Armstrong is a 21-year-old University of Michigan student and the openly gay president of the university's student council. Shirvell is an assistant attorney general for the State of Michigan, a University of Michigan alum, and evidently an anti-homosexual advocate who cannot stomach the thought of Armstrong's student leadership. Shirvell has established a blog -- named after Armstrong -- through which he has launched an online assault upon Armstrong and what he claims is Armstrong's "radical homosexual agenda" to "recruit" students to "the homosexual lifestyle." Shirvell apparently also follows Armstrong around to rallies, one of the reasons why the university, in an extraordinary move, reportedly banned Shirvell from campus last month.
But even the U of M's reach is not infinite in Ann Arbor. On Sept. 5, Shirvell posted on his blog video of the Ann Arbor police breaking up an off-campus party at Armstrong's home on Labor Day weekend. In addition to proving that Armstrong is like thousands of other college students around the country whose campus parties have been shut down by the cops, the video also established that Shirvell was hanging around Armstrong's house at 1:30 a.m. to get the shot. For this reason, and many others, Armstrong went to court Monday to get a personal protection order, akin to a restraining order, against Shirvell. The beleaguered college student is asking for an injunction against a state attorney -- and that's a man-bites-dog story if there ever were one. (Update: the hearing, scheduled for Monday afternoon, was delayed three weeks, until Oct. 25.)
Shirvell's boss, Attorney General Mike Cox, so far has refused to fire the alleged stalker in his employ. Cox told The Associated Press on Thursday: "Part of the video is being outside this young man's house at 1:40 on a Sunday morning. Clearly, I wouldn't recommend that to any state employee to be doing. That being said, it's not something where I can walk in one day and say, 'I don't like what he has on there, let's broom him,' He has First Amendment protections." Not so, said Gov. Jennifer Granholm of Michigan, who was also once the state's attorney general. She wrote last week, "If I was still attorney general and Andrew Shirvell worked for me, he would have already been fired."
Short of firing him, Cox by now might have sat Shirvell down and told him he has a clear choice: either stay in the attorney general's office working on behalf of the people of Michigan or go back into the private sector so he can continue his crusade against Armstrong. Shirvell may, indeed, have a constitutional right to free speech. The American Civil Liberties Union thinks so. But he has no constitutional right to a job paid for by Michigan's taxpayers. By targeting Armstrong on his private time, Shirvell's public work now is tainted by a clear conflict of interest against an entire class of people -- gays and lesbians in Michigan -- whose cases and causes may come before him. And it's a taint that affects the entire attorney general's office, Michigan's official representatives in court.
Perhaps that dialogue between Cox and Shirvell, employer and employee, already has occurred. By late Friday, Shirvell apparently had taken a leave of absence from his post amid reports that Cox had sent him home. The state has not disclosed whether Shirvell is on paid or unpaid leave. But evidently he will face a disciplinary hearing when he returns. Cox now says that he hadn't read all of Shirvell's blog when he made his initial comments supporting his subordinate's free speech rights -- which also doesn't bode well for Shirvell's future as a paid employee of the state. It will be especially difficult to justify Shirvell's continued employment in the attorney general's office if he is formally subjected to the restraining order Armstrong seeks. State attorneys are supposed to protect people from harassment; they aren't supposed to be the harassers.
Apart from whatever criminal sanctions may result from Shirvell's conduct, he also may have breached legal ethics rules and thus subjected himself to professional sanctions down the road. The Michigan Rules of Professional Conduct, the ethical guidelines designed to guide the conduct of licensed lawyers in the state, wouldn't have come up as a talking point Monday even if the hearing had gone ahead as scheduled. But they are worth noting. For example, the preamble to the rules state: "A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others."
Rule 8.4 of the MRPC states that a lawyer engages in professional misconduct when the lawyer "engages in conduct that is prejudicial to the administration of justice" or "engages in conduct involving dishonesty, fraud, deceit, misrepresentation or violation of the criminal law, where such conduct reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer." The comment following the rule seems even more applicable here. It states: "Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of attorney."