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 -



Opinion No. 5187

May 2, 1977


Civil Service


Civil Service


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:

'Does the City Manager, under Act 78, have the power or authority to abolish the position of Chief of Police, as well as that of Fire Chief, and appoint a Public Safety Director? If not, what is the legal protocol to be followed in taking action against him? The City Attorney would represent the City Manager; who will represent the Civil Service Commission?'

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:

'. . . [W]e must give effect to the clear and unequivocal language of MCLA 38.511(b) [MSA 5.3361(b)], supra, that 'every position shall be filled only' in the manner set forth in that section. MCLA 38.511(b), supra, is equally clear that 'the appointing officer shall notify the civil service commission of any vacancy in the service which he desires to fill' . . .. Since the term 'appointing officer' as used in the act means the mayor or principal administrative officer of the city, such a reading of MCLA 38.511(b) supra, is consistent with the power of said officer to revise, alter, and reconstruct departments, including the abolition of positions, in furtherance of the public interest.' [Citations omitted.]

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

'All executive and admistrative offices, agencies and instrumentalities of the City and their respective powers and duties, except as otherwise provided by law or this Charter, shall be allocated among and within the following six (6) principal departments. (4) The Council based on recommendations of the City Manager, to the extent permitted by law, may create or abolish other departments, make changes in the assignment of functions among the 6 principal departments, or add to, or subtract from the functions allocated to any one department when it considers any change necessary for the effective administration of city government.'

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:

'. . . Provided, however, No member of any fire or police department within the terms of this act shall be removed, discharged, reduced in rank or pay, suspended or otherwise punished except for cause, . . ..'

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

Attorney General

(1) MCLA 38.517(a); MSA 5.3368

(2) MCLA 38.506; MSA 5.3356

(3) Defined at 1935 PA 78, Sec. 17; MCLA 38.517; MSA 5.3367, as every person or group of persons who, acting singly or in conjunction, as mayor, city manager, council, common council, commission or otherwise, is or are vested by law with power and authority to select, appoint, or employ any person to hold any office or employment.

(4) The Department of Police is thereafter listed as a principal department at Sec. 4.03, and the Department of Fire is listed as a principal department at Sec. 4.04 of the city charter.

(5) MCLA 38.514; MSA 5.3364

(6) MCLA 38.511; MSA 5.3361

(7) 1935 PA 78, Sec. 7; MCLA 38.507; MSA 5.3357

(8) MCLA 38.512; MSA 5.3362