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Shirvell Strikes Out in Court of Appeals of Michigan

Posted on: January 14th, 2015 by Art Leonard No Comments

Andrew Shirvell, the former assistant attorney general from Michigan who was discharged for his conduct in reaction to the election of an openly gay student body president at his alma mater, the University of Michigan, suffered a double loss in the Court of Appeals of Michigan on January 8.  The Court upheld the denial of his discharge grievance, finding his conduct unprotected by the First Amendment, and also ruled that he was not eligible for unemployment benefits while he was looking for a new job after the discharge.

Shirvell began working as an assistant attorney general in 2007.  In 2010, Chris Armstrong was elected president of the University of Michigan Student Assembly, the first openly gay person to hold that position.  Shirvell was apparently outraged at this development, and he set up a public blog called “Chris Armstrong Watch,” which was dedicated to maligning Armstrong for his “radical homosexual agenda.”  Shirvell called Armstrong a “radical homosexual activist, racist, elitist, and a liar,” according to the opinion for the Court of Appeals by Judge Stephen Borello.  One posting “contained a rainbow flag with a swastika posted next to a photograph of Armstrong’s face with the word ‘resign’ nearby.”  Shirvell also called Armstrong a “privileged pervert,” and made various accusations about Armstrong’s alleged agenda as student body president, including a gender-neutral student housing policy “under which, according to Shirvell, ‘cross-dressing students will not have to share a dorm room with a member of the same sex,'” that he contended would “undoubtedly lead to a massive increase in rapes.”

Amidst many other accusations, Shirvell accused Armstrong of hosting a “gay orgy” and accused him of sexual promiscuity, commented about his “deranged character” and suggested that Armstrong was trying to facilitate “homosexual shenanigans” by gay residents of the university’s dormitories.  Also, during a television interview sparked by publicity stemming from his activities, Shirvell “did not deny that on one occasion he referred to Armstrong as ‘Satan’s representative’ on the student assembly” on a Facebook page.  Shirvell also “appeared outside Armstrong’s residence and at events where Armstrong was present and held protest signs.”

Shirvell’s activities and accusations brought him notoriety, leading to “intense media scrutiny” including appearances on CNN’s Anderson Cooper AC360 program and Comedy Central’s The Daily Show.  During these TV appearances, Shirvell said he was speaking as a private citizen and U Mich alumnus, not in his official capacity as an assistant attorney general, but pressure mounted on then-Attorney General Michael Cox (a conservative Republican and no supporter of gay rights) to do something about Shirvell.  Cox sent an email to CNN and later did an interview with Cooper, in which he explained that Shirvell had a right to express his personal views protected by the First Amendment.  But then the Michigan Civil Rights Commission and the Ann Arbor City Council passed resolutions condemning Shirvell’s behavior and questioning its effect on the ability of the Attorney General’s office to carry out its mission.  In response to Armstrong’s complaints to university officials about Shirvell’s conduct on the campus, the university barred Shirvell from campus briefly.  The Attorney General’s office began to receive negative e-mails and telephone calls about Shirvell.

Finally, Cox had enough.  After a disciplinary hearing, he terminated Shirvell for “conduct unbecoming a state employee,” explaining that Shirvell’s conduct “could reasonably be construed to be an invasion of privacy, slanderous, libelous, and tantamount to stalking behavior unbecoming an Assistant Attorney General.”

Shirvell did not take this lying down.  Applying for unemployment benefits while he looked for new work, he also filed a grievance with the state’s civil service commission.  The Commission found that Cox had just cause to terminate Shirvell, and the circuit court agreed.  The Unemployment Insurance Agency found that he was not entitled to benefits due to the circumstances of his discharge.  Shirvell appealed both rulings.  At first he had some luck on the unemployment benefits, as a different circuit court held that Shirvell’s activities were protected by the First Amendment as free speech so he should receive the benefits, but ultimately both cases came before the Court of Appeals, which ruled against him on both counts.

The court focused first on the First Amendment issue, finding that Shirvell was speaking as a private citizen on issues that might be considered of public concern, and thus his speech might enjoy some protection.  However, the Supreme Court has ruled that even in such circumstances, a public employee may lose First Amendment protection if his speech “impaired discipline by superiors, detrimentally impacted close working relationships, undermined a legitimate goal or mission of the employer, impeded the performance of the speaker’s duties, and impaired harmony among co-workers.”

