text:
    BENNETTS v STATE EMPLOYEES RETIREMENT BOARD
    Docket No. 45422.
    Submitted January 4, 1980, at Lansing.
    Decided February 21, 1980.
    Walter E. Bennetts was employed by the Gogebic County Road Commission for over 21 years. Four years later he was reemployed by Gogebic County as director of the county welfare department where he served for over eight years or until the county welfare department was merged into the State Department of Social Services by law. Thereafter he was with the State Department of Social Services until his retirement in 1976. Upon retirement, Bennetts was granted a retirement allowance from the State Employees’ Retirement System for the eleven plus years he had served with the State Department of Social Services. Bennetts was granted a hearing under the Administrative Procedures Act. The administrative law judge ruled Bennetts was not entitled to any credit for service with the road commission or the county department of social welfare. Bennetts appealed to the Ingham Circuit Court, Thomas L. Brown, J. The court modified the administrative order by giving credit for plaintiffs service with the county welfare department. Credit for plaintiff’s prior service with the county road commission was denied on grounds that the Social Welfare Act which merged employees of a county department of social services with the state department of social services was not ambiguous. The merger statute provides that a retired member shall receive retirement system service credit for the period of service under the county department of social services if the employee withdraws all rights in and to any pension benefit he may be eligible to receive under a county pension plan. As a result of the trial court’s decision, plaintiff is receiving monthly retirement benefits from both the county and the state for a combined monthly benefit of $377.26. He would receive $957.04 if all of his county service could be credited to the state retirement system. He would receive some $850-900 per month from the county if the merger statute had not been enacted. Plaintiff appeals. The question presented on appeal is whether plaintiff is entitled to receive credit for retirement purposes for all his service with the county, or whether only his service in the county welfare office may be credited. Held:

      References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes §§ 145, 146, 194.
    [2] 73 Am Jur 2d, Statutes §§ 155-160.
    [3] 2 Am Jur 2d, Administrative Law § 241.
    Supreme Court’s view as to weight and effect to be given, on subsequent judicial construction to prior administrative construction of statute. 39 L Ed 2d 942.
    [4] 73 Am Jur 2d, Statutes §§ 154, 274-276.
    [5] 73 Am Jur 2d, Statutes §§ 204-208.
    [6] 73 Am Jur 2d, Statutes §§ 260, 263, 264.

      1. The merger statute, literally read, requires plaintiff to surrender all rights to over 30 years of earned pension credit in order to gain 8-3/4 years of pension credit. The two statutory provisions are sufficiently ambiguous and incompatible to raise questions as to what the Legislature really intended. Extrinsic aids, which show the purpose and object of a bill, may be employed by courts to determine legislative intent. A memorandum from the State Personnel Director to the Governor and analyses prepared for legislative guidance clearly indicate that any employee involved in the county-state merger should receive credit for all of his or her service rendered to the county.
    2. Consistent application of the merger statute and amendments which do not indicate that defendant’s interpretation was in error does not restrict judicial intervention. Nothing in the testimony or record shows that the merger statute has ever been formally construed on the issue presented. Therefore, contrary to defendant’s assertion, the Court of Appeals is not bound to give respectful consideration to any longstanding administrative interpretation of the statute.
    3. Statutes are not to be interpreted so as to cause a hardship or injustice if it can be avoided. A decision which deprives plaintiff of roughly 50% of his monthly benefits does cause an unnecessary hardship.
    Reversed.
    1. Statutes — Judicial Construction — Legislative Intent — Purpose and Objectives.
    Judicial construction is precluded where the language of a statute is plain and unambiguous; however, where a statute is found subject to two or more interpretations, legislative intent may be found by looking to the purpose and objectives sought to be accomplished.

      2. Statutes — Judicial Construction — Legislative Intent — Extrinsic Aids.
    Legislative intent may be determined by looking to extrinsic aids showing the object sought to be achieved and the problem to which the bill addresses itself.
    3. Statutes — Judicial Construction — Administrative Interpretation.
    Longstanding construction given to a statute by those entrusted to administer it is entitled to great respect.'
    4. Statutes — Judicial Construction — Spirit and Purpose — Strict Letter.
    The spirit and purpose of a statute must prevail over its strict letter.
    5. Statutes — Judicial Construction — Literal Interpretation — Legislative Intent.
    A statute should not be interpreted literally where á literal interpretation leads to a result clearly contrary to the legislative intent.
    6. Statutes — Judicial Construction — Hardship or Injustice.
    Statutes should not be interpreted so as to cause a hardship or injustice if it can be avoided.

      Fraser, Trebilcock, Davis & Foster, P.C. (by David E. S. Marvin), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Felix E. League, Assistant Attorney General, for defendant.
    Before: Allen, P.J., and V. J. Brennan and Mackenzie, JJ.
   Per Curiam.

In this appeal we are asked to interpret 1976 PA 227 relating to retirement options for those county welfare department employees who became state employees when the county welfare system was merged into the state system. The precise question raised is whether such an employee is entitled to receive credit for retirement purposes for all his service with the county, or whether only his service in the county welfare office may be credited. In the case before us, plaintiff was employed by the Gogebic County Road Commission for 21 years, 9 months and 21 days. Four years later he was reemployed by Gogebic County as director of the county welfare department where he served 8 years, 8 months and 21 days until the department was merged into the State Department of Social Services. Thereafter, plaintiff served 11 years 3 months and 19 days as an employee of the State Department of Social Services until his retirement July 10, 1976.

Upon retirement, plaintiff was granted a retirement allowance from the State Employees’ Retirement System for only his 11 years, 3 months and 19 days served with the State Department of Social Services. Plaintiff was granted a hearing under the Administrative Procedures Act at the conclusion of which the administrative law judge ruled plaintiff was not entitled to any credit for service with the county road commission or the county department of social welfare. Appeal was taken to the Ingham County Circuit Court which, after receiving briefs from both parties and hearing oral argument, issued an opinion April 20, 1976, modifying the board’s order by giving credit for plaintiff’s service with the county welfare department. Credit for plaintiff’s prior service with the county road commission was denied on grounds that the statute was not ambiguous.

"The petitioner urges the court to find the language of 1976 PA 227 ambiguous and to then construe the statute in a manner to allow a retiree who was merged with the state system by virtue of the Social Welfare. Act, 1965 PA 401, MCLA 400.1 et seq.; MSA 16.401, et seq., to claim service credit for previous years of county employment in departments other than the county department of social services.

"However, the statute which states that members who have been merged with the state system 'shall receive retirement system service credit for the period of service under the county department of social services’, cannot be ignored. The fact that the statute requires a member to make an election to 'withdraw all rights in and to any pension benefit he may be eligible to receive under a county pension plan’ does not necessarily give rise to the conclusion that the wording of the statute was an oversight and not reflective of the legislature’s true intent.”

As a result of the trial court’s opinion, plaintiff is now receiving $194.51 per month retirement benefits from the state and $182.75 per month retirement benefits from Gogebic County, a combined monthly benefit of $377.26. But if all of his county service could be credited, plaintiff would be entitled to $957.04 per month retirement benefits. Or to state the problem another way — if plaintiff’s service with Gogebic County had not been interrupted by merger pursuant to 1965 PA 401 plaintiff would be drawing retirement benefits from Gogebic County of some $850-$900 per month. From an order entered May 16, 1979, formalizing the trial court’s opinion, plaintiff appeals of right.

1976 PA 227, immediately effective August 4, 1976, reads:

"Sec. 17c. Any member retired on or after January 1, 1975 who is an employee of a county department of social services who was merged and placed under the employment of the state department of social services pursuant to Act No. 280 of the Public Acts of 1939, as amended, being sections 400.1 to 400.122 of the Michigan Compiled Laws, shall receive retirement system service credit for the period of service under the county department of social services if the employee withdraws all rights in and to any pension benefit he may be eligible to receive under a county pension plan, and pays into the state employees’ retirement system a contribution of $600.00 for. each year of service claimed.”

