County takes Kiessel case to Supreme Court
The Leelanau County Board of Commissioners last week filed an appeal with the Michigan Supreme Court on one aspect of the long-running and increasingly complex dispute between Leelanau County Sheriff Michael Oltersdorf and several of his deputies.
An attorney representing the county, Bonnie Toskey of Lansing, said this week that an application she filed seeking a hearing before the state’s high court has nothing to do with a federal court lawsuit involving the same parties that is slated to go to trial in October.
The case forwarded last week to the state Supreme Court relates primarily to a question of whether one elected county official, the county prosecutor in this case, has the legal authority under the state Veterans Preference Act to overturn a decision by another elected official, the sheriff, to fire a county employee. That employee is Sgt. James Kiessel of the county sheriff’s office.
Following a 22 minute-long closed session at its regular monthly executive committee meeting last week, the board voted 4-1 to move ahead with the state Supreme Court appeal on Toskey’s advice. District No. 1 commissioner Jean Watkoski cast the lone “no” vote. Absent were board chairman and District No. 4 commissioner Tom Van Pelt, and District No. 5 commissioner David W. “Chauncey” Shiflett.
In March 2009, Sgt. James Kiessel and four other Leelanau County deputies filed a federal lawsuit against the sheriff and the county, claiming that the deputies’ civil rights had been violated. The deputies alleged that their “private” phone conversations on government phone lines in the Law Enforcement Center had unlawfully been recorded and listened to by the sheriff and undersheriff. They alleged that they were retaliated against for their police union activities, and for speaking out against the sheriff.
In 2010, Oltersdorf fired Kiessel and another plaintiff in the federal lawsuit, Deputy Duane Wright, for allegedly violating the rights of a drunken driving suspect and his father. Leelanau County Prosecuting Attorney Joseph T. Hubbell declined to prosecute the case because of problems related to how Kiessel and Wright arrested the suspects.
Because Kiessel is an Army veteran of the Persian Gulf Conflict, attorneys representing him and other deputies in the federal lawsuit called on Hubbell to hold a hearing under the Veterans Preference Act to determine whether Kiessel’s firing was justified.
After holding several days of hearings, Hubbell concluded that Kiessel’s firing was not justified, and 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.
In the meantime, binding arbitration involving the county and the police unions representing Kiessel and Wright were under way regarding their firings. Arbitrators found that Kiessel and Wright were fired without just cause, and both were returned to duty with full back pay and benefits.
Kiessel’s attorneys filed an appeal of Judge Powers’ order vacating prosecutor Hubbell’s ruling. Last month, a Michigan Court of Appeals panel ruled in Kiessel’s favor.
In the latest chapter of the case, the County Board last week decided to appeal the Court of Appeals ruling to the state Supreme Court in Lansing.
Meanwhile, attorneys on both sides of the federal lawsuit that is slated to go to trial in Grand Rapids in October have argued strenuously whether and to what extent any evidence uncovered in Hubbell’s Veterans Preference Act hearing should be admissible in the federal court. Hubbell himself is on a list of witnesses in the federal case.
Earlier this year, one of the county’s attorneys, Christopher Cooke, was openly criticized by U.S. District Court Judge Janet T. Neff, for sending a strongly worded letter to Hubbell about his role in the case that appeared to some to be threatening to Hubbell.
Cooke works with a different law firm than Toskey, who is a partner in the Lansing firm Cohl Stoker Toskey, retained as the county’s “corporate counsel.” Toskey’s firm works under contract for Leelanau and numerous other municipal governments throughout the state.
Cooke is a partner in the Cummings, McClorey, Davis & Acho law firm based in Traverse City which was employed by the county’s insurance carrier to handle the deputies’ federal lawsuit against the county and the sheriff.
“The two cases – the federal lawsuit which Chris Cooke is involved in and the case now heading to the Michigan Supreme Court which I am handling – are two totally separate and distinct cases,” Toskey stressed.
She said she had not coordinated her actions in taking her case to the state Supreme Court with Cooke or any other attorneys involved in the federal case because, she said, the cases are “just not related at all.”
An attorney representing Kiessel in both the federal case and the state Supreme Court case, Bill Rastetter of Leelanau County, did not immediately return an Enterprise reporter’s phone call or reply to an email request for comment on either case.