STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF OTTAWA ADELINE HAMBLEY, Plaintiff FILE NO: 23-7180-CZ -s- HON. JENNY MoNEILL Sitting by SCAO Assignment OTTAWA COUNTY, a Michigan County: OTTAW COUNTY BOARD OF COMMISSIONERS and; JOE MOSS, SYLVIA RHODEA, LUCY EBEL, GRETCHEN COSBY, REBEKAH CURRAN, ROGER BELKNAP, and ALLISON MIEDEMA, Ottawa County Commissioners in their individual and Official capacities, Defendants. ! Sarah Riley Howard(P58531) David A. Kallman(P34200) PINSKY SMITH, PC Stephen P. Kallman(P75622) Attorney for Plaintiff Jack C. Jordan(P46551) 146 Monroe Center St., Suite 418 Lanae L. Monera(P55604) Grand Rapids, MI 49503 KALLMAN LEGAL GROUP PLLC (616) 451-8496 Attomeys for Defendants [email protected] 5600 W. Mount Hope Hwy. Lansing, MI 48917 (617) 322-3207 [email protected] 's Motion for Preliminary Injunction and Defendant's Motion for Summary Disposition Facts Plaintiff fled a complaint seeking injunctive relief on February 13, 2023, stating that she is employed as a health officer for Ottawa County, and the current board of commissioners, was attempting to demote her to interim health officer, and terminate her employment as a health officer for the county. The Complaint list three counts: declaratory relief that she remains the health officer, reinstate her as the health officer, and termination in violation of public policy.On March 2, 2023 plaintiff fled an ex parte motion for temporary restraining order which was signed by this court. Plaintiff filed an Amended Complaint on March 24, 2023, just a few days before the motion hearing. This Amended Complaint lists five counts — declaratory relief that she is the health officer, reinstate her as the health officer, invalidate a later resolution on February 28, 2023; and relief under the Whistleblower Protection Act. Defendants also filed a motion for summary disposition pursuant to MCR 2.116(C)(7), MCR 2.116(C)(8) and MCR 2.116(C)(10) on March 10, 2023. Plaintiff's motion for preliminary injunction and Defendant's motion for summary disposition were set for hearing on March 31, 2023, Defendants also filed a motion for sanctions and set that for hearing on March 31, 2023. ‘On December 13, 2022, the Ottawa County Board of Commissioners passed a motion to approve and authorize the Board Chairperson and Clerk/Register to sign a resolution to appoint Adeline Hambley as Ottawa County Administrative Health Officer contingent upon (1) approval by the Board of Commissions; (2) confirmation by the Michigan Department of Health and Human Services that she has the required educational certifications and work background; and (8) successfully passing the County's background check process. The motion passed. The board had the resolution in front of them: “Be it Resolved that Adeline Hambley is appointed by the Board as Ottawa County Health Officer upon the Michigan Department of Health and Human Services confirming she has the required educational certifications and work background; and contingent upon successfully passing a background check." ‘The Resolution was signed by the Chairperson and County Clerk. ‘The Plaintiff alleges that she was validly appointed as the Health Officer, as is stated in the Resolution signed by the Board Chairperson and the County Clerk. The Defendants argue that she was not appointed, as the motion had three parts, the first of which is the county approval. The Defendants allege that the prior board illegally removed the first requirement, and that the matter should have retumed to the Board for a vote after the Plaintiff passed therequired MDHHS certification and background checks. They argue that because it did not, she was not appointed as the Health Officer, and her lawsuit should be dismissed. Standard of Review — Summary Disposition Like all motions for summary disposition, motions under MCR 2.116(C)(7) test whether the movant is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A party may support a motion under MCR 2.116(C)(7) with admissible affidavits, depositions, or other documentary evidence. Maiden, 461 Mich at 119. The court must accept the allegations of the complaint as true unless the movant submits contradictory documentation, and the court must review the evidence in the light most favorable to the nonmoving party. Severn v Health Quest Chiropractic, Inc, 319 Mich App 245, 253; 900 NW2d 671 (2017). A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). The court must accept all well-pled factual allegations as true and view them in a light most favorable to the non-movant. It may only grant such a motion where the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. /d. When deciding this question, the court considers only the pleadings. 