This Court is struck by the inconsistency between the language underscored in solid lines and the language underscored in broken lines above. The two provisions are incompatible. If one is to receive credit only for service while employed with the county social services department, why should one give up not only credits while so employed but in addition surrender credits while employed in other county departments. The statute, literally read, requires plaintiff to surrender all rights to 30-1/2 years of earned pension credit in order to gain 8-3/4 years pension credit. Given the background in which the bill was drafted, is that what the Legislature really intended? We think not. The incompatibility of the two provisions is sufficiently great to raise questions as to what the Legislature really intended. Thus, the statute is ambiguous and is distinguishable from the situation in Curtis v Michigan Public School Employees Retirement System, 10 Mich App 508; 159 NW2d 889 (1968), a case upon which defendant strongly relies.

Where the language of a statute is plain and unambiguous, judicial construction thereof is precluded. Lansing v Lansing Twp, 356 Mich 641, 648-649; 97 NW2d 804 (1959). But where, as here, the statute is found subject to two or more interpretations, legislative intent may be found by looking to the purpose and objectives sought to be accomplished. Davis v Board of Education of School District for The City of River Rouge, 73 Mich App 358, 363; 251 NW2d 585 (1977). Legislative intent may be determined by looking to extrinsic aids showing the object sought to be achieved and the problem to which the bill addresses itself. Consumers Power Co v Big Prairie Twp, 81 Mich App 120, 156-157; 265 NW2d 182 (1978). In the instant case, two extrinsic aids are supportive of the interpretation urged by plaintiff. A memorandum from Richard Ross, State Personnel Director, to Governor Milliken, dated December 30, 1975, describes the bill’s purpose as follows:

"1. What is the purpose of the bill?

"This bill amends the State Retirement Act to allow former county employees who were mandated into state service in the Department of Social Services the opportunity to purchase years of service credit for each year of county service. The employee must forfeit all rights to any pension benefit they may be eligible to receive under a county pension plan.” (Emphasis supplied.)

The second extrinsic aid indicative of the Legislature’s intent are two bill analyses prepared for legislative guidance while the bill was being considered by the Legislature.

"The Apparent Problem to Which the Bill Addresses Itself:

. "Under a 1965 amendment to the Social Welfare Act (Public Act 401 of 1965) which provided for the merger of county social service departments with the state Department of Social Services, many county employees were made state employees. However, no provision was made for the transference of retirement credit to the State Employees’ Retirement System (where an ex-county employee was covered by a county plan), nor was provision made for the purchase of retirement credit by those ex-county employees who were not covered by a county plan prior to the merger. Many persons believe that legislation providing service credit for these employees is still needed and that it would be unfair to continue denying them credit for the public service rendered to counties prior to the merger.” (Emphasis supplied.)

"Argument For:

"The persons who would be affected by the bill are former county employees who were made state employees by law. In many cases, this transfer disrupted an employee’s participation in a county pension plan, forcing him or her to become a member of the State Employees’ Retirement System. It seems only fair to allow such a person to place all of his/her contributions with 1 system and to receive his/her beneñts from 1 source. Other former county employees who were transferred to state employment by law were not covered by any plan prior to transfer. The bill would allow them to receive credit for public service. ” (Emphasis supplied.) It is readily transparent from the language emphasized above that the Legislature intended that any employee involved in the 1965 merger would receive credit for all of his or her service rendered to the county. The fact that all contributions were to be put in one system and credits earned from one source is contra to the interpretation placed on the statute by defendant. Defendant’s interpretation results in two systems.

Having rejected what Justice Frankfurter described as "the tyranny of literalness”, this Court looks to "the persuasive gloss of legislative history” to ascertain legislative intent. United States v Witkovich, 353 US 194, 199; 77 S Ct 779, 782; 1 L Ed 2d 765, 769 (1957). 1976 PA 227 was the legislative response to demands by the Michigan County Social Services Association for legislation correcting the inequity caused by the forced merger of the county welfare system into the state system. The inequity was the reduction in pension benefits which the employee could otherwise ultimately receive from the county had not the transfer been made.

For ten years following the merger, the association sponsored enactment of legislation which would remedy the problem. Walter Bennetts, plaintiff herein, was board member and treasurer of the Michigan County Social Services Association. It is inconceivable that the association or Mr. Bennetts would support legislation giving credit for only a portion of the employee’s county service. Only by authorizing the employee to place all of his/her contributions and receive benefits from one source for all of the employee’s county service would the act prevent the reduction in benefits necessarily resulting from splitting the employee’s contribution between two pension systems. Of the total number of employees working in the county social services departments when the merger occurred, only a very few had prior county service in a department other than the social services department.

Thus, as a practical matter, the statutory mandate to withdraw "all rights in and to any pension benefit he may be eligible to receive under a county pension plan” corrects the inequity for all but the few employees with prior county service. The majority of the employees had no other benefits accrued. However, we perceive the legislative intent as encompassing all employees who in 1965 were employed in the county department of social services. The language mandating withdrawal of all rights to pension benefits to which the employee "may be eligible to receive under a county pension plan” persuades us that the Legislature intended to include all the county social services employees. Further, nothing in the history of the bill or in the legislative analysis even remotely suggests that an exception was intended for those few who had prior county service. What we suspect happened is that in the care taken when drafting the bill to include only county employees then working in the county welfare department and to exclude other county employees, inadvertently, language was used which excluded the very few county social service department employees who had prior service in another county department.

Defendant reminds us that its construction of § 17(c) has been consistently applied since the statute was enacted in 1976, and that though the act has been amended numerous times since then, at no time has the Legislature amended the statute to indicate that defendant’s interpretation was in error. We recognize that the longstanding construction given a statute by those entrusted to administer it is entitled to great respect. Board of Education of Oakland Schools v Superintendent of Public Instruction, 401 Mich 37, 41; 257 NW2d 73 (1977). But nothing in the testimony or records in this case indicates the State Employees’ Retirement Board has ever formally construed § 17(c) on the issue raised here. The chief sponsors of § 17(c), the Michigan County Social Services Association, know of no such case. Because so few employees outside of the City of Detroit had prior county service with another county department, the instant case may well be one of first impression. Thus, contrary to defendant’s assertion, there has been no longstanding administrative interpretation to which this Court must give respectful consideration.

Finally, we note that well established rules of statutory construction support our decision herein. We have already observed that, because in most instances the county employees did not have prior work experience in another county department, the act in most instances fulfilled its purpose as literally interpreted. In a few instances, including the situation before us, the purpose and spirit of the statute was not fulfilled. It is a well established rule that the spirit and purpose of a statute must prevail over its strict letter. Aikens v Dep’t of Conservation, 387 Mich 495, 499; 198 NW2d 304 (1972). We perceive the clear legislative intent as enabling employees to receive all their retirement benefits from one source. Courts may not interpret a statute literally if such interpretation would lead

to a result contrary to what the Legislature intended. Higgins v Monroe Evening News, 70 Mich App 407, 413; 245 NW2d 769 (1976). Lastly, statutes are not to be interpreted so as to cause a hardship or injustice, if it can be avoided. Zawacki v Detroit Harvester Co, 310 Mich 415, 420; 17 NW2d 234 (1945). The board’s interpretation does cause a hardship to plaintiff because it deprives him of roughly 50% of the monthly benefits he would receive from the county had not the merger taken place, and deprives him of 50% of the benefits he would receive from the state by receiving benefits from one source.

Reversed. No costs, a public question being involved.

       MCL 38.17c; MSA 3.981(17c).

       Merger was mandated by 1965 PA 401; MCL 400.1; MSA 16.401.

       Plaintiffs service by dates is: June 1, 1930-March 31, 1952, Gogebic County Road Commission. July 1, 1956-March 21, 1965, Gogebic County Welfare Department. March 21, 1965-July 10, 1976, State of Michigan Department of Social Services.

