STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5646

February 6, 1980

CIVIL SERVICE COMMISSION:

Minimum age for employment in fire and police departments

CIVIL SERVICE COMMISSION:

Authority of members of the fire and police civil service commission

Persons of the age of not less than 18 years at the date of application for employment by fire or police departments subject to 1935 PA 278 are eligible for employment by such departments.

Charges against a fireman or policeman may not be instituted by a fire or police civil service commission or any of its members.

Honorable Alfred A. Sheridan

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion on several questions which will be addressed seriatim.

1935 PA 78; MCLA 38.501 et seq; MSA 5.3351 et seq, authorizes cities to create a civil service commission with jurisdiction over fire and police personnel. 1935 PA 78, supra, Sec. 10, as amended by 1977 PA 12, sets forth, among other things, age requirements for police and fire applicants. 1935 PA 78, Sec. 10(c), supra, states:

The age of majority act of 1971, 1971 PA 79, Sec. 2; MCLA 722.52; MSA 25.2444(52) provides:

Section 3 of the age of majority act of 1971 specifies that the act supersedes all contrary provisions of law, prescribing, among other things, employment rights of persons 18 through 20 years of age. ⁽²⁾

1971 PA 79, supra, is a complete act designed to correct existing law and to redress existing grievances and, thus, is a remedial statute which should be liberally construed to implement the legislative intent. In re School District No. 6, Paris and Wyoming Township, Kent County, 284 Mich 132, 144; 278 NW 792 (1938); People v Bandy, 34 Mich App 53; 192 NW2d 115 (1971).

1935 PA 78, supra, and 1971 PA 79, supra, relate to the same class of persons (those aged 18 years through 20 years). They are in pari materia and must be construed together. Palmer v State Land Office Board, 304 Mich 628; 8 NW2d 664 (1943). Where possible, statutes in pari materia are to be reconciled so as to give full effect to the provisions of each. Valentine v Redford Township Supervisor, 371 Mich 138; 123 NW2d 227 (1963). However, where conflict exists between statutes in pari materia, the later act controls. People v Flynn, 330 Mich 130; 47 NW2d 47 (1951). 1971 PA 79, supra, is the latest expression of legislative intent, and must control. Dussia v Monroe County Employees Retirement System, 386 Mich 244; 191 NW2d 307 (1971).

It is, therefore, my opinion that the provisions of 1971 PA 79, supra, supersede the 21 year age limitation of 1935 PA 78, Sec. 10(c), supra. Thus, an applicant for a position in the fire or police department must be considered by the fire and police civil service commission if the person applying is not less than 18 years of age at the date of the application, at which age police may be sworn.

The second question may be phrased as follows:

1970 PA 201, Sec. 1; MCLA 38.521; MSA 5.3372(1), as last amended by 1978 PA 72, provides that a city, village or township which has adopted the provisions of 1935 PA 78, supra, may operate a police cadet training program. This section states:

It should be noted that this section, as it was originally enacted, provided that a person enrolled in the program could not exercise the authority of a policeman until he or she reached the age of 21, but this age requirement was excised by 1972 PA 46.

In OAG, 1977-1978, No 5186, p ___ (April 22, 1977), it was concluded that the provisions of 1970 PA 201, supra, must be read in light of the requirements of 1935 PA 78, supra, and must be interpreted in such a manner as to render the two acts consistent. Further, as both acts have a common purpose--to provide an efficient and competent police civil service--the acts are in pari materia and must be construed together. Palmer v State Land Board Office, supra.

Therefore, it is my opinion that the provisions of 1935 PA 78, supra, apply to the police cadet training program act, 1970 PA 201, supra.

In your third question, you inquire:

1935 PA 78, supra, Sec. 14, sets forth the procedure for removal or suspension of fire or police personnel by the civil service commission. Under section 14, charges may be brought by a 'removing officer' against 'every one holding an office, place, position or employment' under the act. At the hearing on such charges, the burden of proof is upon the 'removing officer to justify his action.'

Neither section 14, supra, nor any other provision of 1935 PA 78, supra, authorizes the civil service commission, or a member of the commission, to file charges or act as a 'removing officer.' Ture v Ecorse City Council, 331 Mich 380; 49 NW2d 339 (1951). The bringing of charges affects the 'important interest' of a person's employment future. Thus, the hearing must comply with 'rudimentary due process.' Sponick v Detroit Police Department, 49 Mich App 162, 188-189; 211 NW2d 674, 685 (1973). In civil service commission hearings, as in other hearings, the charged party possesses due process rights to a hearing before an impartial panel or officer. Crampton v Department of State, 395 Mich 347, 351, 353-355; 235 NW2d 352 (1975); Sponick, supra, 49 Mich App at 187-188, 211 NW2d at 685. In Royal v Ecorse Police & Fire Commission, 345 Mich 214; 75 NW2d 841 (1956), the Supreme Court upheld the decision of the trial court, which had reversed the local commission's demotion of a police chief, holding the 5-member fire and police commission did not provide a fair hearing where two out of the four participating commissioners testified against the chief and also sat in judgment on the charges brought against him. Also, in Hendricks v Sterling Heights Police and Fire Department Civil Service Commission, 85 Mich App 646; 272 NW2d 170 (1978), the Court ruled that a city manager had no standing to appeal the decision of the civil service commission which had reversed the city manager's suspension of a police officer. The Court held that it was significant that 1935 PA 78, supra, was silent regarding appeals by the city, stating:

Analogizing your question to Hendricks, it is significant that 1935 PA 78, supra, is silent on the question whether the commission, or a member of the commission, may institute charges.

Therefore, it is my conclusion that neither the civil service commission nor a member thereof is authorized under 1935 PA 78, supra, to act as the 'removing officer' by instituting of charges against fire or police personnel.

Your last question asks:

The answer to the third question being in the negative, no answer to this question is necessary.

Frank J. Kelley