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Opinion No. 5301

May 10, 1978


Characterization as 'officer' or 'employee' to determine eligibility for office based upon residency


Residency requirements of officers

A building inspector is an employee, not an officer, and therefore a non-resident may be appointed to that position despite a village charter provision requiring officers to be residents.

Honorable James DeSana

State Senator

The Capitol

Lansing, Michigan

You have inquired whether the post of building inspector for the Village of Carleton is an office within the meaning of the Charter of said village and, therefore, subject to the residency requirements described in the Village of Carleton Charter, Ch 1, Sec. 7.

The Charter of the Village of Carleton provides in Chapter 1, Sec. 7:

'No person shall be elected or appointed to any office unless he shall be an elector of said Village. . . .'

Chapter 1, Sec. 2 of the charter authorizes the president with the consent of the Village Council to appoint such other officers 'as shall be provided for by resolution or ordinance of the Council, and the Council may, from time to time, provide by ordinance or resolution for the appointment of such other officers whose election or appointment is not herein specifically provided for.'

The function of the building inspector is to determine whether structures and mobile home parks are in compliance with village ordinances. If an inspection made by him reveals a lack of compliance, it is his duty to send appropriate notices to the persons in violation with the various ordinances. In this regard, these duties resemble those of a law enforcement officer.

The general principle which differentiates an office holder from the mere employee was first enunciated by Justice Cooley in The People ex rel Throop v Langdon, 40 Mich 673 (1879). The court held that the office of chief clerk in the Detroit Assessor's Office was not an office. The reason for this holding is contained at page 682:

'An office is a special trust or charge created by competent authority . . . The officer is distinguished from the employee in the greater importance, dignity and independence of his position; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or nonfeasance in office, and usually, though not necessarily, in the tenure of his position. . . .'

The rule concerning the distinction between a public officer and an employee was enunciated with clarity in People v Freedland, 308 Mich 449; 14 NW2d 62 (1944):

'. . . We believe the correct rule is stated in Mechem on Public Offices and Officers, Secs. 1 and 2, as follows:

"A public office is the right, authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.'

"We apprehend that the term 'office," said the judges of the supreme court of Maine, 'implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office; and the exercise of such power within legal limits constitutes the correct discharge of the duties of such office. The power thus delegated and possessed may be a portion belonging sometimes to one of the three great departments and sometimes to another, still it is a legal power which may be rightfully exercised, and in its effects it will bind the rights of others, and be subject to revision and correction only according to the standing laws of the State."

'The cases indicate that duties of a public officer must be more than those of a mere agent or servant. He must be endowed by law with power and authority to use his own discretion. . . .

'The rule is accurately stated in State, ex rel. Barney, v Hawkins, supra, where the court said:

"After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional." pp 445-448

The principles quoted above, particularly the latter portion which enumerates the characteristics of an officer, have been followed consistently by Michigan courts. In Kent County Register of Deeds v Kent County Pension Board, 342 Mich 548; 70 NW2d 765 (1955), the court held that a deputy register of deeds holds a public office, and in Raven v Board of Commissioners of Wayne County, 32 Mich App 4; 188 NW2d 197 (1971), that a deputy medical examiner is an official. However, in Solomon v Highland Park Civil Service Commission, 64 Mich App 433, p 438; 236 NW2d 94 (1975), the court held that a policeman is not a public officer stating:

'A public officer in the general everyday acceptance of the term is a special classification of those involved in government at what may be described as in an executive classification, whether his elevation to that status is elective or appointive. His compensation is fixed by legislative action, state or local. He does not collectively bargain for his wages or working conditions, and in no case that we know of are his duties and the standard of performance therefor agreed on by labor contracts. . . .' 64 Mich App 433, 437-438; 236 NW2d 94

It is therefore my opinion that a building inspector does not hold a public office and need not be a resident of the village in order to serve in that position.

Frank J. Kelley

Attorney General