(dissenting). The question presented concerns the scope of judicial review of a decision of a municipal civil service commission. I would hold that a decision to discharge a civil service employee after a hearing is subject to judicial *719review, pursuant to Const 1963, art 6, § 28,1 to determine whether it is supported by competent, material, and substantial evidence on the whole record, and not merely to determine whether there is any evidence to support the decision.
I would also hold that the circuit judge did not err in ordering that Marcia Payne be restored to her former position.
A
The Board of Civil Service Commissioners of the City of Muskegon sustained the discharge of Marcia Payne from her employment as an administrative secretary in the Civil Service Department.
Payne filed a complaint for superintending control, naming the board as defendant. The circuit judge found that the decision of the board was "not supported by competent, material and substantial evidence from a review of this whole record,” that there was "not that quantum of evidence in this record that would warrant discharge,” and ordered that the board determine "what discipline, if any, less than discharge, is reasonable under the circumstances pursuant to” the board’s rules and regulations.2_
*720The Court of Appeals reversed, stating that while appeals from administrative agencies or tribunals "often pose the question whether there was competent, material, and substantial evidence on the whole record to support the underlying administrative decision,” that standard is not applicable where the plaintiff invokes the "extraordinary remedy of superintending control” in a case "where an appeal on the merits is not available.”3
B
I would hold that
—A municipal civil service commission is an administrative "agency existing under the constitution or by law,” that its "final decisions, findings, rulings and orders” are "judicial or quasi-judicial and affect private rights or licenses” within the meaning of Const 1963, art 6, § 28,4 and are therefore "subject to direct review by the courts” although the Legislature5 has not provided for judicial review, and
—As provided in the constitution,6 such re*721view shall "include, as a minimum, the determination whether such final decisions, findings, rulings and orders” are "authorized by law,” and, where a hearing is required,7 such review shall include "as a minimum” whether the decision, findings, rulings and orders "are supported by competent, material and substantial evidence on the whole record.”
I therefore conclude that the circuit court did not err in reviewing the decision of the Muskegon Board of Civil Service Commissioners to determine whether there was competent, material, and substantial evidence on the whole record to support the decision to discharge Payne, and not solely to determine whether there was any competent evidence to support the decision.8
I also conclude that the circuit court did not err in determining that there was not sufficient evidence to justify the decision discharging Payne, *722and in remanding for imposition of a lesser penalty.
I would reverse the decision of the Court of Appeals and reinstate the judgment entered by the circuit court.
i
The Court of Appeals observed correctly that a writ of superintending control is the means by which a circuit court exercises its power of judicial review of a decision of an administrative tribunal where an appeal is not specifically provided for by statute.9
The Court of Appeals erred, however, in concluding that, because superintending control replaces certiorari, and issuance of a writ of superintending control may be extraordinary, judicial review is always limited to questions of law10 and, hence, to a determination whether there is any competent evidence to support a finding of fact.
As set forth in the lead opinion, there are a number of decisions of this Court, preceding the adoption of the 1963 Constitution, reviewing factual determinations of a municipal civil service commission. The review by this Court was not solely to determine whether there was any competent evidence to support the decision, but rather *723was to determine whether there was substantial evidence to support the decision.11
Now, however, for reasons about to be stated, the constitutional standard, "competent, material and substantial evidence on the whole record,” is applicable to judicial review of a decision discharging a civil service employee following a hearing required by the rules and regulations of the civil service commission.
ii
The board contends that the constitutional standard applies only to state administrative agencies, not municipal administrative agencies. It is urged that an administrative agency does not "exist under the constitution or by law” unless the administrative agency is created by the constitution or by an act of the Legislature. I would not read the words "existing under the constitution or by law” so narrowly.12_
*724I would hold that an agency "exists under the constitution or by law” at least where the constitution or an act of the Legislature provides for a governmental function to be discharged by the agency, and that the constitutional standard governs judicial review where there are provisions for a hearing respecting the exercise of the governmental function and for decisions, findings, rulings, or orders following the hearing that are judicial or quasi-judicial and affect private rights or licenses.
