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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

Signing a contract with the Wayne County Building Authority does not make an independent contractor a public officer, said the Michigan Court of Appeals. In <em><a href="http://publicdocs.courts.mi.gov/opinions/final/coa/20170404_c333590_46_333590.opn.pdf" target="_blank" rel="noreferrer noopener">People v. Parlovecchio</a></em>, No. 333590, the prosecution claimed that the defendant—an independent building contractor—could be indicted as “a public employee or person holding public trust under MCL 750.478.”  The Court of Appeals disagreed. Analyzing the relevant statute, the court found that the criminal statute applies only to public officers and to those who owe a “duty created by law” to a state actor.

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In this case, the defendant allegedly willfully failed to complete a project, and the prosecution brought charges for the failure of the project. The prosecution alleged a breach of the duty imposed on the defendant “by State law and/or the Wayne County Charter and/or Wayne County Ordinances.” But a conviction under MCL 750.478 required the prosecution to show 1) that the defendant was a public officer, 2) that a duty was “enjoined by law” and 3) that the defendant “willfully neglected to perform such duty.”

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The court summarily dismissed the notion that the contract made the defendant an employee of the state. The prosecution offered “at most a vague argument to the contrary,” and the court held that the trial court properly found the defendant was not a public employee. The court then focused on the requirement that the defendant be “enjoined by law” to communicate certain information about the project to the county.

Drawing an analogy to a writ of mandamus, the court noted that a writ “can only be issued if a governmental employee or entity ‘had a clear legal duty to perform the [requested] act.’” The court then made clear that such a “legal duty” cannot be imposed by contract. Indeed, no “contract” is “the law,” but rather provides the signatories with remedies “<em>under the law</em>.” Accordingly, a building contract with a county authority does not make the independent contractor a public employee. A contract simply does not impose that legal status and corresponding legal duty on the contractor. Therefore, because the contract with the county imposed no “legal duties,” the defendant could not be convicted under a statute that requires a willful neglect of a legal duty.

In sum, the court said, “As a consequence, defendant has indisputably not been accused of violating any duty that could give rise to criminal liability under MCL 750.478.” It therefore dismissed the charges against the defendant.

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Madelaine C. Lane

Labor and Employment

COA: Contract with the state does not create a legal duty, does not make the contractor a public officer

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COA: Contract with the state does not create a legal duty, does not make the contractor a public officer

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