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Opinion No. 5603

December 4, 1979


County executive requiring prospective appointees to sign letter of resignation


County executive requiring prospective appointees to sign letter of resignation

A county executive may not solicit a signed, undated letter of resignation from a prospective county department head.

The Honorable Jerome T. Hart

State Senator

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the legality of the Bay County Executive requiring signed, undated letters of resignation from prospective appointees prior to their appointment as head of a county department.

This question has come before courts in other states and these courts have held that a signed, undated letter of resignation from a prospective public employee as a condition of appointment is void because a person may not resign a public office before appointment to that office.

In Dolphin v Mayor and Council of Town of Learny, et al, 116 NJL 58, 59-60; 181 A 644, 645 (1935), one of the most frequently cited cases on this point, the Supreme Court of New Jersey explained the theory and reasoning underlying the prohibition of obtaining signed, undated letters of resignation prior to appointment.

'. . . The obtaining of a resignation before appointment is obviously detrimental to the public interest. The town had fixed a term of office to insure an independent official. A resignation given before appointment even though not recalled, if valid, clothed a member of the council with a power of summary removal, a power not granted by ordinance and not to be sanctioned in a government of law.

'This case bears a striking resemblance to People ex rel. Dibelka v. Reinberg, 263 Ill. 536, 105 N.E. 715, 717, L.R.A. 1915E., 401, Ann.Cas. 1915C, 343. It was there held that where a mayor authorized to appoint a board of education procured undated resignations from his prospective appointees the resignations, though not recalled by the appointees after their appointment, were ineffectual. The court said: 'The authorities do not appear to be numerous upon the question, as in the nature of things such a question would rarely arise, but all the authorities we have been able to find hold a man cannot resign an office before he is an officer. Mechem on Public Officers (section 410) says: 'Upon the principle that one cannot resign what he does not yet possess, it is held that one who has not been elected to a public office cannot resign the same, or, if elected, cannot resign until the time has arrived when he is entitled by law to possess the same and he has taken the oath and given the required bond and entered upon the discharge of his duties.' 23 Am. & Eng. Ency. of Law, 421; In re Corliss, 11 R.I. 638, 23 Am. Rep. 538, and Miller v Board of Supervisors of Sacramento County, 25 Cal. 93, are to the same effect. In our judgment the rule announced in these authorities is sound, but if no authority could be found upon the question it would seem the only conclusion which could be reached is that a man cannot resign an office to which he has not been elected or appointed. It was never contemplated that where the law conferred the power to appoint, but not to remove, the power to remove might be conferred by requiring a person, before appointment, to place his resignation in the hands of the appointing power. Such a paper is invalid when signed, and lapse of time cannot render it valid." [Emphasis added]

See also Commonwealth v Schofield, 2 D & C 3rd 587 (Pa, 1975), Jackson v White, 218 So C 311; 62 SE2d 776 (1950), and 56 Am Jur 2d, Municipal Corporation, Sec. 304.

Therefore, it is my opinion that the solicitation by a county executive of signed, undated letters of resignation from prospective county department heads is invalid.

Frank J. Kelley

Attorney General