The ultimate question before the hearing officer is whether the conduct of the grievant constituted conduct unbecoming a state employee and, if so, whether discharge was the appropriate penalty. The hearing officer would not countenance the pursuit and harassment of any member of a group protected by Civil Service rules on the scale demonstrated here as being worthy of any state employee. The grievant, however, is an attorney and as such is held to a higher standard of conduct. The Lawyers Oath of the State Bar of Michigan, in its final paragraph, reads as follows:
I will in all other respects conduct myself personally and professionally in conformity with the high standards of conduct imposed upon members of the bar as conditions for the privilege to practice law in this State.
The hearing officer does not pass judgment on the conduct of the grievant as an attorney, but cites the portion of the oath set forth above as exemplary of the fact that all attorneys are aware, however and wherever they are employed, that they are to conform their behavior to a standard higher than that set for their non-attorney fellow employees.
The Detroit Free Press says that Shirvell's attorney, Michael Thomas, called the decision "one more example of the state trampling on Shirvell’s First Amendment rights." He said that the decision will be appealed.
From the decision:
The facts as set forth in the findings of fact portion of this decision are but a sparse exemplary portion of the conduct engaged in by the grievant, whether it was in the email to former State Representative Drolet, in the “blog” itself, or in his attempts at confrontation with Armstrong and his acquaintances. The speech engaged in by the grievant is of the most base, hateful sort. When one reviews the performance ratings given to the grievant and reviews the opinions in this record of his supervisors as to his abilities as an Assistant Attorney General, it is truly disheartening to see that ability utilized to engage in the reprehensible speech, lies and half-truths that are set forth in the grievant’s “blog” postings. Even the Washtenaw County prosecutor’s office, in its decision not to prosecute, found the speech “offensive,” “mean spirited,” “childish,” and “disingenuous.” (Joint Exhibit #3, Tab 30) This speech, generating the negative publicity that it did for the grievant’s employer, is conduct unbecoming any state employee, let alone a state employee working as an Assistant Attorney General.
The decision says that the Attorney General's office received over 22,000 phone calls about Shirvell's conduct.