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. 5613

December 21, 1979

BOARDS AND COMMISSIONS:

Reasonable period in which to fill vacancies

OFFICERS AND EMPLOYEES:

Reasonable period to fill vacancies in office

COUNTY BOARD OF COMMISSIONERS:

Authority to determine compensation of members of board of county road commissioners

COUNTY BOARD OF ROAD COMMISSIONERS:

Authority of county board of commissioners to determine compensation of members of county board of road commissioners

CONSTITUTION OF MICHIGAN:

Art 7, Sec. 8 (authority of county board of commissioners)

In the event that a county board of commissioners neglects to make the appointments to fill vacancies on the county road commission after expiration of a reasonable period of time, an action of mandamus may be instituted to compel the board to make the appointments.

Seven months is an unreasonable period of time to leave a public office vacant.

A board of county road commissioners may determine that its members shall serve on a part-time basis. However, the county board of commissioners, with the limitation that the county board of commissioners may not diminish the annual salary of a road commissioner during the term for which the commissioner has been elected, has authority to determine the compensation to be paid to the members of the road commission and may fix the compensation equivalent to payment on a part-time basis.

Honorable Richard Fitzpatrick

State Representative

The Capitol

Lansing, Michigan 48909

Calhoun County has had two vacancies on the Calhoun County Board of Road Commissioners for over seven months.

You have requested my opinion on the following two questions:

1. What is a reasonable period of time governing county road commissioners' appointments?

2. May a county board of commissioners provide that the county road commission is to serve on a part-time basis?

Responding to your first question, Const 1963, art 7, Sec. 16 provides in pertinent part:

'. . . The Legislature may provide the powers and duties of counties in relation to highways, bridges, culverts and airports; may provide for county road commissioners to be appointed or elected, with powers and duties provided by law . . .'

The Legislature has provided for the appointment or election of county road commissioners, 1909 PA 283, Sec. 6; MCLA 224.6; MSA 9.106. Although that section contains no express mention of the phrase 'reasonable amount of time', the duty to provide for an election or to make an appointment within a reasonable amount of time is necessarily implied. The determination of what is a reasonable amount of time depends upon attendant circumstances in each case.

In Bowen v The Detroit City Railway Co, 54 Mich 496, 501; 20 NW 559, 562 (1884), the Court said:

'The question of reasonable time, in the absence of controversy respecting the facts, or where they are conceded, is one of law for the court to determine, and is defined to be 'so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires, in the particular case, should be done".

In the event that a county board of commissioners neglects to make the appointments to fill vacancies on the county road commission after expiration of a reasonable period of time, an action of mandamus may be instituted to compel the board to make the appointments. Attorney General, ex rel. Greenfield, v Board of Supervisors of Alcona County, 167 Mich 666; 133 NW 825 (1911). In the case at hand I believe that seven months is an unreasonable period of time to leave a public office vacant.

Addressing your second question a board of county road commissioners is a body corporate separate and distinct from the county board of commissioners. OAG 1957-1958 No. 2945, p. 264 (May 23, 1957).

Accordingly, a board of county road commissioners may determine its own hours of work. Therefore, whether road commissioners' jobs are to be full-time or part-time is dependent upon the wishes of the members of the county road commission.

However, Const 1963, art 7, Sec. 9, provides a county board of commissioners with the following responsibility:

'Boards of supervisors (1) shall have exclusive power to fix the compensation of county officers not otherwise provided by law.'

Except where the county has established a county officers compensation commission (2) the Legislature has not provided by law for the fixing of the compensation of members of a board of county road commissioners. Therefore the county board of commissioners may determine the compensation of the members of a road commission and may decide to pay them on a per diem basis.

The Const 1963, art 7 Sec. 8 also provides:

'Boards of supervisors shall have legislative, administrative and such other powers and duties as provided by law.'

1879 PA 154, Sec. 1; MCLA 45.421; MSA 5.1101, provides as follows:

'(1) The annual salary of each salaried county officer, which is by law fixed by the county board of commissioners, shall be fixed by the board before November 1 of each year and shall not be diminished during the term for which the county officer has been elected or appointed, but may be increased by the board during the officer's term of office.

2. Notwithstanding subsection (1), for a county which has a county officers compensation commission, the compensation of each nonjudicial elected officer of the county shall be determined by that commission. A change in compensation for those officers of a county which has a county officers compensation commission shall commence at the beginning of the first odd numbered year after the determination is made by the county officers compensation commission and is not rejected.'

Accordingly, a county board of commissioners may not decrease the annual salary of a county road commissioner during the term for which the road commissioner has been elected or appointed.

It is therefore my opinion that a board of county road commissioners may determine that its members shall serve on a part-time basis. However, a county board of commissioners has authority to determine that the compensation paid to the members of the road commission be equivalent to that of part-time service, with a limitation that the county board of commissioners may not diminish the annual salary of a a road commissioner during the term for which the commissioner has been elected or appointed.

Frank J. Kelley

Attorney General

(1) Now referred to as the County Board of Commissioners pursuant to 1966 PA 261, Sec. 16 added by 1969 PA 137; MCLA 46.416; MSA 5.359(16).

(2) A county board of commissioners may establish a county officers compensation commission pursuant to 1978 PA 485; MCLA 45.471 et seq; MSA 5.360(51) et seq.