       The $850-$900 figure was given in response to a question by the court at oral argument. Because county salaries are generally lower than state salaries, and because retirement benefits are based on a percentage of the salary received during the last years worked, plaintiffs "final average compensation” would be somewhat less had he remained a county employee rather than being a state employee. During his service with the county, plaintiff was paying into the county retirement fund.

       In Curtis, supra, the Court adopted the literal interpretation of a statute pertaining to retirement for teachers in the out-state school system. The Court found that a similar statute pertaining to teacher retirement for the Detroit school system contained the exact language which plaintiff wanted liberally construed into the out-state statute. The Court held that because the Legislature used the language in one instance but did not do so in the other, the Legislature intended that there be a difference.

       Introduced in evidence as plaintiff’s exhibit 5.

       Introduced in evidence as plaintiffs exhibits 2 and 3.

       At oral argument, plaintiffs counsel stated that "only a dozen or so” persons who were working for the county in the department of social welfare had, like plaintiff, prior county service. Defendant did not appear at oral argument.

       Since the statute intended benefits to be received from a single source, plaintiff may not retain the benefits already paid him undér the county retirement system and also receive state payments under the statute as interpreted by this opinion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DETROIT FIRE FIGHTERS ASSOCIATION, LOCAL 344, IAFF v CITY OF DETROIT
    Docket Nos. 46480, 46481.
    Submitted January 4, 1980, at Detroit.
    Decided February 21, 1980.
    A dispute between the City of Detroit and The Detroit Fire Fighters Association, Local 344, IAFF, arose over whether the fire fighters employed by the city were entitled to seniority credit, including credit for the purpose of salary step increases, during periods in which fire fighters were laid off from work. The matter was submitted to an arbitrator pursuant to the provisions of the contract then in force. The arbitrator issued an award in favor of the Fire Fighters Association. The City of Detroit refused to comply with the award. The Fire Fighters Association commenced an action in circuit court seeking enforcement of the award. The City of Detroit commenced a separate action requesting that the arbitrator’s award be vacated. By stipulation of the parties, the two actions were consolidated, with the city’s claim in its action being considered to be a counter-claim in the action brought by the association. The association moved for summary judgment. The city conceded that there was no dispute as to any material fact, but argued that the law supported its position. The Wayne Circuit Court, Theodore R. Bohn, J., granted the association’s motion for summary judgment. The City of Detroit appeals. Held;

    The city, under the guise of arguing that the arbitrator exceeded his authority, sought to have the trial court, and seeks to have this Court, review the merits of the dispute and undertake an interpretation of the contractual provisions at issue. Since the arbitrator’s conclusions were within the framework of the collective bargaining agreement, neither court may substitute its judgment as to the meaning and intent of the contractual provisions. The fact that the arbitrator’s interpretation of a contract is wrong is irrelevant to the limited review of an arbitrator’s award that may be undertaken by a court. The arbitrator’s award being with the framework of the contract, the trial court’s grant of summary judgment was proper.

      Reference for Points in Headnote •
    [1] 5 Am Jur 2d, Arbitration and Award §§ 90, 145.

      Affirmed.
    Arbitration and Award — Scope op Judicial Review — Relevancy op the Arbitrator’s Interpretation.
    An arbitrator’s award which is determined to be within the framework of the contract at issue is not subject to further review by the courts; the fact that the arbitrator’s interpretation of the contract is wrong is irrelevant to the limited review of arbitrator’s awards that may be had in the courts.

      Marston, Sachs, Nunn, • Kates, Kadushin & O’Hare (by Theodore Sachs and Mary Ellen Gurewitz), for plaintiff.

      George G. Matish, Acting Corporation Counsel, and Anna Diggs-Taylor and Frank W. Jackson, Assistants Corporation Counsel, for defendant.
    Before: T. M. Burns, P.J., and Bashara and N. J. Kaufman, JJ.
   Per Curiam.

This case was well-briefed by both sides and vigorously argued at every level; and, while statements of facts and counter-statements of facts were filed, the parties agree on the important issues necessary for this decision.

1. The parties to this suit have negotiated a collective bargaining agreement.

2. The agreement contains a provision that parties will submit disputes to an impartial arbitrator whose decision will be final and binding.

3. A dispute arose over the seniority rights of firemen who had been laid off and whether such firemen were entitled to full seniority credit toward step increases, which would result in higher salaries when rehired.

4. The contract between the parties contains a provision for police parity, to-wit: that the pay of fire fighters is tied to that of police officers.

5. As a result of not being able to resolve the dispute, the Fire Fighters Association sought arbitration. Through the procedures of the American Arbitration Association, the parties selected as arbitrator Dr. Bernard Klein, who conducted a hearing and issued an award in favor of the Fire Fighters Association.

6. The city would not comply with the arbitrator’s decision; and the Fire Fighters Association, in turn, brought an action in Wayne County Circuit Court seeking enforcement of the arbitrator’s award.

7. The city commenced a separate action requesting that the award be vacated.

8. The two cases were consolidated in the circuit court by stipulation, with the city’s claim in its action being considered to be a counter-claim in the action brought by the Fire Fighters Association.

The association filed a motion for summary judgment alleging that there are no material facts at issue. The city in its circuit court brief agreed that there were no material facts at issue; however, the city claimed that summary judgment should not be granted because the law supported the position of the city as stated in their law suit. The circuit court granted the association’s motion for summary judgment. The city appeals.

The city contends, as it did before the circuit court, that the arbitrator exceeded the scope of his authority by requiring the city to restore seniority, for pay increment purposes, of those fire fighters laid off since 1975. In addressing that issue the lower court held:

"The principal issue presented is whether the arbitrator exceeded his authority in entering the award. The Court will find, based on the briefs, affidavits and arguments presented, that the arbitrator did not go beyond the issues presented to him by the parties as covered or set forth under the Collective Bargaining Agreement. In other words, the arbitrator did not exceed his authority.”

The city claims that the following provision of the collective bargaining agreement specifically limits the authority of the arbitrator in the instant case:

"The City in no event shall be required to pay back wages for more than ten (10) working days prior to the date a written grievance is filed. In the case of a pay shortage of which the employee could not have been aware before receiving his pay, any adjustment shall be retroactive to the beginning of the pay period covered by such pay, if the employee files his grievance within ten (10) working days after receipt of such pay.”

The city argues that this provision clearly limits the arbitrator’s authority to issue an award. The city goes on to argue:

"Indeed the only exception to the 10 day rule is in the case of a pay shortage. Even there the authority of an arbitrator to issue a remedy is severely curtailed. An arbitrator does “not have an equitable power to 'make whole’ a grievant. His authority rests upon a presumption that the grievant would have offered proofs that he could not have known about his pay shortage prior to receiving his pay. Even here, the grievant would only get backpay to the beginning of the pay period that he discovered his shortage.”

The arbitrator dealt with the city’s position in the following manner:

"The claim of the City that back pay can only be applied for ten days prior to the filing of a grievance is rejected because that section of the contract must be read m its entirety and it states that 'The City shall not be required to pay back wages more than ten (10) working days prior to the date a written grievance is filed, except as to shortages’ (Article 6, section I, p 11).

"This situation certainly fits the definition of a 'shortage’ and therefore the Award can be applicable for a period going back further than ten working days.”

The city’s contention is at least arguable; however, it is also fatally defective. Under the guise of asking this Court to determine the scope of the arbitrator’s authority, the city is, in actuality, asking for a review of the merits of the case and an interpretation of the contractual provisions at issue. It is clear from the arbitrator’s opinion that his decision emanated from the collective bargaining agreement. Since the arbitrator’s conclusions were within the framework of the contract, this Court’s review of the matter is concluded. Ferndale Education Ass’n v School Dist for the City of Ferndale #1, 67 Mich App 637, 642-643; 242 NW2d 478 (1976). As the United States Supreme Court stated:

"As we there emphasized, the question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator’s construction which was bargained for; and so far as* the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” United Steelworkers of America v Enterprise Wheel & Car Corp, 363 US 593, 599; 80 S Ct 1358; 4 L Ed 2d 1424 (1960).

