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. 5238

November 2, 1977

MEETING:

Action by majority of a quorum

TOWN MEETINGS:

Action by majority of a quorum

TOWNSHIP BOARD:

Action by a majority of a quorum Vacancies

TOWNSHIP SUPERVISOR:

Vacancy

A majority of a quorum of a township board may vote to appoint a township supervisor to fill a vacancy in the office of township supervisor.

The Honorable Russell Hellman

State Representative

The Capitol

P. O. Box 119

Lansing, Michigan 48902

You have requested my opinion concerning the appointment of a township supervisor to replace the former supervisor who resigned before completion of his term.

The township board involved consists of five members. One of the members, the supervisor, has resigned. Thereafter, the remaining four members met to elect another supervisor. Two of the members voted for one candidate, one member voted for a different candidate, and the remaining member abstained. Your question is: 'Has the candidate who received two votes been validly elected township supervisor?' The answer is 'Yes.'

Less than the full membership of a township board may meet to carry on the business of the township RS 1846, Ch 16, Sec. 70; MCLA 41.70; MSA 5.62, provides, in part, as follows:

'The supervisor, 2 trustees, the township treasurer and the township clerk, shall constitute the township board, any 3 of whom shall constitute a quorum for the transaction of business: . . .'

It may also be noted that RS 1846, chap 1, Sec. 3c; MCLA 8.3c; MSA 2.2.2(3), provides:

'All words purporting to give a joint authority to 3 or more public officers or other persons shall be construed as giving such authority to a majority of such officers or other persons, unless it shall be otherwise expressly declared in the law giving the authority.'

Under the facts stated, a quorum of the township board was present. Therefore, the board could properly transact business at that meeting.

The appointment of a township officer to fill a vacancy is controlled by section 370 of the Michigan Election Law, 1954 PA 116, Sec. 370; MCLA 168.370; MSA 6.1370, which provides in part:

'Whenever a vacancy shall occur in any elective or appointive township office, except as hereinafter specified, it shall be filled by appointment by the township board of the township, and the person appointed shall hold the office for the remainder of the unexpired term. . . .'

There is no mention in this statute that more than a majority vote of the members is required to take this action. Thus, a simple majority vote of the members attending a township board meeting at which a quorum is present is sufficient to fill a vacancy in the office of supervisor.

However, in this case, no candidate received a majority vote due to the abstention of one board member. Under these circumstances, the issue may be resolved by resorting to the common law rule governing the voting procedure of the legislative body of a municipal corporation.

The general rule has been stated in an Annotation entitled: Abstention from Voting of Member of Municipal Council Present at Session as Affecting-Requisits Voting Majority, 63 ALR3d 1072, 1082, II. A. Sec. 5(a).

'Speaking in terms of a broad general rule of law, it would seem to be well settled that in the absence of some express statutory or other regulation to the contrary, when a quorum of a municipal council is present, a majority of that quorum has the right to take any action which is within the powers of the entire body. Furthermore, in a substantial number of cases, the courts have expressly or impliedly held or recognized that, given the presence of a quorum, it is not essential to the validity of action taken or authorized by such majority that at least a quorum should actually vote, or that the action should receive the favorable votes of a majority of all members present, it being frequently stated that the exercise of the proper powers and authority of a city council ought not, and may not, be impeded or prevented by mere abstention from voting (or by the casting of a blank ballot) on the part of one or more of the members present.' (Emphasis added)

It is, therefore, my opinion that the candidate who received the two votes has been validly elected as township supervisor.

Frank J. Kelley

Attorney General