A
In the instant case, both the constitution and an act of the Legislature authorize local units of government to provide for a merit or civil service system for their employees. The constitution provides that the governing body of a city or of other local governmental units may establish, modify or discontinue a merit system for its employees.13 The Home Rule Act provides that a home rule city may in its charter provide for a system of civil service for its employees.14
*725It is therefore clear that administering a municipal civil service commission is a governmental function authorized and provided for by both the constitution and by law, and that a local civil service commission is an "agency existing under the constitution or by law” within the meaning of art 6, § 28 of the 1963 Constitution.
B
In stating in the constitution that the governing body of a local unit of government may, by ordinance or resolution, establish, modify or discontinue a merit system, the framers of the constitution indicated that the details of the system were to be spelled out by ordinance or resolution. Similarly, in stating that the charter of a city may provide for a system of civil service, the Legislature indicated that the details of the system were to be spelled out in the charter or pursuant to its provisions. The framers of the constitution and the Legislature thereby indicated that local units of government were authorized to provide for the particular terms and provisions of their merit or civil service systems. An agency created and acting under rules and regulations adopted pursuant to such a delegation of authority is an agency "existing under the constitution or by law.”
The City of Muskegon, in establishing a civil service system and rules and regulations therefor pursuant to the delegation of authority set forth in the constitution and in the Home Rule Act, acted *726"under the constitution or by law.” The resulting Muskegon Board of Civil Service Commissioners is an "agency existing under the constitution or by law” within the meaning of art 6, § 28.15
The Muskegon civil service rules and regulations provide for a hearing when an employee appeals from a decision discharging the employee from employment by the city. The decision of the Mus-kegon Board of Civil Service Commissioners sustaining the disciplinary action against Payne is a quasi-judicial decision affecting her "private” rights under the Muskegon civil service system.16
c
The question whether an appeal by a local governmental employee from a decision of a civil service commission would be subject to judicial review in accordance with the "competent, material and substantial evidence” standard arose at the Constitutional Convention. Speaking for the *727committee of the Constitutional Convention that formulated the new constitutional standard, a delegate indicated that it was contemplated that there would be judicial review of the decision of a municipal civil service commission pursuant to the new constitutional standard. Specifically, the delegate responded in the affirmative to the question whether, on appeal to a court from a decision of a local civil service commission disciplining a governmental employee, such as a policeman, there would be a "greater test” than whether "the facts in the record clearly tend by competent evidence” and "fair probative value” to support the finding of the civil service commission.17_
*728Ill
I turn to a consideration of whether the decision to discharge Payne was supported by competent, material and substantial evidence.
A
The board’s rules and regulations provide that there are three groups of offenses. Group one includes the least severe offenses, such as habitual tardiness, unexcused absences, abusive coffee breaks. Group one also includes as an offense "[fjaulty work.” An employee who commits one group-one offense may receive a warning. An employee who commits repeated group-one offenses is not subject to discharge until the fifth offense.
Group two concerns the next most severe offenses, such as injurious or dangerous pranks, fighting on the premises, and wilful destruction of city property. An employee who commits a single group-two offense is subject to a three-day suspension without pay. A repeated group-two offender is not subject to discharge until the third offense.
Group three includes the most serious transgressions, such as violations of the Civil Rights Act, knowingly falsifying records, consumption of alcoholic beverages on the job. Group three also includes the offense of failing to perform work duties completely and efficiently after receiving a warn*729ing. A person who commits a group-three offense is subject to immediate discharge.
The rules and regulations provide that the board may treat a group-three offense as a group-two or a group-one offense, and may treat a group-two offense as a group-one offense. The board could thus have treated Payne’s failure to perform her duties as a group-one or a group-two offense.
B
Payne received a letter of reprimand in early June, 1989, concerning her failure to record certain information and her failure to keep secure a number of employment applications. Seven days later, she received a review with ratings ranging from acceptable to outstanding in eighteen of twenty areas of job performance.18
Payne was discharged July 17 because she had not rectified the deficiency in recording information and had again left employment applications unsecured on her desk.