This controversy arose when on September 8, 1977, arbitrator E. J. Forsythe issued an award in a grievance arbitration case between the City of Detroit and the Detroit Police Officers’ Association. The award held that police officers who had been laid off had to be credited,, for purpose of salary step increases, with the seniority they would have accumulated had they not been laid off. The fire fighters, asserting their right to parity under their contract with the city, sought to have the the results of arbitrator Forsythe’s award in the D.P.O.A. case applied to them. The arbitrator herein stated:

"Likewise the contention that parity means that the same applicable dates apply to both firefighters and police officers regardless of when the lay-offs occurred is a spurious one. Dr. Forsythe never mentioned dates but rather established a principle, namely that lay-off time be counted toward seniority as it affects annual pay increments. It is mere happenstance that some firefighters were laid off at earlier dates than some police officers, but it appears that there were some differences both within each department and between the two departments as to time of lay-offs. Certainly the requirements of parity would indicate that if 'seniority is to be intact without any loss’ (Forsythe Award), it must be applied for the period of the lay-off of the individual firefighter or police officer and not for the lay-off period of someone else.” (Emphasis supplied.)

Under the guise of arguing that the arbitrator exceeded his authority, the city is, in effect, contending that the arbitrator misinterpreted the collective bargaining agreement. However we are mindful that "[t]he fact that an arbitrator’s interpretation of a contract is wrong is irrelevant”. Ferndale Education Association, supra, 643. Since the arbitrator considered the city’s position during the arbitral proceedings, and since his conclusion to the contrary was clearly formed within the framework of the contract, we find no error in the lower court’s grant of summary judgment.

Affirmed. No costs, a public question being involved.

       "There shall be no appeal from the decision of the Arbitrator if made in accordance with his jurisdiction and authority under this Agreement. It shall be final and binding on the Union, on all bargaining unit employees, and on the City.”


text:
    JACKSON COUNTY EDUCATION ASSOCIATION v GRASS LAKE COMMUNITY SCHOOLS BOARD OF EDUCATION
    Docket No. 78-4709.
    Submitted June 5, 1979, at Lansing.
    Decided December 27, 1979.
    The Jackson County Education Association (Association) filed a charge with the Michigan Employment Relations Commission (Commission) alleging that the Grass Lake Community Schools Board of Education (Board) had violated the public employment relations act (PERA) by effecting unilateral changes in the terms and conditions of employment without having reached an impasse in their bargaining with the union. The Board responded by filing a charge against the Association alleging that the union on several occasions had attempted to restrain or coerce the Board in its selection of a representative for the purpose of collective bargaining, contrary to PERA. After a hearing, the administrative law judge found that the unilateral changes by the employer were lawful. The administrative law judge also found that all but one of the alleged instances of union misconduct were lawful. However, with regard tó a petition, which a number of union members signed requesting the Board to divest itself of the services of its negotiator, the administrative law judge found a violation of the law. The Association filed exceptions to the administrative law judge’s decision with the .Commission. The Commission reversed as to the finding of an unfair labor practice by the union. The Board appeals. Held:

    1. A petition calling for the removal of the negotiator for the Board and signed by 509 individuals, all of who were registered voters and taxpayers and some of whom were members and officers of the Association, was delivered to the Board. The wording of the petition indicated the signers were concerned about the possible waste of taxpayer’s money. The Michigan public employment relations act provides that the Employment Relations Commission’s findings of fact are conclusive if supported by competent, material and substantial evidence on the record considered as a whole. The Commission’s conclusion that there was no direct evidence that the "teachers, qua Association or otherwise acting in concert, originated or circulated [the] petition” was supported by competent, material and substantial evidence on the whole record.

      References for Points in Headnotes
    [1] 3 Am Jur 2d, Agency § 359.
    [2] 48A Am Jur 2d, Labor and Labor Relations § 1761.
    [3] 2 Am Jur 2d, Administrative Law §§ 722, 723, 747 et seq.

    [4] 1 Am' Jur 2d, Administrative Law § 185.
    [5] 16A Am Jur 2d, Constitutional Law § 530 et seq.

      2. An administrative agency is empowered to interpret its authorizing statute and take into account relevant court decisions. The Commission properly ruled on the constitutionality of PERA.
    3. The right of citizens to petition their government for redress of grievances is specifically guaranteed by the United States and Michigan Constitutions and is guaranteed to public employees' as well as private citizens. However, that right may be .circumscribed to the extént necessary to achieve a valid state objective, and, in such cases, the rights of the citizens must be balanced against the interest of the state in controlling the exercise of that right. A petition calling for the removal of a school board negotiator and signed by teachers, who are taxpayers in the school district as well as members of the teacher’s union which bargains with that district’s school board, does not amount to an attempt by a labor organization to restrain or coerce a public employer in the selection of its representatives for the purpose of collective bargaining or the adjustment of grievances.
    Affirmed.
    1. Principal and Agent — Agency Relationship — Question op Fact.
    The existence of an agency relationship and the scope of the relationship are questions of fact.
    2. Labor Relations — Michigan Employment Relations Commission — Findings op Fact — Statutes.
    The Michigan public employment relations act provides that the Employment Relations Commission’s findings of fact are conclusive if supported by competent, material and substantial evidence on the record considered as a whole (MCL 423.216[d]; MSA 17.455[16][d]).
    3. Constitutional Law — Appeal and Error — Administrative Law — Review — Evidence.
    What the drafters of the Michigan Constitution intended, by use of the sentence "[t]his review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record”, was a review which considers the whole record, not just those portions of the record supporting the findings of the administrative agency; although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative evaluation of evidence considered by an agency (Const 1963, art 6, § 28).
    4. Administrative Law — Interpretation of Statutes — Authority of Agency.
    An administrative agency is empowered to interpret its authorizing statute and take into account relevant court decisions.
    5. Constitutional Law — Redress of Grievances — Public Employees — Circumscription of Rights.
    The right of citizens to petition their government for redress of grievances is specifically guaranteed by the United States and Michigan Constitutions and is guaranteed to public employees as well as private citizens; however, that right may be circumscribed to the extent necessary to achieve a valid state objective, and, in such cases, the rights of the citizens must be balanced against the interest of the state in controlling the exercise of that right (US Const, Am I, Const 1963, art I, § 3).

      Darrel D. Jacobs, for appellant.

      Foster, Swift, Collins & Coey, P.C. (by Arthur R. Przybylowicz), for appellee.
    Amicus Curiae: Michigan Association of School Boards (by William E. Lobenherz).

    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Per Curiam.

On September 7, 1977, the Jackson County Education Association (Association), appellee, filed a charge with the Michigan Employment Relations Commission (Commission) alleging that the Grass Lake Community Schools Board of Education (Board), appellant, had violated the public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., by effecting unilateral changes in the terms and conditions of employment without having reached an impasse in their bargaining with the union. Appellant responded by filing a charge against the Association alleging that the union, on several occasions, had attempted to restrain or coerce the Board in its selection of its representative for the purpose of collective bargaining contrary to PERA. After a hearing, the administrative law judge found that the unilateral changes by the employer were lawful. The administrative law judge also found that all but one of the alleged instances of union misconduct were lawful. However, with regard to a petition, which a number of union members signed, requesting the Board to divest itself of the services of its negotiator, the administrative law judge found a violation of the law. The Association filed exceptions to the administrative law judge’s decision with the Commission. On October 20, 1978, the Commission reversed as to the finding of an unfair labor practice by the union. From that decision, the Board appeals.

On appeal, the Board raises several questions for our review, one of which bears serious consideration. This appeal centers upon the legality of a petition requesting the Board to remove its negotiator with the union, an outside attorney whom the board had retained. The petition was signed by 509 individuals all of whom were apparently registered voters and taxpayers in the school district and some of whom were also members and officers of the teacher’s union representing the teachers in the Grass Lake Community Schools. From the wording of the petition, it would seem that the signers were concerned about the possible waste of taxpayers’ money.

