ATTORNEYS AT LAW

146 MONROE CENTER STREET, NW, SUITE 418

GRAND RAPIDS, MICHIGAN 49503-2818
TELEPHONE (616) 451-8496

Sarah Riley Howard

showard@pinskysmith.com
June 13, 2024

Jessica Nakfour
Director, Human Resources
MSU Extension

VIA EMAIL ONLY TO Ms. Nakfour at

Dear Ms. Nakfour,

I am an attorney who has been retained by Christian Kleinjans. This

correspondence contains a request for a litigation hold. Please forward this letter to
MSU Extension’s attorney immediately.

As you know, MSU Extension terminated Chris Kleinjans’ employment

effective June 4, 2024. I am investigating Mr. Kleinjans’ potential claims against
MSU Extension arising out of this termination. You advised Mr. Kleinjans that his
placement on leave without pay (and his subsequent termination) was justified by
Michigan’s Incompatible Public Offices Act, Mich. Comp. Laws § 15.181 et seq. (“the
Act”), and the Political Activities policy in the MSU Extension Administrative
Handbook (“the Handbook”). Respectfully, we disagree that the Act or the
Handbook require or support terminating Mr. Kleinjans’ job because he won his
election to take office as an Ottawa County Commissioner.

Under Section 15.181(b), a person’s elected office and public employment are
incompatible only if there is the subordination of one public office to another,
supervision by one office to the other, or a “breach of duty of public office.” There is
no serious argument that Mr. Kleinjans’ employment as a Community Nutrition
Instructor for MSU Extension would implicate subordination or supervision
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June 13, 2024
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between that position and his role as a County Commissioner. Therefore, the only
question is whether his employment would cause a “breach of duty of public office.”
We believe the law is clear that it would not.

Our Michigan Supreme Court has said that “a breach of duty arises when a
public official holding dual offices cannot protect, advance, or promote the interest
of both offices simultaneously. Public officers and employees owe a duty of loyalty to
the public. All public officers are agents, and their official powers are fiduciary.
They are trusted with public functions of the good of the public; to protect, advance
and promote its interests.” Macomb Cty. Prosecuting Atty. v. Murphy, 464 Mich.
149, 164 (2001) (internal citations and quotations omitted). In that case, the Court
reversed in favor of a county treasurer’s office employee who was elected to be a
trustee of a township within the county by holding that “the statute focuses on the
manner in which the official actually performs the duties of public office[,]” not
whether there is any abstract potential for a conflict of interest. The Court held that
the statutory language of this Act requires an actual breach of duty, id. at 163-164,
which of course is not present under our circumstances either. Abstaining from a
vote based on a conflict of interest for any MSU Extension issue that comes before
the Ottawa County Commission would be all that is required of Mr. Kleinjans under
the Act. See also 1979-1980 Op. Att’y Gen. 5626, pp 537-542 (January 16, 1980).

The Attorney General has provided many opinions concluding the Act does
not prohibit a person from holding an elected office and a public employment
position in multiple similar situations to this one, including:

• It was permissible for a county commissioner to be employed by a

village’s public works department, even though that village’s council
submitted an annexation petition to the county board of
commissioners for review and approval. 2006 Mich. Op. Att’y Gen.
7184, 2006 Mich. AG LEXIS 1.

• It was permissible for a county commissioner to accept an

appointment as a township manager in the same county that has a
voter-approved fixed allocation of millage for the county, its
townships, and its intermediate school district, provided that the
township manager has no responsibility for administering,
negotiating, or enforcing contracts with the county. 2002 Mich. Op.
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June 13, 2024
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Att’y Gen. 7119, 2002 Mich. AG LEXIS 22.

• It was permissible for a city council member to be on the board of a

public transportation authority of which the city is a member. 2000
Mich. Op. Att’y Gen. 7054, 2000 Mich. AG LEXIS 15.

Similar to these situations, Mr. Kleinjans can lawfully serve as a County

Commissioner while being employed by MSU Extension. To the extent that there is
any issue with approving a contract between MSU Extension and the County, or
negotiating it, so long as Mr. Kleinjans recuses himself from that vote or that type
of activity – which he certainly would – there is no prohibition under the Act from
Mr. Kleinjans working for MSU Extension and serving as a County Commissioner.

In the same vein, there is no good argument that the Handbook requires or
supports Mr. Kleinjans’ employment termination either. Mr. Kleinjans has complied
with all requirements of the Handbook. As MSU Extension knows, Mr. Kleinjans is
capable of spotting a potential conflict of interest, and handling any such situations
appropriately should they arise.

