STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5187

May 2, 1977

POLICE:

Civil Service

FIREMEN:

Civil Service

CITIES:

Civil Service Act for municipal police and fire departments

Where the charter of a city provides that the council, based on recommendations of the city manager, may create or abolish departments and make changes in the assignment of functions among the departments, the city manager may not abolish the positions of police and fire chiefs and establish a public safety director in their place. Such action may only be taken by the council based on recommendations of the city manager.

Honorable William R. Keith

State Representative

33rd District

The Capitol

Lansing, Michigan 48901

By a copy of a letter from the Garden City Civil Service Commission, you have requested my opinion upon the following questions:

The civil service act for municipal police and fire departments, 1935 PA 78; MCLA 38.501 et seq; MSA 5.3351 et seq, was adopted by referendum of the electors of the City of Garden City on September 1, 1964, pursuant to Sec. 17(a) of said act. ⁽¹⁾ Police and fire chiefs are included within the application of the act by Sec. 6 thereof. ⁽²⁾ The first part of your question inquires as to the authority of the city manager to abolish the positions of the police and fire chiefs; a distinction should be recognized between the abolition of positions, and the removal of officers from their positions. It has been decided by the court of appeals that when positions become vacant, they are not required to be filled by the 'appointing power.' ⁽³⁾ See Day v Gerds, 54 Mich App 547; 221 NW2d 221 (1974); and Small v Saginaw City Manager, 39 Mich App 418, 422-423; 197 NW2d 850, 852 (1972), leave denied 387 Mich 797. In Small, the court stated:

The charter of the City of Garden City provides at Art IV, Sec. 4.01:

While the City Manager may recommend changes in the assignment of functions among the six principal departments, or additions or subtractions of functions, the authority to do so is granted to the City Council. The City Manager does have the authority to appoint and remove department directors subject to the approval of the City Council, as provided by Sec. 4.02 of the City Charter.

The power of removal would further be subject to the provisions of 1935 PA 78, supra. Section 14 ⁽⁵⁾ provides in pertinent part:

See also Konyha v Mt. Clemens Civil Service Commission, 393 Mich 422; 224 NW2d 833 (1975); Day v Gerds, supra; and Killingsworth v Police and Fire Department, Civil Service Commission of the City of Saginaw, 12 Mich App 340; 162 NW2d 826 (1968).

Regarding the appointment of a public safety director, once such position is properly established, 1935 PA 78 requires that every position be filled only as provided in Sec. 11 ⁽⁶⁾; that no person, regardless of rank, be appointed or promoted by any means other than those prescribed in the act ⁽⁷⁾; and that vacancies above the rank of firemen or patrolmen be filled as provided in Sec. 12 ⁽⁸⁾. The appointing power notifies the Civil Service Commission of the vacancy desired to be filled, and requests certification of an eligible person. The Civil Service Commission certifies such eligible, and the appointing power then appoints that eligible person.

Therefore, it is my opinion that the City Manager does not have the power or authority to abolish the positions of police and fire chief, or establish the position of public safety director. The City Manager, subject to the approval of the City Council, would have the authority to notify the Civil Service Commission of a vacancy in a properly established position of public safety director and to request the certification of eligibles. When the eligible had been certified by the Civil Service Commission, the City Manager would appoint that eligible person to fill the position.

Regarding your question concerning legal representation, OAG, 1975-1976, No 4983, p___ (June 25, 1976) ruled that the act authorizing establishment of the civil service commission for fire and police departments does not authorize the commission to retain its own legal counsel.

Frank J. Kelley