Appellant argues that the union officials who signed the petition acted as agents for the union. The Commission found that "[t]here is no direct evidence to show that the Grass Lake teachers, qua Association or otherwise acting in concert, originated or circulated this petition”.

The existence of an agency relationship and the scope of that relationship are questions of fact. Wilkinson v The Detroit Steel & Spring Works, 73 Mich 405; 41 NW 490 (1889), Lincoln v Fairfield-Nobel Co, 76 Mich App 514; 257 NW2d 148 (1977). "The findings of the commission with respect to questions of fact if supported by competent, material, and substantial evidence on the record considered as a whole shall be conclusive.” MCL 423.216(d); MSA 17.455(16)(d). Examining identical language contained in the labor mediation act, MCL 423.1 et seq.; MSA 17.454(1) et seq., our Supreme Court noted that what was intended "was a thorough judicial review of administrative decision, a review which considers the whole record — that is, both sides of the record — not just those portions of the record supporting the findings of the administrative agency”. Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974).However, the review is not de novo in nature. Id. The burden of proof in such cases rests with the charging party. Employment Relations Comm v Reeths-Puffer School Dist, 391 Mich 253; 215 NW2d 672 (1974).

The source of the petition in the instant case was never clarified. The president of the local union affiliate of the Association testified that parents in the school district had circulated it. There was no apparent discussion within the union on the matter. Moreover, the petition was presented by someone who was not believed to be a teacher. Accordingly,, viewing the record as a whole, we find the Commission’s decision to be supported by competent, material and substantial evidence.

Appellant also contends that the signing of the petition by union officials, even if not acting in an official capacity, violated subsection 10(3)(a)(ii) of the public employment relations act. That section of the act provides in pertinent part:

"(3) It shall be unlawful for a labor organization or its agents (a) to restrain or coerce:

"(ii) a public employer in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances;” MCL 423.210(3)(a)(ii); MSA 17.455(10)(3)(a)(ii).

With regard to this charge, the Commission found as follows:

"There is no direct evidence to show that the Grass Lake teachers, qua Association or otherwise acting in concert, originated or circulated this petition. Although one permissible inference from the evidence is that some JCEA member(s) may have authored the petition, we do not find it necessary to resolve this question of fact. Even if the petition was authored by members of the Association or the Association itself, the presentation of a public petition to the governing body of a public institution is clearly protected as part of the 'public discussion of public business * * *’ Madison School District v Wisconsin Employment Relations Commission, 429 US 167, 175 (1976). We cannot premise an unfair labor practice on the basis of such First Amendment protected activity as is evidenced in this case.”

At the outset, we must determine whether the Commission impermissibly ruled on the constitutionality of PERA. Generally speaking an administrative agency acts in a fact-finding capacity and does not undertake to determine constitutional questions. Dation v Ford Motor Co, 314 Mich 152; 22 NW2d 252 (1946). However, such an agency is empowered to interpret its authorizing statute. See Howard Pore, Inc v State Comm’r of Revenue, 322 Mich 49; 33 NW2d 657 (1948). In doing so, an agency may properly take into account relevant court decisions. Hence, the Commission did not err by interpreting the statutory language in light of Madison, supra.

The meaning of the language contained in that section is a question of first impression in Michigan courts. However, identical language is contained in § 8(b)(1)(B) of the National Labor Relations Act. 29 USC 158(b)(1)(B). We are permitted to be guided by those Federal decisions which have interpreted comparable sections of the NLRA. Rockwell v Crestwood School Dist Board of Education, 393 Mich 616; 227 NW2d 736 (1975).

The right of citizens to petition their government for redress, of grievances is specifically guaranteed by the United States and Michigan Constitutions. US Const, Am I; Const 1963, art I, § 3. These rights are guaranteed to public employees as well as private citizens. Pickering v Board of Education, 391 US 563; 88 S Ct 1731; 20 L Ed 2d 811 (1968), Abood v Detroit Board of Education, 431 US 209; 97 S Ct 1782; 52 L Ed 2d 261 (1977), Sponick v Detroit Police Dep't 49 Mich App 162; 211 NW2d 674 (1973). In such cases, the right of the citizen must be balanced against the interest of the state in controlling the exercise of that right. Pickering v Board of Education, supra, Grivhan v Western Line Consolidated School Dist, 439 US 410; 99 S Ct 693; 58 L Ed 2d 619 (1979), Phillips v City of Flint, 57 Mich App 394; 225 NW2d 780 (1975). That freedom may be circumscribed to the extent necessary to achieve a valid state objective. See Sponick v Detroit Police Dep’t, supra, Phillips v City of Flint, supra.

In Madison Joint School District No 8 v Wisconsin Employment Relations Comm, 429 US 167; 97 S Ct 421; 50 L Ed 2d 376 (1976), the Court considered whether the state could statutorily preclude teachers,- who were not union representatives, from presenting their views to a board of education regarding pending negotiations with the teacher’s union. At the time, Wisconsin law prohibited negotiations with a member of the bargaining unit other than the exclusive collective-bargaining representative. Id., 172. The Wisconsin Supreme Court had held that a teacher’s presentation of a petition signed by some of the other teachers in the bargaining unit was negotiation within the meaning of the statute and was, therefore, prohibited. Id., 174. In reversing the state Court, the Supreme Court stated as follows:

"Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech. See Police Dep’t of Chicago v Mosley, 408 US 92, 96; 92 S Ct 2286; 33 L Ed 2d 212 (1972).” Id., 176.

It is apparent from the statutory language in question that the Legislature was intent upon preventing a union from subverting the negotiation process by controlling both sides of the negotiating table. In at least two instances, Federal circuit courts have found picketing to be a violation of the comparable NLRA provision where its admitted purpose was to pressure the company in question to change its choice of supervisors. International Organization of Masters, Mates and Pilots, International Marine Division, ILA, AFL-CIO v National Labor Relations Board, 159 US App DC 11; 486 F2d 1272 (1973) (IOMMP I), International Organization of Masters, Mates and Pilots, Marine Division, International Longshoremen’s Association, AFL-CIO v National Labor Relations Board, 539 F2d 554 (CA 5, 1976) (IOMMP II). However, as the Supreme Court has noted, picketing involves more than just speech. International Brotherhood of Teamsters, Local 695, AFL v Vogt, 354 US 284, 289; 77 S Ct 1166; 1 L Ed 2d 1347 (1957).

The kind of pressure embodied in a petition such as the one in the present case — that the voters may demonstrate their dissatisfaction at the election polls — stands at the very core of our democratic process and the First Amendment. Thus, if appellant’s view is adopted, the statute would prohibit the exercise of this fundamental right on the basis of the individual’s employment, a distinction which is suspect under Madison. Moreover, the statutory language in question was intended to control concerted activities on the part of the union. See IOMMP I, supra, IOMMP II, supra. In the instant case, the teachers signed the petition as individuals, not as part of a group effort organized by the union.

In light of the weighty First Amendment considerations already noted, we affirm the Commission’s determination that a petition signed by teachers, who are taxpayers in the school district as well as members of the teacher’s union which bargains with that district’s school board, does not amount to an attempt by a labor organization to restrain or coerce a public employer in the selection of its representatives for the purpose of collective bargaining or the adjustment of grievances.

