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. 5362

September 13, 1978

OFFICERS & EMPLOYEES:

Vacancies in office

De facto officers

MUNICIPALITIES:

Members of legislative body who have vacated office by moving from community

A person who does not have a legal right to hold the office of councilman but nevertheless exercises that right under color of law is a de facto officer whose vote at council meetings must be counted.

Honorable Joyce Symons

State Representative

30th District

The Capitol

Lansing, Michigan

You have requested an opinion on the following question:

'Under the applicable provision of the Melvindale Charter and State law, may the vote of a councilman on matters of public concern be counted where the councilman prior to the vote had moved his residence outside the City?'

My office is informed that the councilman in question did not seek reelection to the office when his term expired.

Const 1963, art 4, Sec. 38 empowers the legislature to enact laws concerning the circumstances under which a public office will be considered vacant. In conformity with this provision, 1846, ch 15, Sec. 3; MCLA 201.3; MSA 6.693, provides in pertinent part:

'Every office shall become vacant, on the happening of any of the following events, before the expiration of the term of such office:

4. His ceasing to be an inhabitant of this state; or, if the office be local, of the district, county, township, city, or village, for which he shall have been appointed, or within which the duties of his office are required to be discharged; . . ..'

Thus, it is clear that a city officer who has removed his residence from the corporate limits of the city within which the duties of his office were to be discharged has vacated his office. II OGA, 1957-1958, No. 3277, p 213 (August 4, 1958). However, as noted in II OAG, 1957-1958, No 3241, p 112 (April 9, 1958), where an officer changes his residence so that he no longer resides in the area that he was elected to serve, but continues to exercise the powers of his office, the proper procedure to remove that officer from his office is to initiate a quo warranto proceeding.

While an officer may have vacated his office, it does not follow that official actions taken by such an officer are void. One who becomes disqualified to hold office while in office but continues to exercise the duties of his office is referred to as a de facto officer.' The Board of Auditors of the County of Wayne v Benoit, 20 Mich 176; 4 Am Rep 382 (1870). Thus, as noted in OAG, 1952-1954, No 1886, p 467 (December 28, 1954), a city office may be vacant, and yet the actions of a person occupying that office de facto will be valid and cannot be challenged.

A factual situation similar to that posed in your question was considered by the Michigan Supreme Court in Greyhound Corp v Public Service Commission, 360 Mich 578; 104 NW2d 395 (1960). This case involved a challenge by the Greyhound Corporation to an order of the Public Service Commission granting a special rate exemption to United Parcel Service of Detroit, Inc. The challenge was based on the fact that the deciding vote was cast by a commissioner who had allegedly moved to California and thus had vacated his office because of the application of 1846, ch 15, Sec. 3, supra. The court refused to overturn the order of the Public Service Commission on this ground, holding that the commissioner was a 'de facto officer' and that the order therefore could not be collaterally attacked by challenging the officer's right to sign the order.

In summary, a person who does not have a legal right to hold the office of councilman but who nevertheless exercises that right under color of law is a de facto officer whose vote at council meetings must be counted.

Frank J. Kelley

Attorney General