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OPINIONS OF THE ATTO RNE Y GENER AL
CITI ES:
ELECTIO NS:
INCOM PATIBILIT Y:
PU BLIC EMPLOYEE S:
PU BLIC OFF ICES AND OFF ICERS:
Eligibili ty requirement s for position on city chart er comm ission.
A person serving as a city officer or employee ma y run for election to th e office of city chart er comm issioner but, if elected, mu st resig n from th e city office or employment before ass um ing th e office of city chart er comm issioner.
Opi nion No. 7085 J uly 11, 2001
Honora ble Dale Sheltrown Stat e Rep rese ntat ive
The Capitol
Lan sing, MI 48913
You ha ve asked wheth er a person who is serving as a city officer or employee ma y run for election to th e office of city chart er comm issioner.
The Home Rule City Act, 1909 PA 279 , MCL 117 .1 et seq; MSA 5.2071 et seq, provides for th e incor porat ion of cities an d for th e adoption, revision, an d am endment of th eir chart ers. Section 18 of th is statut e add resses th e selection of city chart er comm issions an d es ta blis hes eligibili ty requirement s for chart er comm issioners; it provides in part that :
No city officer or employee, wheth er elected or appoint ed, sha ll be eligible to a
place on th e comm ission. [Em pha sis added .]
A review of th e legi slat ive history demonstrat es that th e Legisl atur e included th is sent ence in th e origina l statut e in 1909 an d, although section 18 was am ended on five sep arat e occa sions, th e subs tan ce of th is sent ence ha s not bee n altered.
Rese ar ch reveals no report ed Michigan case law on th e question posed by your inquiry. OAG, 1943 -1944 , No 0-1798 , p 648 (Februar y 10, 1944 ), concluded that while a city plann ing comm issioner, as a city officer , is barr ed from simu ltan eously serving on a city chart er comm ission, if th e comm issioner resigned from th e plann ing comm ission, that comm issioner would be eligible to run as a cand idate for th e chart er comm ission. However, th e question wheth er a person cou ld becom e a can didat e for election to th e chart er comm ission while st ill serving as a member of th e plann ing comm ission, th en resign from th e plann ing comm ission if elected to th e chart er comm ission, was neith er asked nor addressed in OAG No 0-1798 .
A review of cases from oth er jur isdictions discloses two lines of auth ority on th e question wheth er th e t ime of eligibili ty of certa in persons to hold public office, when not oth erwise specified, mean s th e t ime of a person’s election to th e office or th e t ime th e person elected actua lly assum es th e office. These lines of auth orities ar e exam ined in Ann otat ion: Time as of which eligibili ty or ineligibili ty to office is to be determ ined, 88 ALR 812 , supplement ed by th e ann otat ion un der th e sam e t it le in 143 ALR 1026 .
The fir st line of auth ority des cribed in 88 ALR at 814 as th e minority view in th is countr y holds that eligibili ty for public office is to be determ ined as of th e dat e of one’s election. Rep rese ntat ive of th is line of auth ority is th e decision in S am uels v Hite, 35 Cal 2d 115 ; 216 P 2d 879 , 880 (1950 ), where th e Californ ia Supreme Court con cluded that where neith er th e stat e con stitut ion nor a statut e specifies th e t ime for eligibili ty, th e can didat e mu st be qua lified on th e dat e of th e election. Relying on S earcy v Grow , 15 Cal 117 , 121 (1860 ), th e court followed th e judicially approved definition of “eligible ” to mean “ca pable of being chosen.”
The se con d line of auth ority holds that th e term “eligible ” refers to capacity to hold th e office rath er than to be elected to office. Therefor e, if a person is qua lified to hold th e office at th e beginn ing of th e term of office, ineligibili ty at th e t ime of election to office is in con sequent ia l. Rep rese ntat ive of th is view is th e decision in S lat er v Varney, 136 W Va 406 ; 68 SE 2d 757 (1951 ), where th e West Virginia Supreme Court of Appe als con cluded that eligibili ty for a public office is th e capacity to hold th e office after being elected to it so that if an y disqua lificat ion is removed befor e assum ing th e office, it is immat erial. The S lat er case extensively cites th e cases holding th e two respe ctive view s an d con cludes that th e se con d line of auth ority represe nt s th e ma jority ru le in th is countr y. Id ., at 769 . 88 ALR at 813 mak es th e sam e stat ement .
The logic of th e ma jority ru le is more persua sive. Eligibili ty for public office should be determ ined with reference to con ditions existing at th e t ime of comm encement of th e term of office, an d not with reference to con ditions existing at th e t ime of th e election. This result is, of cour se, subject to an y con st itut iona l or statut ory provision that ma y spe cify a differ ent result.
Section 18 of th e Home Rule City Act is silent con cern ing at what t ime eligibili ty for th e office of chart er comm issioner should be determ ined. Moreover, th e quoted port ion of section 18 only limits eligibili ty for th e office of chart er comm issioner an d, except for a minimum reside ncy requirement , does not limit who ma y be elected to that position.1 Assum ing a city officer or employee is elected to th e city’s chart er comm ission an d, at an y t ime befor e assum ing th e office of city chart er comm issioner, removes th e potent ial disqua lificat ion by resigning th e city officer or employee position, that person would be eligible to per form th e dut ies of chart er comm issioner. The statut ory ineligibili ty never ar ises if th e person no longer holds city office or employment at th e t ime th e person actua lly assum es “a place” on th e city chart er comm ission.
It is my opinion, th erefor e, that a person serving as a city officer or employee ma y run for election to th e office of city chart er comm issioner but , if elected, mu st resign from th e city office or employment position befor e assum ing th e office of city chart er comm issioner.
J ENN IFE R M. GRANH OLM
Att orn ey Genera l
1Cf. Ball v Trenton Coun ty Clerk , 1 Mich App 1, 3; 133 NW2d 218 (1965 ) (ma ximum age requirement of 70 for person to be eligible to be “elected ” to judicial office, Const 1963 , art 6, § 19 , applied at t ime of election), an d OAG, 1997 -1998 , No 6946 , p 51 (J uly 25, 1997 ) (“[t]o be qualifi ed to serve as a judge of a tr ia l court ,” a person mu st be admitt ed to th e pra ct ice of law for at least 5 year s, Const 1963 , art 6, § 19(2), applied as of th e dat e of tak ing judicial office). (Em pha sis added .)
