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A Better Partnership
January 11, 2015

COA upholds former Assistant Attorney General’s just-cause termination for public anti-gay remarks

In a case that has garnered immense public scrutiny, former Michigan Assistant Attorney General Andrew Shirvell appealed his termination after participating in numerous high-profile television interviews denouncing then president of the University of Michigan’s Student Assembly, Chris Armstong, as a “racist liar,” who used his position to promote his “radical homosexual agenda.”  In Shirvell v. Dep’t of Attorney General, Nos. 314223, 314227, and 316146, the Michigan Court of Appeals affirmed the trial court’s decisions upholding Shirvell’s termination and reversed the trial court’s determination that his actions did not amount to misconduct sufficient to disqualify him for unemployment benefits. 
 
The acts serving as the basis for Shirvell’s termination began in the summer of 2010 when Shirvell began publishing an anonymous blog entitled the “Chris Armstrong Watch.”  The blog contained various postings concerning Armstrong, his sexual orientation, and his “radical homosexual agenda.”  In addition to the blog where, among other things, Shirvell accused Armstrong of hosting a “gay orgy” and “outed” another private individual, Shirvell also appeared outside Armstrong’s residence, prompting Armstrong to seek a Personal Protection Order.  Shirvell then appeared on local and national news programs including Anderson Cooper AC360 and The Daily Show to defend the blog.  After these appearances, the Department of Attorney General (the “Department”) received over 22,000 emails, over 150 letters, and 940 phone calls, nearly all criticizing Shirvell’s conduct.  The media also used the content of Shirvell’s blog to question the Department as to its commitment to an anti-cyber-bullying policy it was pushing at the time.  The maelstrom of media attention forced the Attorney General himself to appear on national news to defend the integrity of his office.  These actions ultimately led to Shirvell’s termination for “conduct unbecoming a state employee.”
 
After his termination, Shirvell filed both a grievance challenging the grounds for his termination and a claim to recover unemployment benefits.  The trial court upheld Shirvell’s termination finding that his off-duty conduct damaged the Department’s reputation, invited questions concerning the Department’s cyber-bullying initiative, and resulted in two public organizations issuing resolutions condemning Shirvell’s actions and questioning the Department’s ability to carry out its mission.  The trial court, however, found Shirvell was entitled to unemployment benefits as his conduct constituted constitutionally-protected speech.
 
In consolidated appeals, the Court of Appeals affirmed the circuit court’s decision upholding Shirvell’s termination, and reversed the circuit court’s decision granting unemployment benefits.  The Court held that the Department had met its burden, proving that its interests in the efficient provision of public services outweighed Shirvell’s speech interests.  Accordingly, the Court held Shirvell’s speech was not protected under the First Amendment for purposes of these proceedings.  Because Shirvell’s speech was not protected, the Court held there was substantial evidence Shirvell engaged in misconduct such that he was disqualified from receiving unemployment benefits under Michigan law.
 

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