Truman Forest’s belief that Payne had again left applications unsecured on her desk was mistaken. Another employee had left the applications on Payne’s desk after she had left on vacation. Forest refused to provide Payne an opportunity to show that another employee had left the applica*730tions on her desk. At the hearing before the board, Forest insisted that he would have discharged Payne even if he had known that she had not left the applications unsecured.
While Payne’s failure to update the department’s records may have justified some disciplinary response, I agree with the circuit judge that there was not competent, material and substantial evidence on the whole record justifying dismissal. Updating the department’s records was an important task, but Payne’s failure was not tantamount to a group-three offense, such as violation of the Civil Rights Act, stealing city property, or drinking on the job.
Payne was on vacation for the two-week period preceding her discharge on July 17. Thus, less than a month intervened between the warning in early June and the date she left on vacation. The record shows that there were a number of tasks that were given to her to perform in that approximately four-week period and that she in good faith thought that they had a higher priority.
c
The lead opinion holds that the penalty assessed by the board is "not subject to substantial evidence review,” stating that "[t]he determination of the appropriate penalty did not involve any questions of fact because the commission’s rules allow it to terminate the plaintiff under the facts she conceded.”19
The lead opinion’s holding ignores that the constitutional standard, "competent, material, and substantial evidence on the whole record” applies *731not only to findings of fact but also to "decisions,” "rulings” and "orders.”20
The lead opinion adverts to cases in other jurisdictions, including federal cases, but on the central question whether the decision of the Board of Civil Service Commissioners, or only its findings of fact, are subject to judicial review, the Court cites no authority for its conclusion that the decision itself is not subject to judicial review.21
*732Contrary to the suggestion in the lead opinion, federal courts do review an agency’s decision discharging an employee to determine whether the punishment was proportionate. In Brown v United States Postal Service, 860 F2d 884 (CA 9, 1988), the United States Court of Appeals for the Ninth Circuit reversed a decision of the United States District Court affirming a decision of the Federal Employee Appeals Authority upholding the Postal Service’s decision to discharge Brown. The court said that it defers to an agency’s judgment "unless the penalty is so harsh or disproportionate to the offense as to constitute an abuse of discretion,” and that in "determining whether a penalty is disproportionate to the offense,” courts consider a number of factors:
"We have said that we will defer to the judgment of the agency as to the appropriate penalty for employee misconduct, unless its severity appears totally unwarranted in light of such factors as the range of permissible punishment specified by statute or regulation, the disciplined party’s job level and nature, his record of past performance, the connection between his job and the improper conduct charges, and the strength of the proof that the conduct occurred.” [Id., p 888.]
The court said that although substantial evidence supported the determination that Brown had wil-fully failed to follow established postal procedures in handling postage-due transactions, and such "misconduct was serious in light of Brown’s duties at the cash drawer, our analysis of the other factors persuades us that Brown’s termination was too harsh, particularly given that the usps could *733have transferred him to non-cash handling duties.” Id., p 888.22
*734The Ninth Circuit, paralleling the decision of the circuit judge in this case, reversed Brown’s dismissal, declared that he was entitled to back pay and reinstatement of employment in some capacity in the Postal Service, and remanded the case for reconsideration of the appropriate disciplinary action.23
D
In three cases decided after the adoption of the 1963 Constitution, this Court, without referring to Const 1963, art 6, § 28, reversed decisions of a municipal civil service commission sustaining the discharge of employees because this Court found that the penalty of discharge was disproportionate to the offense.24
In Fannon v Southfield, 405 Mich 558; 275 *735NW2d 256 (1979), the Southfield Civil Service Commission affirmed a decision to discharge Fannon for violating five of the city’s civil service rules. The circuit court and the Court of Appeals affirmed. This Court reversed.
This Court first dismissed four of the five charges against Fannon. The Court, however, sustained the commission’s finding "of Fannon’s culpability for failing to directly answer questions as to the release of” a list of names. Id. at 561-562. The commission’s rules provided that this offense was one punishable by discharge.25 Nonetheless this Court held that " '[discharge was manifestly an excessive and arbitrary discipline unjustified on this record.’ ” Id., p 560. The Court remanded the case to the Southfield Civil Service Commission so that the commission could "reconsider Fannon’s punishment . . . .” Id. at 562.