Affirmed.


author: Allen, P.J.

text:
    PEOPLE v COOK
    Docket No. 77-3098.
    Submitted January 2, 1980, at Lansing.
    Decided March 4, 1980.
    Leave to appeal applied for.
    Ronnie D. Cook was convicted of two counts of obtaining money by false pretenses and two counts of possession of a stolen vehicle with intent to pass title thereto, Recorder’s Court of Detroit, Patricia J. Boyle, J. Before being charged in Michigan, Cook had been serving a sentence in a Federal penitentiary in Illinois. His presence in Michigan was obtained pursuant to a writ of habeas corpus ad prosequendum. After arraignment and before trial several adjournments were granted, and at one point the defendant was transferred back to the Federal facility and then to a Federal Community Treatment Center where he spent some three months before again being transferred to the Wayne County Jail. Defendant appeals, alleging that the Interstate Agreement on Detainers was violated when he was returned to Federal authorities prior to the trial, that the Interstate Agreement on Detainers was violated (because he was not brought to trial within 120 days of his first arrival in'Michigan, that evidence of similar bad acts of the defendant introduced at trial was insufficient to establish that he actually committed those acts, and that certain documents were erroneously admitted into evidence. Held:

    1. The provision of the Interstate Agreement on Detainers which requires charges against a defendant to be dismissed if he is returned to the original place of imprisonment without trial,being had was not violated by the defendant’s return to Federal authorities. The return was at the defendant’s own request and made possible the continuation of a rehabilitation program, which was in furtherance of the goal of the provision in question, that being to avoid the disruptive effect on rehabilitative programs caused by the shuttling of prisoners between jurisdictions.

      References for Points in Headnotes
    [1] 31 Am Jur 2d, Extradition§ 71.
    Validity, construction, and application of Interstate Agreement on Detainers. 98 ALR3d 160.
    [2] 31 Am Jur 2d, Extradition § 25.
    [3, 4] 29 Am Jur 2d, Evidence § 333.
    [5, 6] 30 Am Jur 2d, Evidence § 1011 et seq.

    Admissibility in evidence of enlarged photographs or photostatic copies. 72 ALR2d 308.

      2. The requirement that a defendant who is sent from one state to another be brought to trial within 120 days is subject to certain limitations. In this case much of the delay in bringing the defendant to trial was requested or initiated by the defendant and is therefore not included when calculating the 120-day period. There was no violation of the 120-day requirement.
    3. There was sufficient competent evidence presented to establish that the defendant did in fact commit the prior similar bad acts which the prosecutor sought to prove.
    4. Photocopies and microfilm copies of automobile title documents were admissible into evidence even though the copies were not stamped certified as correct, because such copies are admissible as exceptions to the best evidence rule and in this case the actual custodian of the documents testified as to their authenticity.
    Affirmed.
    1. Criminal Law — Interstate Agreement on Detainers — Return of Prisoners — Statutes.
    A provision of the Interstate Agreement on Detainers which requires dismissal of charges against a defendant incarcerated in another state who has been brought to Michigan to face charges and then returned to the original place of imprisonment without a trial being had is not violated where the return to the original place of imprisonment, while awaiting trial in Michigan, is made at the defendant’s request and enables the defendant to continue in a rehabilitation program which is not available in the Michigan facilities in which the defendant would be held (MCL 780.601, Art IV[e]; MSA 4.147[1], Art IV[e]).
    2. Criminal Law — Interstate Agreement on Detainers — Delay of Trial — Statutes.
    A prisoner who is brought from another state pursuant to the Interstate Agreement on Detainers for purposes of trial is to be brought to trial within 120 days of his arrival in the receiving state or the charges should be dismissed; however, any necessary and reasonable continuance granted in open court with the prisoner or his counsel present is not included in the 120 days, the trial court may toll the time period for any time the prisoner is unable to stand trial, and any delay caused by the prisoner’s request or to accommodate the prisoner is not included in the 120-day period (MCL 780.601, Arts IV[c], V[c], VI[a]; MSA 4.147[1], Arts IV[c], V[c], VI[a]).
    3. Criminal Law — Evidence —• Prior Similar Acts.
    Evidence of a defendant’s other bad acts is admissible to show the defendant’s motive, plan or scheme upon a showing of substantial evidence indicating that the defendant actually committed the other acts; that the defendant committed the other acts need not be proven beyond a reasonable doubt, however, and the prosecutor need only show that the defendant probably committed the other acts or that the evidence offered may tend to show the defendant’s intent or common scheme in committing the charged offense.
    4. Criminal Law — Evidence — Hearsay — Prior Similar Acts.
    Hearsay evidence which is objected to by opposing counsel and which is not within one of the recognized exceptions to the hearsay rule is incompetent and inadmissible and cannot be relied upon by a prosecutor to establish the probability that a criminal defendant committed prior similar bad acts.
    5. Evidence — Business Records — Copies — Statutes.
    A photographic or micro film copy of an original business record permitted by law to be destroyed is deemed to be an original record for all purposes and is to be treated as an original record in court for purposes of admissibility in evidence (MCL 600.2148[2]; MSA 27A.2148[2]).
    6. Evidence — Documents — Copies — Public Officers — Statutes. •
    Copies of all documents required or permitted by law to be filed by any public officer in his office, or to be entered or recorded therein and duly filed, can be certified by such officer to be true transcripts compared by him with the original in his office and thereafter are admissible in evidence in court as if they were the original documents (MCL 600.2107; MSA 27A.2107).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Neis L. Olson, Assistant Prosecuting Attorney, for the people.

      Robert L. Ziolkowski, for defendant on appeal.
    Before: Allen, P.J., and V. J. Brennan and Mackenzie, JJ.
   Allen, P.J.

On June 16, 1976, defendant began serving a one-year sentence at the Federal prison in Marion, Illinois for violation of a Federal statute governing uttering and publishing. On October 7, 1976, a warrant was issued by Recorder’s Court charging defendant with two counts of obtaining money by false pretenses, MCL 750.218; MSA 28.415, and two counts of possession of a stolen vehicle with intent to pass title thereto, MCL 257.254; MSA 9.1954. On October 13, 1976, a writ of habeas corpus ad prosequendum was issued ordering defendant’s transfer from Marion to the Federal Correctional Institution at Milan, Michigan. Pursuant to said writ, he was transported by Federal marshals to Milan on October 27, 1976, and on October 28, 1976, was arraigned in Recorder’s Court. On the same day, he was returned to Federal authorities in Milan.

On November 3, 1976, he was again transferred from Milan to Recorder’s Court for purposes of preliminary examination. Examination was waived and defendant requested that a detainer not be filed because, if he were returned to Marion, he could be transferred to a Federal half-way house in Detroit. On November 3, 1976, defendant was returned to Milan and three days later was returned to Marion, Illinois. On December 12, 1976, he was transferred by Federal authorities from Marion to the Federal Community Treatment Center in Detroit where he remained until March 1977 when he was transferred to the Wayne County Jail. Following several trial adjournments, allegedly for the purpose of finalizing plea negotiations, defendant was tried by jury May 18, 1977, and found guilty on all four counts.

Prior to trial, defendant moved to quash the information on grounds that the Interstate Agreement on Detainers (IAD), MCL 780.601; MSA 4.147(1), under which defendant was returned to Michigan, was violated and, accordingly, the Recorder’s Court was without jurisdiction to try defendant. The motion was denied April 26, 1977. On May 27, 1977, defendant was sentenced to six years, eight months, to ten years in prison. He appeals of right raising four questions.

I. Was Article IV(e) of the Interstate Agreement on Detainers Violated?

Defendant contends that Article IV(e) of the IAD, which reads:

"If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

was violated: (1) on October 28, 1976, when following arraignment he was returned to Milan rather than being held by Wayne County authorities; (2) on November 3, 1976, when following waiver of preliminary examination he was again returned to Milan rather than being held by Wayne authorities; (3) on November 6, 1976, when he was returned to the place of his original incarceration at Marion, Illinois. This Court’s holding in People v Estelle, 93 Mich App 449; 287 NW2d 262 (1979), is dispositive of defendant’s argument. In that case, as here, the defendant was by writ of habeas corpus ad prosequendum transferred from a Federal prison in another state to the Federal Holding Facility at Milan where he was held until his arraignment in Macomb County Circuit Court. Following arraignment, he was advised that his trial would be delayed about four weeks unless he chose to be tried by another judge. The defendant elected to await the assigned judge’s return and the question arose whether the defendant should await trial at the Macomb County jail or at Milan. The defendant indicated he preferred Milan and was transferred there where he remained for one month before trial. On appeal, he claimed his transfer to Milan rather than being held by Ma-comb authorities was a breach of Article IV(e) of the IAD. This argument was rejected, our Court saying:

"On this question of first impression we are asked to decide whether Article IV(e) of the Interstate Agreement on Detainers, MCL 780.601; MSA 4.147, requires dismissal with prejudice of the information where, following arraignment but before trial on charges of armed robbery, the defendant, who had been brought to Michigan from the Federal penitentiary in Atlanta, Georgia, was returned to Federal custody at the Federal Holding Facility at Milan, Michigan, rather than being confined in the Macomb County jail pending trial. We answer this question in the negative.