461 Mich at 119-20. ‘Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Maiden, 461 Mich at 120, The motion must specifically identify the issues in which there are no genuinely disputed material facts and the movant must support the motion with evidence. MCR 2.116(G)(4). The opponent must set forth specific facts showing that there is a genuine issue for trial. Jd, The Court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence of record. Skinner v Square D Co, 445 Mich 183, 161; 516 NW2d 475 (1994). The Court does not assess credibility or determine facts. /d. Rather, the Court reviews the record evidence, makes all reasonable inferences from it and in favor of the non-movant, 3and decides whether a genuine issue of material fact exists to warrant a trial. Skinner, 445 Mich at 161-62, Analysis ~ Summary Disposition The County alleges that the actions of the board in signing the resolution are in violation of the Open Meetings Act. However, the County provides no caselaw to support the assertion that the resolution is void. The language of the motion is: (1) approval by the Board of ‘Commissions; (2) confirmation by the Michigan Department of Health and Human Services that she has the required educational certifications and work background; and (3) successfully passing the County's background check process. The motion passed. The board had the resolution in front of them. The Court has not been provided any authority for this argument. There is no logical reason for the Board to vote twice on this issue. A common sense reading of the motion and resolution, are that the Plaintiff was appointed as the Health Director. Defendant cites Lockwood v. Township of Ellington, 323 Mich App 392 (2018), as the controlling case. However, Lockwood is factually distinctive from the present situation Lockwood involved a meeting held in violation of the Open Meetings Act, as no notice of the meeting was posted as required by MCL 15.265 of the Open Meetings Act (OMA). In this instance, the meeting where the Plaintiff was appointed, was held in compliance with the act. It was properly noticed. A vote was taken to appoint the Plaintiff as the Health Director. The Defendant offers no authority that the words allegedly missing from the resolution are a violation of the OMA, There is no factual dispute that on December 13, 2022, the Ottawa County Board of Commissioners conducted a regularly scheduled meeting of the Board. The required notice for the meeting was published as required by MCL 15.265. There is no factual dispute that the board of commissions had the resolution that was ultimately signed by the board Chair before them at the December 13, 2022 meeting. There is no factual dispute that the minutes from the December 13, 2022, state “Philip Kuyers moved to approve and authorize the Board 4Chairperson and Clerk/Register to sign a resolution to appoint Adeline Hambley as Ottawa County Administrative Health Officer contingent upon 1) approval of the Board of Commissioners; 2) confirmation by the Michigan Department of Health and Human Services that she has the required educational certifications and work background; and 3) successfully passing the County's background check process.” There is also no factual dispute the Board unanimously approved the motion The Defendants argue that the resolution eliminated the first requirement, “approval of the Board of Commissioners” however, that is a misinterpretation of the events. The board approved the appointment of Plaintiff as Ottawa County Administrative Health Officer at the December 13, 2022, meeting by a unanimous vote. The only remaining contingencies at that Point in time were confirmation of by the MDHHS and passing the County's background check process. There is no factual dispute that Plaintiff successfully passed the County's criminal background check. Likewise, there is no factual dispute that the Michigan Department of Health and Human Services determined that Plaintiff met the educational certifications and work background. Accordingly, as a matter of law, Plaintiff was duly appointed as the Ottawa County Health Director. As such, the Defendants are required to follow MCL 46.11(n) in order to terminate the Plaintif. The Defendant's Motion under MCR 2.118(C)(7) fails as the Court must accept the allegations in the complaint as true, unless the Defendants submits contrary documentation. The Plaintiff has shown that she is the duly appointed Health Officer. The Plaintiff alleges that they have acted to treated her as the “interim” health director, and have taken actions to appoint another director. The Defendant's Motion under MCR 2.116(C)(8) fails as the Plaintiff was appointed as the Health Officer. The complaint lays out specific allegations and facts which, for purposes of a Motion for Summary Disposition, are accepted as true and in light most favorable to the Plaintiff.The Defendant argues that the Plaintiff was not the appointed as the health director, which the Court has found not to be true The Defendant's Motion under MCR 2.116(C)(10) also fails. The Defendant alleges that there is not a genuine issue of material fact the Plaintiff was not duly appointed as the Administrative Health Director. However: for the reasons stated above, Defendant's motion for summary disposition is denied. Furthermore, when the Court determines the non-moving party is entitled to judgment, the Court