Thus, in a similar case commenced by filing a complaint seeking a writ of superintending control from the decision of a local civil service commission, this Court made an evaluation of the fairness of the punishment, although the Court accepted that Fannon had committed a violation for which discharge was a permissible sanction.
Similarly, in Konyha v Mt Clemens Civil Service Comm, 393 Mich 422; 224 NW2d 833 (1975), this Court reversed the decision of a civil service commission that a firefighter should be discharged for sleeping through roll call. The Court said:_
*736One can appreciate the chief’s concern that an oversleeping firefighter, causing even the slightest delay in an emergency situation, may jeopardize the safety of the community and of his fellow officers. It does not follow, however, that Konyha’s failure to be present at this routine roll call impaired the safety of anyone or is sufficiently indicative of potential impairment of safety to justify this extreme punishment. [Id. at 431.]
The Court remanded the case to the Mt. Clemens Civil Service Commission "to determine a proper period of suspension for” this offense. Id.26 And in Brown v Dep’t of State Police, 392 Mich 811 (1974), this Court reversed a decision of the Court of Appeals and set aside an order of the State Civil Service Commission sustaining the discharge of a trooper for failing to follow rules and regulations because "[discharge was manifestly an excessive and arbitrary discipline unjustified on this record.”
I would reverse the decision of the Court of Appeals, and reinstate the judgment entered by the circuit court.
Mallett, J., concurred with Levin, J._All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This 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. Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law. [Const 1963, art 6, § 28.]
The circuit court also awarded Payne back pay. The amount of the back pay is to be reduced to reflect any discipline less than discharge imposed on remand.
193 Mich App 620, 622; 484 NW2d 759 (1992).
The Legislature has not provided for judicial review of a decisiofi of a municipal agency such as the Muskegon Civil Service Commission. MCR 3.302(A) provides, however, that an order of superintending control "enforces the superintending control power of a court over lower courts or tribunals,” that a superintending control order replaces the writ of certiorari, and that a complaint for superintending control may not be filed if an appeal or another adequate remedy is available to the party seeking the order.
See n 1 for text.
The constitution, in providing that final decisions, findings, rulings and orders of an administrative agency "shall be subject to direct review by the courts as provided by law,” contemplates that the Legislature will provide by law regarding the manner in which such judicial review shall occur. But see n 3.
See n 1 for text.
Because the rules and regulations of the Muskegon Civil Service Commission provide for a hearing, there is no need to consider whether a hearing might be required without regard to whether such rules and regulations or other governing instrument so provide.
In MERC v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974), this Court, in affirming a decision of the Court of Appeals that had reversed a decision of the merc on the ground that the findings of fact of the merc were not supported by substantial evidence, said: "The cross-fire of debate at the Constitutional Convention imports meaning to the 'substantial evidence’ standard in Michigan jurisprudence. What the drafters of the Constitution 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. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views. Cognizant of these concerns, the courts must walk the tightrope of duty which requires judges to provide the prescribed meaningful review.”
See n 3.
The Court of Appeals said that an order of superintending control replaces and is comparable to a writ of certiorari, and review is "limited only to questions of law,” 193 Mich App 621, and remanded to the circuit court to review the decision of the Board to determine whether "there is any competent evidence on the record” that Payne, "after a warning, failed to perform her work completely . . . .” Id. at 623.
The Court added that the "circuit court should guard against substituting its judgment of the facts for that which was made by the board.” Id.
In Detroit Public Welfare Comm v Detroit Civil Service Comm, 289 Mich 101, 108; 286 NW 173 (1939), this Court said: "We are only concerned, however, with the determination of whether or not there was substantial evidence to support the finding of the commission.”
In Schubert v Dearborn Civil Service Bd, 311 Mich 553, 561; 19 NW2d 96 (1945), this Court said: "The only question requiring determination on this appeal is whether or not there was competent and substantial testimony supporting the finding of the civil service board.”
