the attorney general.” MCL 14.35. Accordingly, it is reaso nable that as a legal representative of the State of Michigan, the c onduct of an assistant attorney general should be held to a higher

standard than the ave rage private citizen.

Shirvell failed to adhere to this standard when he engaged in conduct that brought disrepute to himself and the Department. As discussed above, S hirvell directed numerous personal attacks at Armstrong a nd Armstrong’s acquaintances, at tacks that his superior, Cox, characterized as “unbecoming of c ommon courtesy” and “unbecomin g of civil discourse.” Some of the attacks could reasonably be construed to have been direc ted at Armstrong at least in part because of Armstrong’s sexual orientation. Shirvell equated Ar mstrong with the KKK and the Nazis. He accused Armstrong of e ngaging in casual “gay sex,” h osting “gay orgies” in his dorm, and accused him of being racist and an elitist. Shirvell poste d comments identifying individuals as gay and accused individuals of having sexual relations with Armstrong. In doing so, Shirvell

showed no concern fo r Armstrong’s privacy a nd he identified ind ividuals as gays who previously

had not announced their sexual or ientation. Shirvell freely admitted to contacting Representative Pelosi’s office to speak against Armstrong. Furthermore, he ad mitted that he called the police to Armstrong’s home, took photographs of their arrival at the home , and then posted a blog entry declaring that the police “raide d” Armstrong’s party presumably in an attempt to convey that Armstrong was caught engaging in criminal activity. Additional ly, Shirvell appeared on television interviews defending his conduct and the media fires torm and public backlash that followed was neither beneficial to the Department’s reputation nor the Department’s internal operations. The nature of Shirvell’s conduct certainly had a t endency to destroy public respect and confidence in both Shirvell individually and the Department in general. Karins , 152 NJ at 554. As discussed above, Shirvell’s conduct tended to suggest that neither he nor the Department could enforce the law in a fair and even-handed mann er and the Department could reasonably have concluded that Shirvell could no longer credibl y represent the entire citizenry of the state. Shirvell cast himself and the Department in a negat ive light and he evinced a disregard for the negative effects that his conduct had on the Department . In doing so, Shirvell engaged in conduct unbecoming a state employee.

In sum, the circuit court applied the correct legal principles and did not misapprehend or grossly misapply the substantial evidence test when it conclude d that there was competent, material, and substantial eviden ce on the record to support the Commission’s determination that Shirvell engaged in conduct unbecoming a state employee under t he CSRs such that there was just-cause for termination. Polania v State Employees’ Retirement Sys , 299 Mich App 322, 327- 328; 830 NW2d 773 (2013).

Next, Shirvell argues that, even if there was evidence to supp ort the finding that his conduct amounted to “conduct unbecoming a state employee,” his termination was nevertheless arbitrary and capricious.

In the grievance proceeding, the issue before the circuit cour t was whether or not the

Commission’s final decision was au thorized by law and supported by competent, material, and-28- substantial evidence on the whole record. Const 1963, art 6, § 28. Relevant to this issue, a decision is unauthorized by law if it is in violation of a stat ute or the constitution or if it is arbitrary and capricious. Northwestern Nat’l Cas Co v Comm’r of Ins , 231 Mich App 483, 488; 586 NW2d 563 (1998). A decision is arbitrary if it is “fixed o r arrived at through an exercise of will or by caprice, without consideration or adjustment with re ference to principles, circumstances or significance.” Mich Farm Bureau v Dep’t of Environmental Quality , 292 Mich App 106, 141; 807 NW2d 866 (2011). A decision is “capricious” if it is “apt to change suddenly, freakish or whimsical.” Id

.

Shirvell argues that irrespectiv e of the First Amendment issue s, the decision to discharge him was arbitrary and capricious. He contends that Ondejko was biased and conducted his investigation with a preconceive d notion that Shirvell would be discharged. In support of his claim, he asserts that Ondejko r ead the blog before his investi gation and found it was merely an attack on Armstrong’s sexuality; he had discussed the case with his family; his daughter issued an outrageous public message indicating that Ondejko had been “ swamped” with the case and expressing relief that “Michiga n’s gay-bashing, student-stalkin g assistant AG” was fired.

Shirvell also contends that O ndejko spoke with Armstrong’s atto rney about the matter both before and after completing his internal investigatory report. Shirvell further asserts that Ondejko perjured himself at the hearing by testifying that Shirvell posted blog entries on state time using state resources, which he was forced to admit on cro ss-examination was a mistake.

