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. 5530

August 6, 1979

HOME RULE CITIES:

Vacancy in office of member of city council

Where the members of the city council of a home rule city are unable to agree upon the appointment of a member to fill a vacancy in the office of member of the city council, and the city charter makes no other provision therefor, the vacant office of member of the city council shall be filled at the general election to be held in November of 1979.

Honorable Matthew McNeely

State Representative

The Capitol

Lansing, Michigan 48909

Your correspondence indicates that a vacancy exists in the office of city councilman in the City of Ecorse, and that the city council is deadlocked on appointment to fill the vacancy for the remaining term of office, which expires in November, 1979. Opinion is requested upon the following question:

When a vacancy exists on a seven member city council, and the six remaining councilmen are deadlocked on appointing to fill the vacancy, can a special election be called for such purpose?

The Charter of the City of Ecorse, Chapter IV, Sec. 8, hereinfafter referred to as Charter, provides:

'If a vacancy occurs in any elective office, the city council shall within two weeks after the determination of such vacancy appoint an eligible person to fill such vacancy until the next regular municipal election, when such office shall be filled by election.'

Chapter I of the Charter, supra, provides:

'The municipal corporation . . . known as the 'City of Ecorse' . . . shall be a body corporate and politic . . . and as such shall be vested with any and all powers which cities are or may hereafter be required or permitted to exercise or to provide for in their charters under the constitution and laws of the State of Michigan, together with such implied and incidental powers as are possessed by municipal corporations in this State, as fully and completely as though the powers were specifically enumerated herein, except for such limitations and restrictions as are provided in this charter, and no enumeration of particular powers of the city in this charter shall be held to be exclusive.'

Chapter III, Sec. 10(b) of the Charter provides:

'Special elections may be called by resolution of the City Council setting forth the time, purpose and place of such special election; provided that no more than two such special elections shall be called in any one year.'

The Charter of the City of Ecorse does not contain an express provision calling for a special election if the city council is unable to agree upon the appointment of a member to fill a vacancy in the elective office of member of the city council. Unlike the fourth class cities act which authorizes fourth class cities to fill vacancies in elective offices by appointment or special election, 1895 PA 216, Sec. 17, MCLA 85.17; MSA 5.1639, neither the home rule cities act nor any other statute makes provision to fill a vacancy in the office of member of a city council of a home rule city by special election.

A similar issue arose in Burns v Stenholm, 310 Mich 639, 648-649; 17 NW2d 781 (1945), where the members of a home rule city commission were unable to fill a vacancy in the office of member of the commission because of the nonaction of one member. The court rendered its decision on February 20, 1945 and noted that:

'. . . a biennial election in the city of Ironwood will be held in April, 1945, for the purpose of electing city officials as is provided for in the city charter. In our opinion the practical solution of the problem is for the election officials of the city of Ironwood to immediately take the necessary steps to follow the provisions of the city charter and to elect a commissioner at the April election in 1945 to fill the vacancy caused by the resignation of John A. Sabol, and at the same election to elect a commissioner to fill the unexpired term of the late Edward A. Marander.'

The next general election in the City of Ecorse will be held on the Tuesday following the first Monday in November of 1979 in accordance with 1954 PA 116, Sec. 446(a) et seq, as amended by 1970 PA 239; MCLA 168.644(a) et seq; MSA 6.1644(a) et seq. The primary election will be held on the Tuesday following the second Monday in September of 1979. The last day for filing petitions for offices to be filled at that election is July 24, 1979. It is also noted that the unexpired term of the vacant office terminates on November 12, 1979. The imminence of the general election makes it impossible for a special election to be held in the City of Ecorse to fill the vacancy in the office of member of the city council.

Therefore, it is my opinion that the vacant office of member of the city council of Ecorse will be filled at the general election in November of 1979.

Frank J. Kelley

Attorney General