In O’Dell v Flint Civil Service Comm, 328 Mich 631, 636; 44 NW2d 157 (1950), this Court said: "It is the rule that on review by the circuit court on writ of certiorari from a civil service commission the function of the court is to consider whether or not there is substantial evidence to support the finding of the civil service commission.”
The words "existing under the constitution or by law” exclude decisions of private organizations from judicial review, e.g., decisions of private clubs, the Elks, the Boy Scouts, the Girl Scouts, a country or city club. Those organizations may have rules and regulations providing for hearings and for decisions that might result in expulsion. The framers did not want to provide for judicial review of those decisions.
Governmental decisions that can be made without a hearing are *724also not subject to judicial review under the competent, material, and substantial evidence standard.
Article 11, § 6, of the 1963 Constitution, captioned "Merit systems for local governments,” provides:
By ordinance or resolution of its governing body which shall not take effect until approved by a majority of the electors voting thereon, unless otherwise provided by charter, each county, township, city, village, school district and other governmental unit or authority may establish, modify or discontinue a merit system for its employees other than teachers under contract or tenure. The state civil service commission may on request furnish technical services to any such unit on a reimbursable basis.
Each city may in its charter provide:
(h) For a system of civil service for city employees, including *725employees of that city’s board of health, and employees of any jail operated or maintained by the city. Charter provisions heretofore or hereafter adopted providing for a system of civil service for employees of a local health board are valid and effective. [MCL 117.4i(h); MSA 5.2082(h).]
The Court of Appeals, recognizing that review of a decision of a municipal board of zoning appeals is by application for superintending control "which replaces certiorari,” held that the constitutional standard set forth in Const 1963, art 6, § 28 establishes the minimum scope of judicial review. Puritan-Greenfield Improvement Ass’n v Leo, 7 Mich App 659, 665; 153 NW2d 162 (1967); Lorland Civic Ass’n v DiMatteo, 10 Mich App 129, 135; 157 NW2d 1 (1968); Alastra v City of Warren, 68 Mich App 594, 596-597; 243 NW2d 675 (1976); Dearden v Detroit, 70 Mich App 163, 171; 245 NW2d 700 (1976), rev’d on other grounds 403 Mich 257; 269 NW2d 139 (1978). Alastra was written by Chief Judge Danhof, the Chair of the Committee on the Judicial Branch at the Constitutional Convention of 1961.
The Court has also said that the standard set forth in art 6, § 28 establishes the minimum scope of review of a decision of a municipal civil service commission. Montiy v East Detroit Civil Service Bd, 54 Mich App 510; 221 NW2d 248 (1974); Rinaldi v Livonia, 69 Mich App 58; 244 NW2d 609 (1976).
This Court has indicated that a decision or finding is "judicial or quasi-judicial in nature” if there was a hearing and the decision-maker engaged in factfinding. People ex rel Clardy v Balch, 268 Mich 196, 200; 255 NW 762 (1934); Talbert v Muskegon Construction Co, 305 Mich 345, 348; 9 NW2d 572 (1943); Viculin v Dep’t of Civil Service, 386 Mich 375; 192 NW2d 449 (1971).
Mr. Ford: Perhaps it may seem out of place for me to be asking this question now, since I didn’t attend the meeting at which the committee reviewed this language, but Mr. Krolikowski, the present rule of law with respect, for example, to an appeal which is a one way appeal from the suspension of a policeman under civil service statute or charter provision, is that he has a right to appeal from the determination by the civil service commission which in the first instance is an appeal from the person who removed him or the board that removed him to the circuit court and the circuit court is bound by the findings of fact, and the examination of the findings of fact has in the past been limited to a finding that the facts in the record clearly tend by competent evidence to support the finding made by the civil service commission. Is it your thought that now we would be proceeding in a manner where in addition to showing that there was fair probative value that there would have to be some greater test met by the civil service commission in sustaining its action, or sustaining the action of the removing authority who fired a policeman, for example, for drunkenness?
Chairman Van Dusen: Mr. Krolikowski.
Mr. Krolikowski: Yes, I think they would. First of all, this language will negate the possibility of conclusive findings of fact on the part of an administrative agency.
