Court of Appeals Clarifies Limits of Public Employment Contracts and Retaliation Claims Under the Whistleblower Protection Act
Opinion Published: August 29, 2025 (Gadola, Rick, Yates)
COA Docket No. 366541
Macomb County Circuit Court
Holding: The Court of Appeals affirmed the Trial Court’s grant of summary disposition for Plaintiff’s breach of contract and public policy-based retaliation claims.
Facts: Plaintiff is an attorney who worked as outside counsel for Macomb Township and was hired in 2017 by the Township in a newly created dual position of general counsel and HR director. Plaintiff was supervised by Defendant Dunn. Plaintiff’s contract, which was approved by the Board, provided that all disciplinary action or discharge would be for just cause. In 2018 and 2019, several people voiced concerns regarding Plaintiff’s dual position and requested that the positions be separated to avoid a negative work environment and conflicts of interest.
In 2017, trustee Dino Bucci was indicted on several federal theft and bribery charges and Dunn informed Plaintiff that in 2016, Bucci gave her an envelope of money stating “the developers want you to have this.” Dunn stated she gave the money to people who needed it and to her church. Plaintiff then reported this information to the DOJ.
In January 2020, Dunn emailed township employees to complete anonymous evaluations of Plaintiff and return them to a physical drop box, which indicated that most employees thought Plaintiff was incompetent and unprofessional. Plaintiff asked the township IT department for access to security footage to reveal who placed the anonymous evaluations in the drop box. The following day, Plaintiff sent a confidential email to the Board, disclosing the DOJ report that occurred four months earlier. Dunn then placed Plaintiff on administrative leave. Plaintiff claimed this was because of the email, which Dunn claimed constituted insubordination and blackmail; however, Dunn stated that it was due to the negative evaluations and Plaintiff’s attempt to access the surveillance footage.
An attorney hired by Defendants stated that just cause existed to terminate Plaintiff, and the Board subsequently voted for termination. Plaintiff remained on paid leave due to being entitled to a Loudermill hearing before termination. After this hearing, the Board re-voted and did not decide to terminate Plaintiff’s employment, so he returned to his employment on May 11, 2020, receiving the same pay and benefits. At a board meeting in November 2020, the dual role was dissolved, and Plaintiff did not apply for either role once the separate positions were posted. Plaintiff alleged a violation of the WPA, violation of public policy, breach of contract, retaliation, and denial of due process. All three Defendants moved for summary disposition for the breach of contract, violation of public policy, and retaliation claims, which the Trial Court granted. Plaintiff then moved to set aside the dismissal order, which the Trial Court denied. Each Defendant then moved for summary disposition of Plaintiff’s last claim under the WPA, which the Trial Court granted. Plaintiff appealed.
Key Appellate Rulings:
A just-cause provision of an employment contract cannot bind successor township boards.
In Potter, the Court held that the employment of public officers is a governmental function, and a city council cannot contract with an officer for a term extending beyond that of its own members, in effect preventing their successors from removing the officer and appointing another one. Further, MCL 41.75a states that “the township board may employ a township manager, and other employees as are necessary. They shall serve at the pleasure of the township board.” MCL 41.75a. The Court in this case held that Plaintiff’s contract is void because it deprived the Board of its statutory power to select and appoint a township employee under both MCL 41.75a and Potter. Further, Potter is the controlling authority and directly analogous to the case at hand, and should therefore be applied.
Contracts or any provisions contained within them are void if they are in contravention of public policy.
Terrien held that public policy that my serve to void an otherwise valid contract is limited to the state or federal constitution, Michigan statute, or Michigan common law. The Supreme Court has also more recently held that contract provisions must yield to public policy, which must be rooted in the state or federal constitution, state statute, or common law. A city’s legislative powers are ultimately rooted in the Michigan Constitution. Therefore, holding a contract void as against public policy is consistent with the holding in Terrien and thus allowed.
Where a public policy claim is not factually distinct from a WPA claim, a plaintiff’s exclusive remedy is provided by the WPA.
In Janetsky, the Supreme Court held that the WPA did not provide the exclusive remedy for the plaintiff’s public policy claim because that claim was factually distinct from the WPA claim. However, in the current case, Plaintiff’s public policy claims are not factually distinct from his WPA claim, as all claims referenced and relied on the same general allegations. Therefore, Plaintiff’s exclusive remedy is provided by the WPA.