"Viewed in the totality of the circumstances involved we do not find the confinement of defendant at the Holding Facility in Milan a violation of the proscription of Article IV(e) of the IAD. In reaching this conclusion we find it unnecessary to decide whether Mauro, supra, [United States v Mauro 436 US 340; 98 S Ct 1834; 56 L Ed 2d 329 (1978)], overrules this Court’s decision in Beamon, supra [People v Beamon, 83 Mich App 121; 268 NW2d 310 (1978)]. * * * Article I of the IAD states that the purpose behind the statute is to prevent the disruption of an inmate’s rehabilitation when a detainer is lodged against him. As was stated in Christian v United States, 394 A2d 1, 40 (DC App, 1978):

" 'There is nothing in the legislative history or in the Agreement itself to indicate that its provisions were intended to apply to persons who were not involved in rehabilitative programs. Article IV(e) was designed to avoid the shuttling back and forth between jurisdictions and the resulting disruptive effect such transfers would have on a consistent treatment program and to promote the speedy disposition of outstanding charges upon which the detainers were based.’

"In the instant case the defendant was not being shuttled back and forth between the county jail and a Federal prison but was held only for a brief stated period of time awaiting trial. Neither can it be said that his right to an uninterrupted program of rehabilitation was infringed upon. Neither at the Milan Holding Facility or at the Macomb County jail could the defendant participate in a program of rehabilitation, since neither institution offered such programs.” 93 Mich App at 450-451, 453-454.

Estelle is squarely on point for our conclusion that defendant’s return to Milan following arraignment October 28th, and following waiver of preliminary examination on November 3, 1976, was not violative of the IAD. The only relevant difference between the instant situation and Estelle is that here defendant was returned "to the original place of imprisonment”. However, his return was at his own request and made possible continuation of a program of rehabilitation which was not offered at either Milan or the Wayne County jail. As was noted in Christian v United States, supra, Article IV(e) was designed to avoid the disruptive effect that shuttling prisoners back and forth from one jurisdiction to another would have on rehabilitative programs. In the instant case, defendant’s brief return to Illinois made it possible for defendant to participate in rehabilitation for the three-month period from December 12, 1976, to March 11, 1977, when he was finally placed in the Wayne County jail. We find no violation.

II. Was Article IV(c) of the Interstate Agreement on Detainers Violated?

Defendant next argues that because trial was not" commenced until some 202 days after defendant’s arrival in Michigan, Article IV(c) of the IAD, which requires trial within 120 days, was violated. Article IV(c) reads:

"In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.”

This section provides that when a prisoner is sent from one state to another for purposes of trial, he shall be brought to trial within 120 days after his arrival in the receiving state. If the prisoner is not brought to trial within the 120-day period, the trial court should enter an order dismissing the charge. Art V(c). There are, however, three important limitations on the 120-day rule. First, the trial court may grant any necessary and reasonable continuance for good cause shown in open court with the prisoner or his counsel present, and this time does not count in the 120-day period. Art IV(c). Second, the court may toll the time periods established by the IAD for as long as the prisoner is unable to stand trial. Art VI(a), United States v Mason, 372 F Supp 651 (ND Ohio, 1973). And finally, if a delay is caused by the defendant’s request or in order to accommodate the defendant, the period of delay attributable to defendant is not used in calculating the 120-day time period. People v Stroble, 31 Mich App 94, 99; 187 NW2d 474 (1971), lv den 384 Mich 842 (1971), People v Bernstein, 74 Misc 2d 714; 344 NYS2d 786 (1973), People v Leonard, 18 Ill App 3d 527; 310 NE2d 15, 17 (1974), Neville v Friedman, 67 Ill 2d 488; 10 Ill Dec 575; 367 NE2d 1341 (1977), cf. United States v Scallion, 548 F2d 1168 (CA 5, 1977). Compare, Stroble v Egeler, 547 F2d 339 (CA 6, 1977), after remand, Stroble v Anderson, 587 F2d 830 (CA 6, 1978), cert den 440 US 940; 99 S Ct 1289; 59 L Ed 2d 499 (1979).

In the case at bar, the prosecution contends that substantial portions of the delay were attributable to defendant. This is denied by defendant who also contends that the several adjournments in trial were made in open court when neither defendant nor his counsel were present. The problem is that given the present state of the record, it is impossible to determine the basis for the various adjournments or whether the defendant or his counsel were present when such adjournments were granted. Transcripts of the proceedings on the various adjournment dates are not provided by either party to this appeal. Nevertheless, we are provided with the transcript from the hearings on April 19 and 26, 1977, which were held to determine, among other things, whether the delays in bringing defendant to trial on the instant charges were in fact attributable to the defendant. In this regard the trial court ruled:

"* * * it does appear to me and I find as a fact that Mr. Cook did initiate the failure of the Detroit Police to file a detainer and also did engage in, for a period of time prior to January of ’77, agreements that delayed the disposition of the State matter.

"* * * And I find that Mr. Cook is estopped to assert a violation of the 120 day rule for the period of time during which the negotiations were going on.

"* * * based upon the testimony the Court finds that the 120 day period did not begin to run until January 31st of '77 and 120 days will not have expired by the trial date in this matter, May 18, 1977.

"Therefore, there is no Article 4c violation.”

The record reveals that defendant initiated and proceeded with negotiations regarding his possible cooperation with the police in their investigation and possible prosecution of alleged co-conspirators. These negotiations continued for a period of at least 88 days. Accordingly, after subtracting the period of delay caused by accommodating the defendant, or per his request, we conclude that there was no violation of Article IV(c) of the IAD.

III. Did the Trial Court Err by Allowing Testimony Concerning Defendant’s Sale to Complainant of Three Other Vehicles, Said Testimony Being Admitted Under the Similar Acts Statute, MCL 768.27; MSA 28.1050?

The charges against defendant arose out of his possession of two different stolen vehicles and the subsequent sale of those vehicles, by using invalid registration and title documents from Kentucky, to Kenneth O’Keefe, sales manager at Floyd Rice Ford, a car dealership in Detroit. On appeal, defendant does not contest the sufficiency or the admissibility of the evidence offered by the prosecution relating to the documentation used to prove that these vehicles were stolen. Rather, he challenges both such aspects of the otherwise uncontested evidence used to prove defendant’s other similar acts. o

Before trial, the prosecution moved to allow the introduction of evidence indicating that defendant had sold three other stolen vehicles to the Floyd Rice Ford car dealer. The trial court ruled that, notwithstanding the prejudicial impact of such evidence, it would be admissible under the similar acts statute to establish defendant’s intent and common scheme, plan or system in selling the two stolen vehicles to the car dealer. MCL 768.27; MSA 28.1050, see MRE 404(b). Defendant does not challenge the trial court’s ruling that the uncharged criminal acts could be appropriately admitted under the similar acts statute since the acts were probative of defendant’s intent and common scheme in committing the charged offenses, and were "indispute” to the extent that the evidence was used to prove defendant’s criminal intent to obtain money by false pretenses. People v Wilkins, 82 Mich App 260, 267-270; 266 NW2d 781 (1978), lv den 406 Mich 857 (1979), People v Ernest Smith, 87 Mich App 18; 273 NW2d 573 (1978). Rather, the sole basis of defendant’s claim on appeal with regard to this evidence is that there was insufficient evidence that defendant actually perpetrated the bad acts sought to be relied upon.