Mr. Ford: I just sent for a volume of the reports, but I find a headnote here indicating that our court has in the past held that a legislative attempt to create such a rule was violative of the constitution and it seems to indicate that it is a violation of the separation of powers because of the fact that the court is substituting its discretion for that of an administrative body. Was this question gone into at all when your subcommittee was working on this?
Mr. Krolikowski: I think that there is a line of judicial *728thinking that would sustain that theory. However, I think that you must recognize that the concept of separation of powers is defined in the organic law of the state. Now, if this proposal is adopted, I submit that it would be conclusive on the question of separation of powers so that any cases to which you advert would be obviated by a constitutional provision which defined the separation of powers. This committee proposal would accomplish that fact. [1 Official Record, Constitutional Convention 1961, pp 1441-1442.]
Payne’s supervisor, Truman Forest, made the following observations concerning Payne’s performance:
You came to this office with very fine skills in dealing with the department’s clients. You are helpful and cheerful at all times when dealing with those who seek assistance or direction.
You’ve been eager to develop your computer skills and have given of your own time to attend computer classes which is greatly appreciated. . . .
You have been quick to grasp the overall "flow” of the operation except in two very important areas [the filing of employment applications and accuracy in typing, etc.]. . . .
Ante, p 696.
The record of the Constitutional Convention of 1961 establishes that judicial review pursuant to art 6, § 28 is not limited to findings of fact. See 1 Official Record, Constitutional Convention 1961, p 1466; 2 Official Record, Constitutional Convention 1961, p 3243.
The lead opinion writes:
The determination of the appropriate penalty did not involve any questions of fact because the commission’s rules allow it to terminate the plaintiff under the facts she conceded. Consequently, this determination is not subject to substantial evidence review. Cf. NLRB v Curtin Matheson Scientific, Inc, 494 US 775, 778, n 2; 110 S Ct 1542; 108 L Ed 2d 801 (1990) (substantial evidence review applies only to evidentiary questions); Deering v Unionville-Sebewaing Area Schools, 97 Mich App 629, 631; 296 NW2d 131 (1980) (factual findings must be supported by substantial evidence). [Ante, pp 696-697.]
Neither NLRB v Curtin Matheson Scientific nor Deering are in point. In NLRB v Curtin Matheson Scientiñc, the United States Supreme Court held that the nlkb acted within its discretion in refusing to presume that striker replacements oppose the union. In so holding, the Court reviewed the reasonableness of the board’s conclusion. It did not say or hold that the board’s decision was beyond judicial review. Justice Marshall’s opinion was joined by Chief Justice Rehnquist and Justices Brennan, White, and Stevens. The Chief Justice wrote a separate concurring opinion. Justice Blackmun dissented, and Justice Scalia, joined by Justices O’Connor and Kennedy, also dissented. The care with which the majority and dissenters reviewed the reasonableness of the board’s decision stands in stark contrast to the majority’s ipsi dixit that the "determination of the appropriate penalty” is not subject to judicial review.
In Deering, the issue addressed in the opinion of the Court was whether there was competent, material, and substantial evidence on the record considered as a whole to support the merc’s determination that Deering’s discharge was not related to or precipitated by his efforts at organizing his co-workers to obtain higher wages and increased benefits. The Court found that there was adequate evidence that Deering was discharged for other reasons. The question whether a lesser discipline should have been imposed by Deering’s employer *732was not addressed in this appeal from the merc’s decision, finding that his employer had not engaged in an unfair labor practice in discharging him for a protected activity.
The lead opinion states, correctly, that there is no statutory "Michigan counterpart” to 5 USC 7703(c), cited in Brown, and that the Ninth Circuit, in Brown, reviewed only the factual findings for substantial evidence, and did not "review the proportionality of the punishment for substantial evidence.” The lead opinion concludes that "the Brown decision confirms that the determination of the appropriate penalty is not subject to substantial evidence review . . . .” Ante, p 696, n 12.
The federal statute, 5 USC 7703(c), provides that the appellate court "shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be—
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence ....
