STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5924

June 11, 1981

CIVIL SERVICE:

Police and fire civil service act--procedures for reduction in size of fire department

The size of a municipal fire department operating subject to the provisions of 1935 PA 78 may be reduced for economy reasons only by suspending in numerical order the last person appointed to the department and all recent appointees without regard to the rank of the persons within the department.

Honorable Bill S. Huffman

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on the following question:

1935 PA 78; MCLA 38.501 et seq; MSA 5.3351 et seq, provides for a civil service system for fire and police departments of cities, villages and municipalities whose electors approve the adoption of the provisions of the Act. 1935 PA 78, supra, Sec. 17a.

The purpose of 1935 PA 78, supra, was examined by the Michigan Court of Appeals in Day v Gerds, 54 Mich App 547, 550; 221 NW2d 221, 223-224 (1974), where the Court stated:

The Legislature has made express provision for reduction of staff in a fire department in 1935 PA 78, supra, Sec. 14, which in pertinent part provides:

Consideration must also be given to 1935 PA 78, supra, Sec. 11(b), which specifies that every position, 'unless filled by reinstatement,' shall be filled under procedures enumerated therein.

Finally, in 1935 PA 78, supra, Sec. 7, the Legislature has specified that new appointments and promotions in fire departments shall be made on the basis of qualifications and fitness ascertained from competitive examination:

The intent of the Legislature expressed in 1935 PA 78, Sec. 14, supra, last paragraph, is manifest. For reasons of economy, reduction in the number of members of a fire department shall be accomplished by following a statutorily prescribed procedure suspending in numerical order commencing with the last man appointed to the fire department, all recent appointees to the fire department until the necessary reductions have been accomplished. Although the Legislature was aware of ranks in positions within the fire department, as set forth in 1935 PA 78, Sec. 14, supra, first paragraph, where it prohibited reduction in rank or pay except for cause, after written charges, public hearing if requested by the fireperson and appropriate judicial review, if any, as well as promotion in rank and position as provided for in 1935 PA 78, Sec. 7 and 11b, supra, the Legislature, in its wisdom, ordered that reduction in the number of members of a fire department be accomplished solely on a seniority basis, last in-first out, regardless of rank.

1935 PA 78, Sec. 14, supra, second paragraph, is clear and unambiguous and the manifest intent of the Legislature expressed therein may not be varied by construction. Geraldine v Miller, 322 Mich 85; 33 NW2d 672 (1948).

It should be noted that there is pending in the Michigan Supreme Court under No. 63227 an appeal from a decision of the Michigan Court of Appeals in Local 1383 of the International Association of Firefighters, AFL-CIO v City of Warren, 89 Mich 135; 279 NW2d 556 (1979), which held that a collective bargaining agreement entered into by the parties under the Public Employment Relations Act (PERA); MCLA 423.201 et seq; MSA 17.455(1) et seq, providing for the promotion of members of the fire department on a seniority basis, did not control over 1935 PA 78, Sec. 7, supra, which requires promotion of public employees to be on the basis of merit, the manner of promotion being an illegal subject for a collective bargaining agreement. The decision of the Michigan Supreme Court may impact the effect of a collective bargaining agreement, if any, providing for an alternative method of reducing the size of a fire department to the one specified in 1935 PA 78, Sec. 14, supra. Thus, no opinion is expressed herein on the question whether a collective bargaining agreement under PERA, supra, may provide for a different method of reducing the size of a fire department for reasons of economy other than the one specified in 1935 PA 78, Sec. 14, supra.

It is my opinion, therefore, that the size of a municipal fire department subject to the provisions of 1935 PA 78, supra, may be reduced for economy reasons only by suspending in numerical order the last person appointed to the department and all recent appointees without regard to the rank of the persons within the department. If such statutory provisions prove onerous or unwise, the Legislature may amend the statute as it deems appropriate.

Frank J. Kelley