The rule is that evidence of other bad acts is admissible upon a showing of, inter alia, substantial evidence indicating that the defendant committed the other acts. People v Wilkins, supra, at 267, People v Davis, 343 Mich 348; 72 NW2d 269 (1955). The evidence of similar acts need not be proven beyond a reasonable doubt. People v Allen, 351 Mich 535, 547; 88 NW2d 433 (1958), People v Duncan, 402 Mich 1, 13-14; 260 NW2d 58 (1977). Rather, the prosecutor need only show that the defendant probably committed the other acts, or that the evidence offered ¡"may tend to show” the defendant’s intent or common scheme in committing the charged offense. People v Allen, supra, People v Duncan, supra, 1 Wharton’s Criminal Evidence (13th ed), § 263, p 626, Anno: 3 ALR 784, McCormick, Evidence (2d ed), § 190, pp 451-452.

Defendant contends that the evidence introduced in the instant case was insufficient to establish the purported similar acts of defendant because it was founded on hearsay evidence. We agree that the prosecutor cannot rely on inadmissible hearsay evidence in order to establish the probability of the defendant committing the other similar acts. Generally speaking, hearsay evidence which is objected to by opposing counsel and which is not within one of the recognized exceptions to the rule is incompetent and hence inadmissible. People v Edwards, 396 Mich 551; 242 NW2d 739 (1976), MRE 802. Therefore, to the extent that inadmissible hearsay evidence is relied upon as substantive proof that defendant committed the similar acts, it must be concluded that this evidence, standing alone, is insufficient as a matter of law. Hence, the issue presented in the case at bar is whether the prosecutor’s proof of defendant’s similar acts was sufficient as a matter of law to show that defendant probably committed those acts.

The following testimony was elicited at trial on this issue. Mr. O’Keefe testified that he conducted business transactions with the defendant on behalf of the Floyd Rice Ford dealership; in particular, that Mr. O’Keefe purchased automobiles from the defendant for the car dealership. Mr. O’Keefe further testified that he had personal knowledge that five of the cars purchased from the defendant were later discovered to have been stolen. Defendant claims that this testimony constituted inadmissible hearsay evidence since the prosecution failed to produce the true owners of the allegedly stolen vehicles to establish that the vehicles were, in fact, stolen. We do not agree that the prosecutor’s failure to produce the original owners of the three vehicles (relating to the similar acts) necessarily means that Mr. O’Keefe was without personal knowledge as to the truth of the proposition that the vehicles were stolen. It is conceivable that somehow he was able to personally determine that the vehicles were stolen. However, since the prosecutor neglected to lay an adequate foundation concerning this matter, and since defendant made a timely objection on the grounds that it was hearsay, it must be concluded that this evidence should not have been considered as probative of the matter for which it was asserted, i.e., that the three vehicles were, in fact, stolen.

Nevertheless, a full reading of the other testimony offered at trial clearly indicates that substantial evidence was introduced which directly and inferentially established that the three vehicles had been stolen, and that the documentation used to transfer title to those vehicles was invalid.

Benjamin Viele, Administrative Assistant to the Director of Driver & Vehicle Services for the Michigan Department of State, testified at trial that his duties in that capacity were to keep all vehicle registration and title records in Michigan and to investigate Michigan vehicle titles. In that regard, Mr. Viele testified that when the title documentation from Floyd Rice Ford concerning the three vehicles in question came into his office, he microfilmed and then destroyed all the original documents and then forwarded the original titles to their purported place of origin, the state of Kentucky. Subsequently, Mr. Viele was informed by the Kentucky state police that the Kentucky titles had been missing or stolen from one of their counties and that the vehicles described on these titles had never been titled or registered in that state. This information was confirmed at trial by Detective William Zopff of the Kentucky state police, assistant commander of the auto theft section. His function in that capacity was keeper of the records for Kentucky vehicle registration and title records. In that capacity, Detective Zopff testified that the Kentucky control numbers for title registration certificates found on the certificates for the three cars sold by the defendant to Floyd Rice Ford had been among the 31 titles stolen from a county clerk’s office sometime before, and that, therefore, they were fraudulent and invalid. In addition, three officers from the Detroit police department commercial auto theft section testified to having investigated and determined that each of the three cars represented in the fraudulent certificates of title had, in fact, been stolen from Indiana and Kentucky. These vehicles were later confiscated by the officers in and about the Detroit area from their private "owners” and, after comparing the confidential vehicle identification numbers, determined to be the stolen vehicles represented in the registration certificates stolen from the Kentucky county clerk.

Based on the foregoing testimony, none of which constituted inadmissible hearsay, it is clear beyond peradventure that substantial evidence was introduced by the prosecutor which directly established that stolen title registration certificates were used by defendant to sell stolen vehicles to Floyd Rice Ford. Although much of the foregoing testimony would have been admissible under the public records/business records exceptions to the hearsay rule, Pirkner v Purdon, 27 Mich App 476; 183 NW2d 598 (1970), Gilliland v Baldwin-Lima-Hamilton Corp, 52 Mich App 489; 218 NW2d 63 (1974), and see MRE 803(8), it was unnecessary to do so since each of the witnesses provided the critical information from their own personal' knowledge of the facts. Accordingly, we conclude that the prosecutor’s proof of each of the elements of the similar acts purportedly committed by defendant was sufficient as a matter of law to show that defendant probably committed those acts.

IV. Did the Trial Court Commit Reversible Error by Allowing into Evidence Public Documents Not Officially Stamped Certified by the Public Official in Charge of Such Documents, in Violation of the Best Evidence Rule?

Defendant contends that the trial court erred in admitting into evidence packets purporting to show the title history of the three automobiles which were the basis of the similar acts evidence. The packets were not certified copies of the originals of the title documents and, therefore, defendant contends, they were inadmissible. The prosecutor responds that since Mr. Viele was the individual who maintained the title records in this case, he could properly authenticate the packets during his testimony.

We hold that the photo-copied and microfilmed copies of the title records for the three vehicles were admissible under either or both of the following exceptions to the best evidence rule. First, § 2148 of the Revised Judicature Act states that a "photographic, photostatic, microfilm, microcard or miniature photographic copy or reproduction” of an original business record permitted to be destroyed "shall be deemed to be an original record for all purposes, and shall be treated as an original record in all courts * * * for the purpose of its admissibility in evidence”, MCL 600.2148(2); MSA 27A.2148(2). Since Mr. Viele testified that the original documents in all title records are microfilmed or photo-copied and then destroyed, and since the operations of instrumentalities of government constitute "business” within the meaning of the statute, Birkner v Purdon, supra, the trial court was correct in construing the title records as "original” for the purpose of thé best evidence rule. See MRE 1003. Second, copies of all documents required or permitted by law to be filed by any public officer in his office, or to be entered or recorded therein and duly filed, can be certified by such officer to be true transcripts compared by him with the original in his office and thereafter shall be admissible in evidence in all courts as if they were the original documents. MCL 600.2107; MSA 27A.2107. Although none of the three title records was stamped certified as correct by the custodian or person authorized to make the certification, it is clear that the prosecutor exceeded the statutory requirement by calling the actual custodian of the records (qua Mr. Viele) who testified that the records were a correct and compared copy of the original. Compare MRE 902(4), 1005. Accordingly, the trial court did not err in admitting into evidence, over defense objections on the basis of the best evidence rule, the microfilms and photocopies of the title records to the three vehicles which were the basis of the similar acts evidence.

Affirmed.

       The Estelle opinion was released subsequent to briefs being filed in the instant case. As a consequence, the briefs concentrated on the issue of whether a writ of habeas corpus ad prosequendum was a detainer as held in People v Beamon, 83 Mich App 121, 133; 268 NW2d 310 (1978), lv den 403 Mich 850 (1978), and whether Beamon has been overruled by United States v Mauro, 436 US 340; 98 S Ct 1834; 56 L Ed 2d 329 (1978).

       Adjournments of record were made November 9 and December 22, 1976, and January 7, 13 and 20, 1977. Neither defendant nor his counsel were present.