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. 5302 May 12, 1978 ELECTIONS: Notification to candidate in writing of rejection of nominating petition MUNICIPALITIES: City attorney as member of city election commission INCOMPATIBILITY: City attorney as member of city election commission Where a city charter provides that the city clerk notify a candidate in writing of insufficiency of signatures on a petition, there is no requirement that the city clerk notify a candidate in writing that the nominating petitions have been rejected for late filing. Where the election law authorizes a city attorney to serve as a member of the city election commission, it is not incompatible for a city attorney to serve in this capacity. Nevertheless, to avoid the possibility or appearance of impropriety, a city attorney who is a member of the election commission should disqualify himself from participating in any review of a petition for any office of which he has personally circulated a petition for a candidate therefor. Honorable Gary M. Owen State Representative 22nd District The Capitol Lansing, Michigan You have requested my opinion upon the following questions: 1. When nominating petitions for the office of mayor are not accepted by the city clerk because the deadline for filing has passed, does section 8.8 of the Ypsilanti City Charter entitle the candidate to notification of same in writing? 2. May the city attorney be a member of the city election commission, and also circulate nominating petitions for a candidate for the office of mayor? Sections 8.6 and 8.8 of the Charter of the City of Ypsilanti respectively provide in pertinent part: 'Nominating petitions shall be filed with the City Clerk not later than 4:00 p.m. eastern standard time, on the seventh Monday preceding the regular City primary election. The City shall publish notice of the last day and time for filing nomination petitions at least one (1) week and not more than three (3) weeks before that date.' 'The Clerk, shall within five (5) days after the filing date of a nominating petition, determine the sufficiency of the signatures on each petition filed, and, if he finds that any petition does not contain the required number of legal signatures or . . . he shall immediately notify the candidate in writing of the insufficiency of his petition. . . .' Section 8.8, supra, requires notification in writing only when nominating petitions have been accepted for filing, but later found to contain insufficient number of signatures, to afford the candidate the opportunity of circulating further petitions for additional signatures until the deadline for filing same. It is therefore my opinion that section 8.8 of the Charter of the City of Ypsilanti does not require notification in writing when nominating petitions are not accepted for filing by reason of expiration of the deadline for same. Responding to your second question, section 25 of the Michigan election law, 1954 PA 116; MCLA 168.25; MSA 6.1025, provides that 'unless otherwise provided by a charter adopted by a majority vote of the people voting on the adoption thereof, the city clerk, the city attorney and the city assessor shall constitute the board of city election commissioners.' The city attorney is expressly authorized by this statute to be a member of the city election commission, although such section authorizes a city to provide otherwise by charter. Section 8.16 of the Charter of the City of Ypsilanti provides that the election commission shall consist of the clerk, the mayor and the city attorney. While it is my opinion that a city attorney may also serve as a member of the city's election commission, it should be recognized that he is an officer of the city (a1) called upon to perform functions as an election commissioner, inter alia, which would not always be compatible with his individual political activities. For example, when a city attorney who is a city election commissioner circulates nominating petitions on behalf of candidates for city office and does so in his individual capacity, he may later be requested to advise upon or determine the sufficiency or validity of all nominating petitions in his official capacity either as city attorney or city election commissioner, including both opposing petitions and petitions of which he was a proponent in his personal capacity. This places such official in an inconsistent position with the opportunity for, or appearance of, possible bias. Due process questions might be raised about the impartiality of the city election commission, when the election commission has occasion to deliberate upon competing nominating petitions, etc. To avoid the possibility or appearance of impropriety, a city attorney who is a member of the city election commission should disqualify himself from participating in any review of a petition for any office of which he has personally circulated a petition for a candidate therefor. Frank J. Kelley Attorney General (a1)