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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)



Opinion No. 5719

June 12, 1980


Promotion of firemen



Regular, full-time firemen of a municipality subject to 1935 PA 78 may not be excluded from promotions if otherwise qualified.

Honorable Kerry Kammer

State Senator

The Capitol

Lansing, Michigan

Citing 1935 PA 78; MCLA 38.501 et seq; MSA 5.3351 et seq, and referring to White Lake Township in Oakland County, you indicate that the Township has a regular, full-time fire department, and that only volunteer and part-time fire officers are hired or promoted above the rank of fireman. You have requested my opinion upon the following questions:

1. In a municipality which has adopted the provisions of 1935 PA 78, and which has a full paid fire department, may appointments or promotions of officers above the rank of fireman be limited to volunteer or part-time officers, to the exclusion of firemen who are regular, full-time employees?

2. If the above question is answered in the negative, what procedures can be taken to enforce the provisions of Act 78?

1935 PA 78, supra, Sec. 1 provides:

'Within 30 days after this act shall take effect there may be created a civil service commission in each city, village or municipality of any population whatsoever having a fire and/or police department, any of the members of which are full paid by said city, village or municipality.' [Emphasis added.]

In 1935 PA 78, supra, Sec. 17, the Legislature has, in pertinent part, provided:

'The term 'appointment' includes all means of selection, promotion, appointing or employing any person to hold any office, place, or position of employment subject to civil service.

'The term 'city' includes all cities, villages and municipalities having a full paid fire and/or police department or a fire or police department having paid members. The term 'full paid fire and/or police department or fire or police department having paid members' means a fire or police department the officers, firemen and policemen employed in which are paid regularly by the city and devote their whole time to fire fighting and law enforcement.

'The term 'municipality' shall be construed to include townships, charter townships. . . .'

Consideration must also be given to 1935 PA 78, supra, Sec. 7, which provides:

'On and after the date this act takes effect, appointments to and promotions in all paid fire and/or police departments of . . . municipalities of any population whatsoever shall be made only according to qualifications and fitness to be ascertained by examinations, which shall be competitive, and no person shall be appointed, reinstated, promoted or discharged as a paid member of said department regardless of rank or position, in any fire or police department of any . . . municipality in the state of Michigan, in any manner or by any means other than those prescribed in this act.' [Emphasis added.]

The Legislature has made provision for the filling of vacancies above the rank of fireman in 1935 PA 78, supra, Sec. 12, which, in part, states:

'. . . All examinations shall be open to all applicants who have fulfilled the preliminary requirements, stated in other sections of this act. . . .

'Vacancies in positions in the fire and police department above the rank of fireman or patrolman shall be competitive and filled by promotions from among persons holding positions in the next lower rank in the departments, who have completed 2 years in such rank and at least 5 years in the department. If there are more vacancies than there are persons with 5 years in the department, the commission may lower the requirements to 3 years in the department. If no person or persons have completed 2 years in the next lower rank, the commission may hold examinations among persons in such rank as to all intent and purposes as though 2 years of service had been completed by such persons. Promotions shall be based upon merit to be ascertained by tests to be provided by the civil service commission and upon the superior qualifications of the persons promoted as shown by his previous service and experience. In the event of only 1 person in the next lower rank, person or persons in the second lower rank may compete for the vacancy, if such person or persons have completed at least 5 years in the department. Whenever a position becomes vacant for which examinations are held, the appointing power shall make requisition upon the commission for the name of the person eligible for appointment thereto. The commission shall certify the name of the person highest on the eligible list at preceding examinations held under the provisions of this act within a period of 2 years next preceding the date of such appointment for the class to which the vacant position has been allocated, who is willing to accept employment. If more than 1 vacancy is to be filled an additional name shall be certified for each additional vacancy. The appointing power shall forthwith appoint such person to such position. . . .' [Emphasis added.]

Thus, the filling of vacancies above the rank of firemen is required to be competitive and filled by promotions from among personnel in the next lower ranks. The department you describe has regularly paid full-time firemen who devote their full time to fire fighting, and from among whom promotions to positions above that rank may be made by competitive examination.

It is, therefore, my opinion that the filling of vacancies in officers' positions above the rank of fireman are required to be made in accordance with 1935 PA 78, supra, Sec. 12, and may not be limited to volunteer or part-time officers to the exclusion of regularly paid full-time firemen. Exclusion of either class, full-time firemen or eligible part-time or volunteer firemen, would be inconsistent with the provisions of 1935 PA 78, supra, Sec. 12. Your first question is, therefore, answered in the negative.

Responding to your second question, the procedures to be followed will depend upon the circumstances of a given situation. There are remedial provisions in several sections of the act which provide for hearings before the civil service commission, such as in 1935 PA 78, supra, Sec. 10:

'. . . The commission may refuse to examine an applicant, or after examination, to certify as eligible, an applicant who is found to lack any of the established preliminary requirements for the examination of position or employment for which the applicant applied; . . . If an applicant feels aggrieved by the action of the commission in refusing to examine the applicant, or after an examination, to certify the applicant as eligible, the commission shall, at the request of the applicant, appoint a time and a place for a public hearing at which time the applicant may appear, personally or with counsel, and the commission shall then review its refusal to make the examination or certification, and testimony shall be taken. The commission shall subpoena, at the expense of the applicant, any competent witnesses requested by the applicant. After review, the commission shall file the testimony taken, in its records and shall again make a decision. . . .'

1935 PA 78, Secs. 15 and 16; MCLA 38.515; MSA 5.3365, and MCLA 38.516; MSA 5.3366, describe certain violations of the act as misdemeanors and provide sanctions. Such violations may be referred to the county prosecuting attorney for prosecution. In Killingsworth v Police and Fire Department, Civil Service Commission of the City of Saginaw, 12 Mich App 340; 162 NW2d 826 (1968), the remedy was an action for declaratory judgment and mandatory injunction. In Small v Saginaw City Manager, 39 Mich App 418; 197 NW2d 850 (1972), leave denied 387 Mich 797, it was an action for mandamus, In Day v Gerds, 54 Mich App 541; 221 NW2d 243 (1974); it was an action for injunction. And in Konyha v Mount Clemens Civil Service Commission, 393 Mich 422; 224 NW2d 833 (1975), an appeal was taken for review in the circuit court.

It is my opinion, in response to your second question, that 1935 PA 78, supra, contains penalties for violation of its provisions and the statute may be enforced through appropriate civil proceedings.

Frank J. Kelley

Attorney General

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