Brown argued, and the Ninth Circuit agreed, that the "agency abused its discretion because the punishment imposed was disproportionate to his alleged offense.” Brown, supra, p 888.
Professor Kenneth Culp Davis observed that the federal courts often apply both the substantial evidence and arbitrary and capricious standards without discernible differentiation. 5 Davis, Administrative Law (2d ed), § 29:7, pp 356-363.
The United States Court of Appeals for the District of Columbia Circuit said that this Court has embraced the "emerging consensus of the Courts of Appeals that the distinction between the arbitrary and capricious standard and substantial evidence review is largely semantic . . . .” Pacific Legal Foundation v Dep’t of Transportation, 193 US App DC 184, 189, n 35; 593 F2d 1338 (1979). But the Fifth Circuit observed that the substantial evidence standard is more rigorous than the arbitrary and capricious standard. Corrosion Proof Fittings v EPA, 947 F2d 1201, 1213-1214 (CA 5, 1991).
The somewhat differing judicial views concerning how closely appellate courts should review agency action under the- substantial evidence/arbitrary and capricious standards underscores that both standards concern the level, and not the subject, of review. The federal statute, like Const 1963, art 6, §28, provides for judicial review of agency decisions ("agency action ... or conclusions”) as well as factual "findings.” Although Brown and other federal courts may apply a substantial evidence standard only in reviewing factual findings of an agency, they recognize an obligation to review an agency decision for proportionality. That is what the Ninth Circuit did in Brown, that is what Const 1963, art 6, § 28 obliges this Court to do in the instant case, and the lead opinion errs in failing to observe the constitutional mandate and in ignoring Brown and other federal decisions simply because they may have reviewed an agency decision under a standard other than the substantial evidence standard.
Decisions of federal appellate tribunals upholding the discharge of federal employees were reversed on judicial review of the punishment in the following federal cases: Francisco v Campbell, 625 F2d 266, 270 (CA 9, 1980) (civilian naval employee; although her "transgression [disobeying authority] was not trivial,” such a harsh penalty was unlikely to deter others from committing similar transgressions, and Francisco had twenty-three years of unblemished and apparently distinguished public service); Miguel v Dep’t of the Army, 727 F2d 1081 (CA Fed, 1984) (a civilian employee was discharged on the basis of unauthorized possession of government property; Miguel had a long record of outstanding service, and the property that she wrongly possessed was worth very little); Hagmeyer v Dep’t of Trestsury, 757 F2d 1281, 1285 (CA Fed, 1985) (employee had encouraged a job applicant to submit an inaccurate form; the one legitimate charge left standing against Hagmeyer did not warrant discharge because "Hagmeyer’s action represents immaturity rather than culpability, particularly in light of his good record”); Boyce v United States, 543 F2d 1290, 1291-1295 (Ct Cl, 1976) (an employee had failed to file income tax returns; the failure to file tax returns was not wilful, the amount of taxes involved was de minimis, and the violations were far less severe than another violator).
Cf. Lakeshore Bd of Ed v Grindstaff (After Second Remand), 436 Mich 339; 461 NW2d 651 (1990), in which this Court held that the State Tenure Commission may reduce a discipline of a tenured teacher imposed by a school board from discharge to suspension where it finds that the charged misconduct, while proven, was not reasonable and just cause for discharge.
Section 12.1 of the commission’s rules stated as follows:
The tenure of everyone holding office, place, position or employment in the City’s service shall be only during good behavior . . . and any such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges for . . . violation of the provisions of the rules of the Civil Service Commission, of the City Charter .... [Id., p 560.]
This case arose under the firemen and policemen’s civil service act, MCL 38.501 et seq.; MSA 5.3351 et seq. Under that act, an officer can only be disciplined for cause. In the Court’s words, that meant that
[a] written statement of charges and the reasons for the disciplinary action must be furnished. The appointing/removing authority bears the burden of justifying its action. [Id. at 428.]
Konyha’s offense of sleeping through roll call was "cause” for discipline. Although the commission had "cause” to discipline Kon-yha, this Court nevertheless reviewed the record to determine whether discharge was justified.