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Opinion No. 5186

April 22, 1977


Police and Fire Civil Service Act


Police and Fire Civil Service Act

A statutory provision authorizing preference in the civil service examination of police and firemen to persons who have received police cadet training is valid where preference points for such activity is included in an examination score. A practice of advancing cadets on the entry level eligibility list without regard for examination scores would be inconsistent with the requirements of the statute providing for police and firemen civil service.

Honorable Sal Rocca

State Representative

71st District

State Capitol

Lansing, Michigan

You have requested my opinion upon the following question:

May a city which has adopted the police and fire civil service act, 1935 PA 78, (1) give preference to police cadets pursuant to the police cadet training act, 1970 PA 201, (2) by placing them at the top of the entry level eligibility list for patrolman?

1970 PA 201, supra, Sec. 1 provides in pertinent part:

'. . . A police cadet recommended for advancement to policeman shall receive preferential consideration for the position over other applicants. . . .'

In the enactment of 1970 PA 201, supra, the legislature was aware of the following pertinent provisions of 1935 PA 78, supra, Sec. 7, 11 and 12:

'Sec. 7. On and after the date this act takes effect, appointments to and promotions in all paid fire and/or police departments of cities, . . . shall be made only according to qualifications and fitness to be ascertained by examinations, which shall be competitive, and no person shall be appointed, reinstated, promoted or discharged . . . regardless of rank or position, in any fire or police department of any city, . . . in any manner or by any means other than those prescribed in this act.'

Sec. 11. (a) The civil service commission, in each city, . . . shall make rules providing for examinations of positions in the paid fire or police departments in each city, . . . under this act, for appointments and for such other matters as are necessary to carry out the purposes of this act. . . .

'(b) Every position, unless filled by reinstatement, shall be filled only in the following manner: The appointing officer shall notify the civil service commission of any vacancy in the service which he desires to fill, and shall request the certification of eligibles. The commission shall forthwith certify, from the eligible list, the name of the person who received the highest average at preceding examinations held under the provisions of this act within a period of 2 years next preceding the date of such appointment. The appointing officer shall, thereupon, with sole reference to the relative merit and fitness of the candidate, make the appointment so certified. . . .'

Sec. 12. (a) All examinations for positions shall be practical in their character and shall relate to such matters, and include such inquiries, as will fairly and fully test the comparative merit and fitness of the persons examined to discharge the duties of the employment sought by them. . . .'

1970 PA 201 does not provide for the manner in which preferential consideration is to be implemented, and such a determination would be within the authority of the police and fire civil service commission under its rule-making power pursuant to 1935 PA 78. However, the preference provision must be read in light of the requirements of 1935 PA 78, and may not be interpreted in such a manner as to render the two acts inconsistent, if they are capable of harmonious interpretation. If 1970 PA 201 is interpreted as authorizing the arbitrary advancement of police cadets to the top of the entry level eligibility list for patrolmen without regard for examination results and solely because they are cadets, then the preference is extraneous from the examination process and the requirements of 1935 PA 78 quoted above are contravened with a resulting inconsistency between the two acts.

The preference provision is capable of an interpretation harmonious with 1935 PA 78, only if it is interpreted as authorizing preference within the examination process, such as the awarding of preference points to be included in the examination score; examples of this procedure are where preference is given for experience or veterans' preference. The Attorney General has issued an opinion that police and fire civil service commissions authorized by 1935 PA 78, supra, may award preference points to veterans under the veterans' preference act, 1897 PA 205, MCLA 35.401 et seq; MSA 4.1221 et seq. 2 OAG, 1957-58, No 3240, p 148 (May 21, 1958). I recently issued OAG, 1976, No 5101, p ___ (August 23, 1976), which found that relevant experience may be used as a factor of determining the merit and fitness of persons examined for promotion, and therefore that the allowance of points for periods of service is within the statutory standard.

Therefore, it is my opinion that 1970 PA 201, supra, authorizes the allowance of preference in the examination process, consistent with 1935 PA 78, supra, and that the police and fire civil service commission is authorized to promulgate regulations for such preference consistent with the requirements of both acts. However, a practice of advancing cadets on the entry level eligibility list without regard for examination scores is inconsistent with the requirements of 1935 PA 78 and is neither authorized nor contemplated by the preference provision of 1970 PA 201.

Frank J. Kelley

Attorney General

(1) MCLA 38.501 et seq; MSA 5.3351 et seq

(2) MCLA 38.521; MSA 5.3372