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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6165 June 29, 1983 CONSTITUTIONAL LAW: Const 1963, art 4, Sec. 8--leave of absence from public employment LEGISLATURE: Leave of absence from public employment Resignation from public school employment by a member of the Legislature is required in order to comply with Const 1963, art 4, Sec. 8. A member of the Legislature who fails to resign from public school employment vacates the public school employment position upon acceptance of the legislative office. Honorable Robert A. DeMars State Representative The Capitol Lansing, Michigan You have requested my opinion on a question which may be phrased as follows: Does an unpaid leave of absence from public school employment satisfy the requirements of Const 1963, art 4, Sec. 8 for a member of the Legislature? In Const 1963, art 4, Sec. 8, the people have provided: 'No person holding any office, employment or position under the United States or this state or a political subdivision thereof, except notaries public and members of the armed forces reserve, may be a member of either house of the legislature.' The Address to the People relating to Const 1963, art 4, Sec. 8 states, in pertinent part: 'This is a revision of Sec 6, Article V, of the present [1908] constitution to exclude from serving as legislators officers and employees of federal, state and local units of government. 'The provisions of the new section will allow people holding offices or positions to run for the legislature, but since dual office-holding is prohibited a legislator-elect would be obliged to resign his prior office or employment as a condition precedent to taking his seat.' (Emphasis added.) 2 Official Record, Constitutional Convention 1961, p 3372 Const 1963, art 4, Sec. 8 applies to both state and local units of government. Thus, it applies to public school districts, regardless of whether they are considered state or local units of government. See, Const 1963, art 8, Sec. 2 and School Dist of the City of Lansing v State Board of Education, 367 Mich 591, 595; 116 NW2d 866 (1962). A leave of absence from public employment connotes a continued employee-employer relation. OAG, 1963-1964, No 4394, p 525 (December 10, 1964). Resignation from public employment is required in order to satisfy Const 1963, art 4, Sec. 8. In the event a person having public employment should thereafter become a member of the Legislature without resigning such constitutionally incompatible public position, the effect would be to vacate that public position by operation of law. See, Attorney General, ex rel Moreland v Common Council of City of Detroit, 112 Mich 145, 174; 70 NW 450 (1897). It is my opinion, therefore, that resignation from public school employment is required in order to comply with Const 1963, art 4, Sec. 8. It is my further opinion that a member of the Legislature who fails to resign from public school employment vacates the public school employment position upon acceptance of the legislative office. Frank J. Kelley Attorney General
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