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Opinion No. 5294

April 6, 1978


Police and fire department pension and retirement act required to contain provisions dealing equally with all members


Authority of retirement board to retain its own legal counsel

A city which has adopted the fire and police department pension and retirement act may not provide military service benefits for one group covered by the act which are different from benefits received by other groups covered by the same act.

Where the statute and the city charter so provide, the police and fire retirement board may retain its own legal counsel.

Honorable Bill S. Huffman

State Senator

16th District

The Capitol

Lansing, Michigan

After advising that the City of Madison Heights has adopted the fire and police department pension and retirement act by chapter 19 of its city charter, 1937 PA 345, MCLA 38.551 et seq; MSA 5.3775(1) et seq, hereinafter referred to as 'the Act', you have requested my opinion on the following questions:

1. May the amendment to 1937 PA 345, supra, which allows a member to purchase up to 6 years of his active military service with the approval of 3/5 vote of the local governing body be given to some members of the retirement system in their collective bargaining agreement without being given to other members, or must this apply equally to all members of the retirement system?

2. Does 1937 PA 345, supra, Sec. 2 allow the Madison Heights Police and Fire Retirement Board to retain legal counsel of its own choice?

Your first question refers to subsection 6(g) of the Act, which provides in pertinent part:

'. . . A city, . . . by a 3/5 vote of its governing body or by a majority vote of the qualified electors may provide to a member service credit for not more than 6 years active military service to the United States government who is employed subsequent to this military service upon payment to the retirement system of 5% of his full-time or equated full-time compensation for the fiscal year in which payment is made multiplied by the years of service that the member elects to purchase up to the maximum. . . .'

This provision is one of several local options contained in Sec. 6 of the Act. Subsection 6(e) of the Act contains an option for increasing the percentage retirement payment, which was discussed in OAG, 1973-1974, No 4811, p 126 (February 12, 1974). This opinion held that a city may not adopt separate percentage payments for policemen and firemen, because subsection 6(e) of the Act conferred no power to adopt two rates of increase and that the power conferred by the statute could not be extended by implication. In contrast, subsection 6(f) of the Act contains an option for determining 'average final compensation' based on three consecutive years of service, rahter than five consecutive years of service, if provided for in a collective bargaining agreement entered into between a municipality under this act and the appropriate recognized bargaining agent. Thus OAG, 1975-1976, No 5029, p ___ (June 30, 1976) held that the inclusion of three-year averaging in a collective bargaining agreement with either the police or fire department, did not require the inclusion of the same provision in a collective bargaining agreement with the other department.

Both opinions, it will be noted, were based upon particular statutory provisions of the respective subsections being interpreted.

Therefore, inasmuch as subsection 6(g), like subsection 6(e) of the Act, confers no statutory authority for the city to adopt the option for one collective bargaining unit to the exclusion of another collective bargaining unit, it is my opinion that military service credit must be available to all members of the police and fire retirement system equally.

Regarding your second question, the general rule of law provides that the city attorney provides legal services to all agencies of the city and that, in the absence of express provision by statute, city charters or ordinances, municipal boards and commissions have no authority to appoint and retain their own legal counsel. City of Flint v Board of Hospital Managers, 377 Mich 681; 142 NW2d 5 (1966); see also OAG, 1975-1976, No 4983, p ___ (June 25, 1976). However, with respect to the circumstances you describe, 1937 PA 345, supra, Sec. 2 provides:

'The retirement board created hereunder shall have power, and it shall be its duty to:

(2) Retain such legal . . . or other service as may be necessary for the conduct of the affairs of the retirement system; and make compensations for such services.'

Also, the Madison Heights City Charter states:

'SECTION 3.14. ATTORNEY-FUNCTIONS AND DUTIES a) The Attorney shall act as legal advisor to and be attorney and counsel for, the Council, Board and Administrative Officers, and shall be solely responsible to the Council.'

Therefore, it is my opinion that the Madison Heights Police and Fire Retirement Board may retain legal counsel.

Frank J. Kelley

Attorney General