may properly enter Summary Disposition for the non-moving party. See MCR 2.116(I)(2) and Sharper Image Corp. v. Dept of Treasury, 216 Mich App 698 (1996). There is no genuine issue of material fact the Ottawa County Board of Commissioners unanimously voted to approve hiring Plaintiff as Administrative Health Director at the December 13, 2022 meeting. There is no genuine issue of material fact the Plaintiff passed the County's criminal background check and there is no genuine issue of material fact the Plaintiff was approved by the Michigan Department of Health and Human Services to begin working as the Ottawa County Administrative Health Director effective December 21, 2022. Accordingly, Plaintiff is entitled to judgment as a matter of law that she is the duly appointed Administrative Health Director, Standard of Review — Preliminary Injunction Under MCR 3.310, the party seeking a preliminary injunction carries the burden of satisfying to the court that a preliminary injunction should be issued. In making that determination trial courts are guided by four common factors as stated in Detroit Fire Fighters Ass'n IAFF Local 344 v. City of Detroit, 482 Mich 18,34 (2008) (1) The moving party made the required demonstration of irreparable harm; (2) the harm to the applicant absent such an injunction outweighs the harm it would cause to the adverse party: (8) the likelihood that the party seeking the injunction will prevail on the merits, and (4) the harm to the public interest ifthe injunction is issued If the moving party meets her burden, then the Court most follow MCR 3.310(A) and a trial must be held within six months after the injunction is granted. 6Analysis ~ Preliminary Injunction The Plaintiff argues that she is legally the health officer for Ottawa County. Under MCL 46.11(n), the board may " remove an officer or agent appointed by the board if, in the board's opinion, the officer or agent is incompetent to execute properly the duties of the office or if, on charges and evidence, the board is satisfied that the officer or agent is guilty of official misconduct, or habitual or willful neglect of duty, and if the misconduct or neglect is a sufficient cause for removal. However, an officer or agent shall not be removed for that misconduct or neglect unless charges of misconduct or neglect are presented to the county board of. ‘commissioners or the chairperson of the county board of commissioners, notice of the hearing, with a copy of the charges, is delivered to the officer or agent, and a full opportunity is given the officer or agent to be heard, either in person or by counsel.” The plain language of the statute indicates that a Health officer must be either incompetent or engaging in misconduct or neglect of duty. None of that has been alleged in this case. As such, if the board is attempting to remove her without following the law, the Plaintiff would suffer irreparable harm The harm to the Plaintif, if the Board removes her, as opposed to the harm to the County, is significant. The Plaintiff would be out of her position, whereas the Board clearly needs to follow MCL 48.11(n), if they wish to remove her. The Board's actions in its first meeting, by calling Plaintiff “interim” and by appearing to hire another individual, indicate they are likely taking adverse action against her. As Michigan law does not allow for termination of the health director without a showing of incompetence, misconduct or willful neglect of duty, the Plaintiff is likely to prevail on the merits. As for the harm to the public, the public health director has specific obligations under Michigan law. The role is understandably important, as public health includes everything from safe drinking water, to clean restaurants, infectious diseases, and other public health risks. The entire code is focused on the “protection of the health, safety and welfare of the people.” MCL 333.1111. The public is harmed when the law is not followed in terminating a heath director. Therefore, the Plaintiff's Motion for a Preliminary Injunction is granted. The order entered by the Court on March 2, 2023, is continued until trial on this matter. No security is required from 7under MCR 3.310 as there are minimal damages to the Defendants if Plaintiff is not successful on the merits of her complaint. She is currently working at the Health Officer and the Defendants have not indicated any problems or issues with her performance. MOTION FOR SANCTIONS The Defendant's also filed a Motion for Sanctions pursuant to MCR 1.109 and MCL 600.2591 on March 10. 2023. The Court does not find that the Complaint was issued for any improper purpose and is not frivolous. No evidence was presented that the litigation was instituted to harass or injure the Defendants. The Complaint is well grounded in fact and law. As the Court has ruled in the Plaintif's favor, this motion is denied. STAY Defendant's requested a stay of these proceedings if their motion for summary disposition was not granted. The Defendant's request for a stay is denied. Dated: April 14, 2023