The circuit court determined tha t Shirvell provided no evidence in support of his assertion that the result of the investig ation was pre-ordained.

Our review is limited to determining if the circuit court “app lied correct legal principles and whether it misapprehended or grossly misapplied the substan tial evidence test to the agency’s findings.” Polania , 299 Mich App at 327-328. In this case, the circuit court app lied the correct legal principles, i.e ., the legal standard for what constitutes arbitrary and capricious conduct, to the evidence introdu ced at the grievance hearing.

Bramble testified that the inve stigation was not initially sta rted with the aim of discharging Shirvell. He explained that the Department was “ve ry concerned and wanted to see exactly what happened, hear Mr. Shirvell’s side of the story, a nd then review it within . . . the Civil Service Rules of possible disciplinary actions or counsel ing actions and look at all the different options available.” T o that end, an internal investi gation was launched, a multiple-hour disciplinary conference was conve ned, and the Department consid ered moving Shirvell to a different position within the Department.

Further, the Department did not rush to discharge Shirvell bec ause of disagreement with his speech. The record shows that the Department knew about th e blog as early as May 16, 2010. The record further demonstrates after learning about the blog, Shirvell’s superiors within the Department discussed with Shirvell the possible ramificatio ns from his words and actions. They tried to persuade Shirvell not to engage in further media discussions. Shirvell chose not to heed their advice. Then, asserting Shirvell’s constitutional g uarantees, his superiors told Shirvell that he was not prohibited from further discussions with the me dia. Of importance was that this decision was expressly based on the Department’s recognition of Shirvell’s First Amendment rights. After Shirvell participated in interviews with nationa l media, Cox initially went on

national television and stated that Shirvell had the right to s ay whatever he wanted regardless of-29- how offensive it may be to a national viewing audience. Thus, the Department clearly did not interfere with Shirvell’s First Amendment rights. Rather, the Department went to great lengths to protect his First Amendment rights. Further, in an effort t o essentially protect Shirvell, his superiors counseled against conducting further media interviews , though this advice was seemingly offered in friendship, and out of a genuine concern f or Shirvell’s future in the law, rather than as an employment directive. The investigation into Shirvell’s conduct began after it became clear that Shirvell’s conduct was interfering with the D epartment’s internal operations. Though Shirvell argues to the contrary, there is no record evid ence to support his factual or legal conclusions. Accordingly, the circuit court applied the correc t legal principles and did not err in finding that the termination was neither arbitrary nor capricio us. Northwestern Nat’l , 231 Mich App at 488.

C. DENIAL OF UNEMPLOYMENT BENEFITS

In Docket Nos. 314223 and 314227, the Department and the UIA a rgue that the circuit court erred in reversing the MCA C’s order affirming the UIA’s f inding that Shirvell was disqualified for unemployment benefits under the MESA.

A person must be eligible to receive unemployment benefits und er the MESA. Initially, an individual must meet certain threshold requirements set fort h in MCL 421.28 such as, among other things, filing a claim for benefits and seeking employmen t. See e.g. MCL 421.28(1)(a), (b), (c); Braska v Challenge Mfg Co , ___Mich App___; ___NW2d___(2014) (Slip op. at 7). However, even if an individual meets the threshold requirements in MCL 421.28, he or she may nevertheless be disqualified from receiving benefits under MCL 421.29, which provides in relevant part as follows:

(1) [] [A]n individual is dis qualified from receiving benefits if he or she:

* * *

(b) Was suspended or discharged for misconduct connected with the

individual’s work . . . . [Emphasis added.]

Although the statute does not define the term “misconduct,” ou r Supreme Court has

construed the term as follows:

The term misconduct, as used in connection with disqualificati on of an employee for unemployment compensation benefits, is limited to conduct evincing such willful or wanton di sregard of an employer’s inte rests as is found in deliberate violations or disregar d of standards of behavior whi ch the employer has the right to expect of his employee, or in carelessness or negl igence of such degree or recurrence as to mani fest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his em ployer. . . . [ Carter v Employment Security Comm , 364 Mich 538, 541; 111 NW2d 817 (1961) (quotation marks and citations omitted).]-30- A finding of misconduct can be based on a single event or on a“series of derelictions and infractions” that, by themselves, would not rise to the level o f misconduct. Christophersen v

Menominee , 137 Mich App 776, 780; 359 NW2d 563 (1984). Thus, “misconduc t” is “established if the series of acts under scrutiny, considered together , evince a wilful disregard of the employer’s interests.” Id . at 781 (emphasis in original). Furthermore, “Michigan does n ot require that the employee’s conduct arise from his or her offic ial duties, so long as it negatively affects the employer’s interests.” Bowns v City of Port Huron , 146 Mich App 69 , 76; 379 NW2d 469 (1985). Moreover, it is not necessary that the employee in tend the precise consequences of

his or her actions. Bell v Appeal Bd of Mich Employment Security Comm , 359 Mich 649, 652- 653; 103 NW2d 584 (1960).

