STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5395

December 11, 1978

SCHOOLS AND SCHOOL DISTRICTS:

Removal from office of a member of a board of education of a local school district

OFFICERS AND EMPLOYEES:

Removal from office of a member of a board of education of a school district

GOVERNOR:

Authority to remove from office a member of a board of education of a local school district

CONSTITUTION OF MICHIGAN:

Art 5, Sec. 10 (Governor's power to remove from office elective or appointive officers)

Art 7, Sec. 33 (removal from office of an elected officer of a political subdivision)

Art 4, Sec. 38 (legislation authorizing the manner of filling vacancies)

The Governor has no authority to remove from office a member of a board of education of a local school district.

When the majority of the members of a board of education of a school district has been recalled, the Governor is authorized to fill interim vacancies. This authority of the Governor is based on Const 1963, art 4, Sec. 38 and does not impinge upon the constitutional authority of the State Board of Education.

Dr. John W. Porter

Superintendent of Public Instruction

Michigan National Tower

Lansing, Michigan 48933

You have requested my opinion on two questions which may be stated as follows:

Removal of public officers from office is governed by two sections of the Constitution of 1963. One is Art 5, Sec. 10, which provides:

The second section is Art 7, Sec. 33, which provides:

These two sections are derived from Const 1908, art 9, Secs. 7 and 8, respectively. Const 1963, art 5, Sec. 10 essentially duplicates the language of Const 1908, art 9, Sec. 7, except that under Const 1908, art 9, Sec. 7, the Governor's power was limited to periods when the legislature was not in session. Const 1908, art 9, Sec. 8, however, provided as follows:

Clearly, under the 1908 Constitution, removal of members of boards of education of local school districts was governed by Const 1908, art 9, Sec. 8 rather than Const 1908, art 9, Sec. 7. The successor section, Const 1963, art 7, Sec. 33, however, does not enumerate the units of government to which it applies. Instead, it employs the general term 'political subdivision.' Consequently, we must refer to the Official Record of the Constitutional Convention to ascertain whether the drafters intended this section to apply to members of school boards. Burdick v Secretary of State, 373 Mich 578; 130 NW2d 380 (1964).

Const 1963, art 7, Sec. 33 was originally Committee Proposal 42e. As introduced, this proposal was verbatim the language of Const 1908, art 9, Sec. 8. Committee Proposal 42e was passed as introduced, without amendment or significant debate, and referred to the committee on style and drafting. 1 Official Record, Constitutional Convention 1961, p 841.

The committee on style and drafting struck the phraseology 'county, city, village, township or school district' and substituted 'political subdivision,' resulting in the section's present language. This change was obviously in response to the suggestion of Delegate Glenn Allen which appears at 1 Official Record, Constitutional Convention 1961, pp 840-841, as follows:

Subsequently, the committee reported the revised proposal to the convention as being without 'any substantive change.' The convention then adopted Const 1963, art 7, Sec. 33 as proposed by the committee on style and drafting. 2 Official Record, Constitutional Convention 1961, p 2971.

The Address to the People also notes that Const 1963, art 7, Sec. 33 is:

Removal of members of boards of education of local school districts is, thus, governed by Const 1963, art 7, Sec. 33 rather than by either Const 1963, art 5, Sec. 10 or Const 1963, art 8, Sec. 3. Under Const 1963, art 7, Sec. 33, a school board member may be removed from office '. . . in the manner and for the causes provided by law.'

This section is not self-implementing.

An examination of the statutes reveals no express statutory provision authorizing the Governor to remove a member of a board of education from office. ⁽¹⁾

In answer to your first question, it is my opinion, therefore, that the Governor has no authority to remove from office a member of a board of a education of a local school district.

Turning to your second question, the filling of vacancies in office is governed by Const 1963, art 4, Sec. 38, which provides:

As there is no provision in the Constitution of 1963 for the filling of vacancies in the office of member of the board of education of local school districts, the legislature may provide by law for the filling of such vacancies.

Sections 1103, 1104 and 1105 of the School Code of 1976, 1976 PA 451, MCLA 380.1 et seq; MSA 15.4001 et seq, provide for the cases in which the office of member of the board of education shall be deemed vacant and the manner of filling such vacancies. These sections do not specifically address the case of a majority of the members of a board of education being recalled.

However, Sec. 1105 does provide that each member is subject to recall '. . . in the manner prescribed in sections 951 to 976 of Act No. 116 of the Public Acts of 1954, as amended. . . .' (MCLA 168.951-168.976; MSA 6.1951-6.1976) 1954 PA 116, Sec. 970 in turn authorizes the Governor, when a majority of a board has been recalled, to appoint persons to fill the interim vacancies existing between the recall of the incumbents and the election of their successors.

In answer to your second question, it is my opinion that, when the majority of the members of a board of education of a local school district has been recalled, the Governor's statutory authority to fill interim vacancies is based on Const 1963, art 4, Sec. 38 and does not impinge on the constitutional authority of the State Board of Education.

Frank J. Kelley