“In the present case,” wrote Judge Borello, “the Department introduced evidence to show that its interests in the effective provision of governmental services outweighed Shirvell’s speech interests,” showing that “Shirvell’s speech interfered with the Department’s internal operations and adversely affected the efficient provision of governmental services.  The Department received numerous e-mails, telephone calls and letters 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 Ann 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 [the unemployment benefits proceeding and the grievance proceeding] that Shirvell’s speech created a media firestorm which in turn created a public-relations crisis.  The Department dedicated resources to respond to media inquiries about Shirvell and ultimately Cox found it necessary to take time to appear for a nationally-televised interview to defend the Department’s response to Shirvell’s conduct.”  Ultimately, the court found that the complaints “negatively impacted the Department’s internal operations.”

The court found that the notoriety generated by the situation could impede the Department’s ability to recruit “the most qualified employment candidates,” and that Shirvell’s speech “had, or was reasonably likely to have, a detrimental impact on close working relationships and harmony among co-workers within the office.”

In other words, while public employees do not automatically forfeit their right to speak as citizens on controversial matters, a public employer is not required to tolerate the situation if the employee’s speech and related activities makes them a detriment to the office, and the evidence here showed that Shirvell had crossed that line.  Thus, the court found that the Department had met the burden of showing that the adverse impact of Shirvell’s conduct on the department outweighed any First Amendment protection that his speech might otherwise enjoy.

The court found that there was just cause for Cox to fire Shirvell.  The evidence supported the conclusion that his conduct was “unbecoming a state employee in that his speech and speech-related conduct undermined his professional character and reputation, adversely affected the Department’s internal operations, and had a tendency to destroy public respect for the Department and confidence in the Department’s ability to provide services.”  The court pointed out that “as a legal representative of the state of Michigan, the conduct of an assistant attorney general should be held to a higher standard than the average private citizen.”

As to unemployment benefits, the state’s law disqualifies somebody who was “discharged for misconduct connected with the individual’s work.”  Shirvell was arguing that the conduct in question was private and unofficial, but Cox’s internal investigation showed that he was using Department computer equipment for some of the anti-Armstrong activities.  Furthermore, past decisions of the court supported a finding that even off-duty conduct can be disqualifying because it may undermine the ability of a public servant to fulfill his functions in an official capacity.  “When viewed in totality,” wrote Borello, “Shirvell’s behavior evinced a willful disregard of the Department’s interests and he disregarded standards of behavior that the Department had a right to expect of him.”

The court emphasized that an assistant attorney general is “in a position of public trust,” a representative of the state appointed by an elected, politically accountable official, the attorney general. “As an elected official,” wrote Borello, “the attorney general serves all of the citizens of Michigan, irrespective of race, creed, religion, gender or sexual orientation.  Thus, the Department had a real and substantial interest in maintaining neutrality and conducting its operations in a non-biased manner; the public actions of its employees, therefore, were critical in protecting this interest.”  The court found that “Shirvell’s public ‘campaign’ against Armstrong undermined” the Department’s interests by casting “a cloud over both his and the Department’s ability to maintain the public trust and severely tarnished the Department’s reputation.”

Apart from these findings, the court found that Shirvell “received a written reprimand for failing to follow the Department’s media contact policy,” and had suffered a brief suspension without pay “after a heated argument with his supervisor involving inappropriate language and threats.  Viewing the recording in its totality,” wrote Borello, “it is clear that there was substantial and compelling evidence” to support the ruling by the unemployment benefits agency, so the circuit court should not have overturned its denial of benefits.

The court affirmed the grievance ruling and reversed the unemployment benefits ruling.  Judges Christopher M. Murray and Peter D. O’Connell signed Judge Borello’s opinion for a unanimous result.

There is a certain irony in this case, inasmuch as Attorney General Cox was a staunch defender of the state’s ban on same-sex marriage, the state’s appeal of a marriage equality ruling to the 6th Circuit resulted in a reversal of the federal district court’s marriage equality decision, and the state legislature has repeatedly refused to enact a ban on sexual orientation discrimination.  But Shirvell’s conduct went too far even for a state government that is not particularly gay-friendly, and he ultimately paid the price through loss of his job and benefits.

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