Gongwer News Service
Volume #49, Report #192, Article #3
Thursday, September 30, 2010

SHIRVELL UPROAR GROWS; GRANHOLM SAYS SHE WOULD FIRE HIM

The controversy over Andrew Shirvell, the assistant attorney general who has mounted a rabid anti-gay attack likening the openly gay president of the University of Michigan student body to Nazis, reached a new crescendo Thursday as Governor Jennifer Granholm declared he should be fired.
 
"If I was still Attorney General and Andrew Shirvell worked for me, he would have already been fired," Ms. Granholm declared in a Facebook posting.
 
But under state law, the authority that hires an employee has the sole power to fire, and in this case, that is Attorney General Mike Cox, who while voicing disgust at Mr. Shirvell's conduct, has refused to fire him, citing his First Amendment right to free speech and state civil service rules Mr. Cox says protect political activity.
 
The movement against Mr. Shirvell seemed to swell Thursday in the wake of his interview on CNN that brought national attention to comments he has made about Chris Armstrong, the first openly gay president of the U-M student government, that include calling Mr. Armstrong "Satan's representative on the student assembly." A Facebook group, "Fire Andrew Shirvell," grew from about 3,000 members to more than 6,000 in a matter of hours.
 
Mr. Shirvell, who works in the appellate division of the Department of Attorney General, is a classified, nonunion represented employee.
 
A review of state civil service rules does not appear to explicitly protect Mr. Shirvell's activities from discipline. The rules on political activity state no activity on government time - and Mr. Shirvell has stated he has not done so. But they also state, "Political activity ... must not conflict with the satisfactory and impartial performance of duties required in the employee's classified position."
 
And the section on discipline says employees can be disciplined, including dismissal, for "Conduct unbecoming a state employee." The rules do not define what would constitute such conduct.
 
Robert McCormick, a labor law professor at the Michigan State University College of Law, said Mr. Shirvell's conduct falls into a murky area of employment law. If Mr. Shirvell was a non-union represented employee in the private sector, an employer could immediately fire him for his conduct.
 
"In this case, the employee is employed by the people of the state of Michigan, essentially," Mr. McCormick said. "He has substantially greater rights than private employees, who have no rights. How far those rights go is a very difficult question to answer."
 
Mr. McCormick said the "conduct unbecoming a state employee" section of civil service rules could be interpreted either way.
 
"That would be in the eye of the beholder," he said.
 
In general, if Mr. Cox wanted to fire Mr. Shirvell, he would have to show that Mr. Shirvell's exercise of his First Amendment rights was having a demonstrable effect on Department of Attorney General operations, Mr. McCormick said.
 
"There's not going to be any precision on this," he said. "I think a reasonable person could decide that it did, and I suppose a reasonable person could decide that it didn't."
 
Mr. Shirvell has a political history with Mr. Cox.
 
In Mr. Cox's 2006 re-election campaign, he was paid $24,503 in salary and expense reimbursements for consulting and other work.
 
Cox spokesperson John Sellek said Mr. Shirvell's main duty was as the campaign scheduler.
 
Asked if Mr. Shirvell's past political work for Mr. Cox would play any role in his job status, Mr. Sellek said, "Of course not. He has to be dealt with, as he is today, as a civil service state employee, with First Amendment protections that come with that status."
 
Mr. Sellek declined to comment on Ms. Granholm's statement that she would fire Mr. Shirvell if she were still the attorney general.