Hambley Hearing Day Two – Objection - Full and Fair Opportunity to Provide Evidence
Day two of Administrative Health Officer Adeline Hambley’s 46.11(n) hearing began with the questioning of Ottawa County Administrator John Gibbs by Hambley’s attorney Sarah Howard. During Gibbs’ testimony, Howard raised an objection that her client was not being given a “full and fair opportunity” to provide evidence. At one point Gibbs declined to answer a question because it related to ongoing litigation, and at another point attorney David Kallman recommended Gibbs not answer a question due to attorney-client privilege. After a brief legal discussion, Howard’s request that Board Chairman Joe Moss compel Gibbs to provide a response to her questions was denied. This objection will likely be referenced in future litigation.
The hearing held by the Ottawa County Board of Commissioners was a legislative hearing, not a court proceeding. As such, the structure and rules are very different. The purpose of the 46.11(n) hearing was to provide Adeline Hambley and the public an opportunity to respond to the charges against her. Unlike a criminal legal proceeding where the defendant is innocent until proven guilty, in a 46.11(n) hearing, it is up to the board to determine if, in their opinion, the charges against Hambley are sufficient to cause removal of her employment.
Initially, Howard requested Judge Brennan, the hearing facilitator, compel Gibbs to provide a response to her question. Judge Brennan reminded Howard he was not afforded power or authority to issue rulings or to compel witnesses to testify. Next, Howard requested Board Chairman Moss compel Gibbs to respond, asserting that Moss has “presumed power” as issuer of Gibbs’ subpoena, and that grants him the authority. The commissioner’s attorney David Kallman disagreed with Howard, as did Ottawa County Corporate Counsel attorney Jack Jordon.
Jordon attempted to add clarity to the decision, stating that this hearing was not a trial court proceeding and was not afforded the same considerations. He compared the hearing to a deposition, and suggested Howard state her objection and move onto her next line of questioning. Once again Howard objected, stating this hearing was in fact an employment hearing, and she reserved the right to bring the matter before Muskegon County Circuit Court Judge Jenny McNeil.
Howard has disputed that Hambley’s employment status is subjected to a legislative hearing defined under Michigan statute 46.11(n), and has made attempts to negotiate different terms for Hambley’s 46.11(n) hearing. At a hearing before Muskegon County Circuit Court Judge Jenny McNeil on Monday, October 23, 2023, Howard asked the trial court to intervene on behalf of her client and issue a stay that would have prevented the 46.11(n) hearing from taking place on Tuesday, October 24, 2023. Howard also asked the court to review procedural issues she felt denied her client a fair hearing. Judge McNeil denied Howard’s request stating that the trial court had no jurisdiction over a 46.11(n) legislative hearing. Unless the Commissioners violated the statue requirements, she could not intervene. In her opinion, the Commissioners had so far met the statute requirements. However, earlier in the year, in March 2023 she issued an injunction that prevented the firing of Hambley. At that time Judge McNeil believed commissioners were not following applicable statutes. Judge McNeil’s injunction was overturned by the Michigan Court of Appeals in October 2023, allowing the Commissions to proceed with Hambley’s 46.11(n) hearing.
There is little doubt that the objection raised by Howard in Hambley’s 46.11(n) hearing will end up being litigated at a later date in trial court. However, it remains to be seen if the trial court will agree with Howard’s assessment that Hambley should have been afforded the same considerations that would be provided in a trial court proceeding during the 46.11(n) legislative hearing.