This Court has previously addressed whether off-duty conduct b y a public employee

amounted to “misconduct” under the MESA. In Bowns , 146 Mich App at 72, the claimant, worked as a patrol officer for the City of Port Huron Police De partment. The department did not have any rules or regulations governing the behavior of off-dut y police officers. Id . During an undercover investigation at a lo cal bar where “sports betting, bookmaking and high stakes poker games” were alleged to be taking place, a detective observed th e claimant playing a hand of poker and socializing with patrons who appeared to be involved in gambling activities. Id . at 72- 73. The claimant did not report the activity to his superiors and he was later terminated for “conduct unbecoming a police officer and for neglect of duty.” Id . at 73. The circuit court affirmed the Michigan Employme nt Security Commission’s ruling t hat the claimant was disqualified for unemployment be nefits because he engaged in “m isconduct connected with his []

work”. Id . at 74. This Court affirmed, explaining, “[t]his Court has re cognized that illegal or improper conduct by employees in positions of public trust may undermin e their ability to function in an official capacity and damage the prestige of the public employer.” Id . at 75 (emphasis added). This Court concluded the claimant committed misconduct connected with his job where his “off-duty association with, and limited participa tion in, gambling activities . . . seriously interfered with his emp loyer’s interests” and “cast acloud over his ability to maintain public trust. . . .” Id . at 77-78.

In this case, review of the entire record from the unemploymen t compensation hearing shows that there was competent, material, and substantial evide nce to support that Shirvell engaged in misconduct under the MESA. When viewed in totality, Shirvell’s behavior evinced a willful disregard of the Department’s interests and he disregar ded standards of behavior that the Department had a right to expect of him. Carter , 364 Mich at 541.

Of critical importance in this case is that Shirvell was in a position of public trust. He was appointed by the Attorney General, an elected official in a position of public trust, to assist in carrying out the powers and duties of the Attorney General. See MCL 14.35; In re Watson

, 293 Mich 263, 270; 291 NW 652 (1940). The Attorney General is tasked with representing the State and its interests in lega l proceedings and is the chief l aw enforcement office of the State. See MCL 14.28. As an elected official, the attorney general se rves all of the citizens of Michigan, irrespective of race, creed, religion, gender or sexu al orientation. Thus, the Department had a real and substantial interest in maintaining n eutrality and conducting its operations in a non-biased manner; the public actions of its em ployees, therefore, were critical in protecting this interest. Internally, the Department has an in terest in efficiently fulfilling its role, which may include maintaining a harmonious and inclusive work e nvironment, recruiting and-31- hiring top talent and maintaining good client relationships. S hirvell’s public “campaign” against Armstrong undermined all of these interests.

Shirvell’s conduct cast a cloud over both his and the Departme nt’s ability to maintain the public trust and severely tarnish ed the Department’s reputation . Although Shirvell waged his “campaign” during his own time, h e was inextricably linked to the Department. During televised interviews, Shirvell claimed he spoke as a “priva te citizen,” h owever, it was unmistakable that he worked for the Depar tment. Seemingly, what made Shirvell of in terest to the national media was the fact that he was employed bythe Attorney General. Intervi ewers consistently referred to Shirvell as an assistant attorney general and Shirvell was aske d about his position within the Department. Although Shirvell d eclined to answer the questions , the Department was inextricably linked to Shirvell and engulfed in a wellspring of negative publicity. The Department was forced to clarify to the public that Shirvell di d not represent its views, with Cox ultimately sitting for a nationally-televised interview in an a ttempt to distance the Department

from Shirvell.

Evidence presented about the volume of calls to the Attorney G eneral, the large portion of which were decidedly negati ve, supports the finding that Shi rvell’s conduct brought negative publicity to the Department and severely damaged the perception that it served all of the people of Michigan. Additionally, other assistant attorney generals w ere fielding questions about Shirvell’s word and actions from judges throughout the State, c ausing distractions from their

work within the courts.

