Appeals court rules Hubbell had authority to hear deputy’s case
Another wrinkle was smoothed out last week in a highly complex and contentious set of legal disputes between Leelanau County Sheriff Michael Oltersdorf and four of his deputies — although the core issues in the fight aren’t anywhere near being resolved.
A Michigan Appeals Court panel concluded that Leelanau County Prosecuting Attorney Joseph Hubbell did have the legal authority after all to hear a case in 2010 under the state Veterans Preference Act involving Sgt. James Kiessel’s firing from the Leelanau County Sheriff’s office.
Kiessel is one of four Leelanau County deputies currently suing the sheriff and Leelanau County in federal court over the sheriff’s and the county’s alleged violation of deputies’ civil rights.
The deputies filed the suit in 2009, complaining that the sheriff and undersheriff recorded and listened to “private” phone conversations the deputies made on government phone lines during duty hours in the county Law Enforcement Center. The deputies also allege that they were retaliated against for speaking out against the sheriff, and for their police union activities.
Back in 2010, the sheriff fired two of the deputies suing him, Sgt. Kiessel and Deputy Duane Wright, for allegedly violating the rights of a drunken driving suspect and his father. In fact, the prosecuting attorney declined to prosecute the suspect and his father following the incident because of irregularities in how they were arrested.
Attorneys for Kiessel, who are also representing him and the other deputies in the federal case, requested in 2010 that the county prosecutor hold a hearing on Kiessel’s case under the state Veteran’s Preference Act. Kiessel is an Army veteran of the Persian Gulf War. The act authorizes county prosecutors to hold such hearings for county employees who are veterans and have lost their county jobs. On the advice of its own “corporate counsel,” the Leelanau County Board of Commissioners unsuccessfully sued Hubbell to prevent him from hearing Kiessel’s case. Shortly after the suit was filed against him by the county, the prosecutor hired his own brother, attorney Dan Hubbell, to defend him. Dan Hubbell subsequently won a local district court case to force the county to pay his legal fees.
After holding a hearing on Kiessel’s firing, the county prosecutor ordered that Kiessel be returned to full duty with back pay and benefits. The County Board then decided to challenge Hubbell’s ruling in local Circuit Court. Judge Thomas G. Power subsequently issued an order vacating Hubbell’s order regarding Kiessel.
Kiessel’s attorneys then filed an appeal, and that appeal came back in Kiessel’s favor last week.
In the meantime, binding arbitration involving the county and the police unions representing Kiessel and Wright were underway regarding their firing. Arbitrators found that Kiessel and Wright were fired without just cause. The two were subsequently returned to duty with full back pay and benefits.
An attorney representing the county, Bonnie Toskey of the Lansing law firm of Cohl, Stoker and Toskey, told the Enterprise last week that she was “extremely disappointed” with the Appeals Court’s decision indicating that Hubbell did indeed have the right to hold the hearing under the Veterans Preference Act.
“I disagree totally with their opinion, and it sets a dangerous precedent allowing one constitutional officer, the prosecutor in this case, to overrule another constitutional officer, in this case the county sheriff.”
Toskey said she believes Judge Power “made the correct ruling” in 2010, “a ruling that is consistent with other cases heard in the state Supreme Court.”
She characterized the Appeals Court’s analysis of the case as “superficial.”
Toskey said she feels the ruling “is ironic in that it’s moot — the arbitrators reinstated the employee, and so the issues at this point are strictly the constitutional conflict. Should the county prosecutor have the ability to reinstate a deputy when it’s strictly the sheriff’s prerogative to confer law enforcement powers on deputies?”
The county now has the option to take the issue up again in local Circuit Court. In addition, the county may appeal last week’s ruling to the state Supreme Court.
Toskey said she expected to discuss the issue with the County Board at an upcoming meeting, likely behind closed doors.
For his part, prosecutor Hubbell said the law is clear.
“The Veterans Preference Act is a peculiar statute which places the county elected prosecutor in the position of ruling on another county elected official’s decision to terminate an employee,” Hubbell said. “After I became aware of the fact it was my statutory obligation to sit as hearing officer over the Sheriff’s decision to terminate Sgt. Kiessel, I resisted the temptation to have a special prosecutor appointed to hear this matter because of the continued litigation involving the parties.
“While I did not seek to be placed in the position to decide this issue, I did not believe it was fair to run from my obligations.”
Bill Rastetter, an attorney who represented Kiessel both in the Veterans Preference Act hearing and who continues to represent deputies in the pending federal court case, declined to comment on the recent Appeals Court ruling — even though he won.
Rastetter said it would be inappropriate for him to comment on the record because the overarching federal court lawsuit is still pending.
Attorneys in that case have been given until the end of the month to send a joint letter to a federal court judge in Grand Rapids explaining what, if anything, they’ve done since earlier this year to resolve the case out of court. According to a “third amended case management order” issued by the judge, the case is slated to go to trial in October.