Instead, we believe that the actual reason for this decision is that MSU
Extension has bowed to political pressure from current Ottawa County
Commissioners aligned with Ottawa Impact and Lucy Ebel, Mr. Kleinjans’
opponent in the recall election. As I am sure you are now aware, Ms. Ebel also
remains a candidate for the next full Commission term in the August primary and
the November general election, where she would face off against Chris again. In
firing him because of Ottawa Impact’s political pressure and somewhat obvious
intent to harm Mr. Kleinjans’ ability to make a living, MSU Extension has violated
Mr. Kleinjans’ First Amendment rights.

It is my understanding that MSU Extension management met with Mr.

Kleinjans twice prior to the recall election to talk to him about the fact that he had
filed to run as a candidate for the Commission seat in the recall election in May
2024 and for the upcoming general election in November 2024. Mr. Kleinjans
complied with all requirements of the Handbook to notify MSU Extension about his
candidacy. Matthew Shane and Erin Moore, the associate director of the MSU
Extension Health & Nutrition Institute, then met with Mr. Kleinjans to warn him
that MSU Extension might require him to take a leave of absence from his job if he
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June 13, 2024
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won the election for county commission. Mr. Kleinjans made the point that nothing
about the office for which he was running ran afoul of the Handbook, and that
others before him had run for similar offices without issue. Ms. Moore told Mr.
Kleinjans that his candidacy to unseat an Ottawa Impact-aligned commissioner
would not be a problem “if this were any other county besides Ottawa.” That is not a
legitimate, lawful application of the Handbook, nor borne out of any concern to
comply with the Incompatible Offices Act. Instead, it is unlawful political viewpoint
and membership discrimination prohibited by the First Amendment.

James Kelly, MSU Extension’s District 4 director, had earlier admitted to Mr.
Kleinjans that if Kleinjans ran for and was elected to the County Commission seat,
MSU Extension was concerned about repercussions with its relationship with
Ottawa County officials. Later, Mr. Kleinjans became aware that Commission Chair
Joe Moss and Commissioner Allison Miedema had already met with Mr. Kelly and
Scott Korpak, the District 7 director, to apparently allege some type of concern of a
conflict of interest if Mr. Kleinjans were to win the recall election against their
political ally, then-Commissioner Ebel. Mr. Kleinjans was not told directly about
this meeting with Chair Moss and Commissioner Miedema, and he was not offered
any opportunity to participate or weigh in. Again, it is our position that there is no
legitimate argument under the Act or under the Handbook that Mr. Kleinjans must
leave his employment with MSU Extension in order to serve as an Ottawa County
Commissioner. Indeed, it is evident from these events, specifically Ms. Moore’s
statement, that instead MSU Extension has unfortunately – and illegally – bowed
to pressure from the Ottawa Impact-controlled commission majority.

What we are seeking here is simply Mr. Kleinjans’ return to his employment
with MSU Extension. We believe strongly that is the result required by the law, and
that it will be the eventual result in this situation if a court needs to become
involved. If this matter can be resolved quickly, Mr. Kleinjans is not looking for
economic damages, non-economic damages, or attorney fees. I hope we can achieve
that result here.

Pursuant to the Bullard-Plawecki Employee Right to Know Act, I ask for a

copy of Mr. Kleinjans’ personnel file. This should include, but is not limited to, all
documents and communications regarding this situation from anyone associated
with Ottawa County, and everything documenting the decision to terminate Mr.
Kleinjans’ employment and/or the reasons for it. The Right to Know Act requires
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inclusion in the personnel file of all records “to the extent that the record is used or
has been used, or may affect or be used relative to that employee’s qualifications for
employment, promotion, transfer, additional compensation, or disciplinary action.”

Litigation hold notice: I advise you of MSU Extension’s legal obligation to

preserve all potential discovery material. To that end, we demand that you take all
necessary steps to identify, locate, and preserve potential discovery material,
including with all other parties and entities, including Michigan State University,
and Ottawa County employees, agents and elected officials. This material includes
but is not limited to electronic data, such as emails, text messages, audio files,
social media communications, and any other data kept in any form or on any device,
including business and/or personal cellphones, computers, and/or other devices; and
all business and/or personal and/or campaign communication accounts or messaging
applications, evidencing or containing any document or communication that in any
way relates to or could potentially relate to this dispute. It is also expected that you
will identify all employees and related individuals or entities who have knowledge
of this dispute, and that you will take all steps necessary to ensure their compliance
with this obligation as well.

Please ask your attorney to contact me by June 17, 2024. My cell phone, 616-
901-9140, or email, showard@pinskysmith.com, are the best ways to reach me.

Very Truly Yours,

PINSKY SMITH PC

Sarah Riley Howard

SRH/nr