As noted above, as an elected official, the Attorney General se rves as a representative for the entire citizenry. It was reasonable for the Department to conclude that Shirvell’s conduct made it appear to the public that the Department was unable to fairly represent the interests of all

of the state’s citizens. This was reinforced when the Ann Arbo r City Council and the Michigan Civil Rights Commission passed referendums condemning Shirvell’ s behavior and questioning whether the Department could repr esent the interests of all Mic higan’s citizens. In addition, at the time Shirvell was publically defending his blog, the Department had a cyber-bullying initiative. Despite Shirvell’s contentions to the contrary, it was reasonable for the Department to conclude that Shirvell’s conduct had the potential to damage th e public’s perception in its ability to conduct its operations and missi on where, for example, Shirv ell’s conduct directly undermined its campaign against cyber-bullying. Indeed, Cox admitted duri ng his televised interview that Shirvell was using the Internet t o be a bully. Furthermore, as noted above, it was reasonable for the Department to conclude that Shirvell’s conduct would impair its ability to maintain an inclusive and diverse workplace and recruit the most talented i ndividuals to work for the Department.

Shirvell’s conduct also showed a disregard for the Department’ s interests in maintaining efficiency and good client relationships. As previously stated , the evidence confirmed the Department’s contention that Shirv ell’s behavior had a negative impact on the operations of the Department. An official testified that the Department was “sla mmed” with a “massive amount,” of telephone calls and e-mails e xpressing concerns about Shirve ll’s conduct and his role as an assistant attorney general. Shirvell acknowledged at the heari ng that he was aware the Department was receiving communications from various members of the public pertaining to his blogging activities. Moreover, o ther employees of the Departme nt were questioned regarding-32- Shirvell and his conduct even when they were attending to unrel ated matters. As previously stated, various judges and judi cial staff made inquiries into t he matter and gave “off the cuff opinions” about Shirvell’s conduct . Two public entities passedresolutions condemning Shirvell’s behavior and calling upon the Department to support anti-hate crime and anti-bullying legislation. These resolutions supported the Department’s dete rmination that Shirvell could no longer effectively serve as an as sistant attorney general, as the Department could have reasonably inferred that its relationships with clients would b e damaged and that future clients would object to having Shirvell r epresent their interests. In short, Shirvell’s conduct negatively impacted the Department’s ability to maintain efficiency and su pported the Department’s

conclusion that Shirvell was unfit to continue in his role as arepresentative of the Department.

Furthermore, other factors played a part in the termination. At the same time Shirvell was caught in a wellspring of negative media attention, he was being disciplined for actions connected with his work. Shirvell received a written reprimand for failing to follow the Department’s media contact policy. Then, he received a two-and -a-half day suspension without pay after a heated argument with his supervisor involving inapp ropriate language and threats. Viewing the record in its totality, it is clear that there was substantial and compelling evidence to support the UIA’s finding that Shirvell engaged in misconduct f or purposes of the MESA and the

circuit court erred i n concluding otherwise.

IV. CONCLUSION

To summarize, we conclude that Shirvell’s speech was not prote cted under the First Amendment for purposes of these proceedings. Although Shirvell may have spoken as a private citizen on a matter of public concern, the Department introduce d evidence at both proceedings to show that its interests in the efficient provision of governmen tal services outweighed Shirvell’s speech interests. Accordingly, neither termination of Shirvell ’s employment nor denial of unemployment benefits offended the constitution. Therefore, in Docket No. 316146 we affirm the circuit court’s order wherein the court properly held that there was competent, material, and

substantial evidence on the whol e record to support that there was just cause to terminate Shirvell and properly held that the termination was not arbitrary or capricious. However, in Docket Nos. 314223 and 314227, we reverse the circuit court ord er wherein the court erred in concluding that Shirvell did not engage in misconduct that disq ualified him for unemployment benefits under the MESA. Shirvell’s speech was not protected a nd there was competent, material, and substantial evid ence introduced at the unemployme nt compensation hearing to support the UIA’s determination that Shirvell engaged in miscon duct such that he was disqualified for benefits under MCL 421.29(1)(b); therefore, re mand for reinstatement of the MCAC’s order in that case is appropriate.-33- In Docket No. 316146 affirmed; in Docket Nos. 314223 and 31422 7, reversed and remanded for further proceedings consistent with this opinion. A public question being involved, no costs awarded. MCR 7.219(A). City of Bay City v Bay County Treasurer , 292 Mich App 156, 172; 807 NW2d 892 (2011). We do not retain jurisdiction.

/s/ Stephen L. Borrello /s/ Christopher M. Murray

/s/ Peter D. O’Connell