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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) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5964 August 25, 1981 CIVIL SERVICE COMMISSION: Police and Fire Civil Service Act--power of civil service commission to initate complaints, issue subpoenas and conduct investigations. Neither the civil service commission nor a member thereof may institute charges against any person holding employment as a policeman or fireman under 1935 PA 78. The civil service commission is empowered to issue subpoenas and conduct investigations as prescribed in 1935 PA 78. Charges against a policeman of fireman covered by 1935 PA 78 may be initiated by the appointing officer. Honorable Dana Wilson State Representative The Capitol Lansing, Michigan You have requested my opinion on three questions concerning the Fireman and Policemen Civil Service Act, 1935 PA 78; MCLA 38.501 et seq; MSA 5.3351 et seq: 1. Whether the fire and police civil service commission or a member thereof may institute charges against any person holding employment under 1935 PA 78. 2. Is it true this commission has subpoena power and power of investigation? 3. If the commission finds the chief of police in violation of law and assuming the commission cannot institute charges against anyone under 1935 PA 78, how can the commission's duties be enforced? Your first question is answered by OAG, 1979-1980, No 5646, p 591 (February 6, 1980), which concluded that neither the civil service commission nor a member thereof may act as the 'removing officer' by instituting charges against fire or police personnel covered by 1935 PA 78, supra. OAG, 1979-1980, No 5646, supra, noted that the bringing of charges affects the employment future of the policeman and/or fireman and recognized that a hearing on charges must comply with 'rudimentary due process.' Thus, the charged party in a civil service commission hearing prossesses due process rights to a hearing before an impartial panel or officer. A fair hearing would not be provided if civil service commissioners, as a body or individually, preferred charges against the employee and also sat in judgment on the charges brought, compelling the concusion that neither the civil service commission nor any of its members may bring charges against any person holding employment under 1935 PA 78, supra. It is my opinion, therefore, that neither the civil service commission nor a member thereof may institute charges against any person whose employment is subject to 1935 PA 78, supra. Turning to your second question, 1935 PA 78, supra, Sec. 9, provides: 'The civil srvice commission in each city, village or municipality, within the terms of this act, shall Third, Mark investigations, either sitting in a body or through a single commissioner, concerning all matters touching the enforcement and effect of the provisions of this act, and the rules and regulations prescribed thereunder, concerning the action of any examiner or subordinate of the commission, or any person in the public service in respect to the execution of this act; and, in the course, of such investigations, each commissioner shall have the power to administer oaths and affirmations, and to take testimony. 'Fourth, Have power to subpoena and require the attendance of witnesses, and the production thereby of books and papers pertinent to the investigations and inquiries hereby authorized, and to examine them and such public records as it shall require, in relation to any matter which it has the authority to investigate . . ..' (Emphasis added.) It should be noted that such powers may only be exercised as to the execution of the Act and rules and regulations prescribed thereunder and the enforcement of its provisions. In answer to your second question, it is my opinion that the civil service commission has been given subpoena and investigative powers as prescribed by 1935 PA 78, Sec. 9, supra. In your last question you inquire what person may initiate the removal of a fireman or policeman covered by 1935 PA 78, supra. The term 'removing officer' is not defined in 1935 PA 78, supra. On the other hand, the term 'appointing officer' is defined in 1935 PA 78, supra, Sec. 11(b) to mean: '[t]he mayor or principal administrative or executive officer in any city, village or municipality.' The necessity of filling vacancies in police or fire civil service positions, including the chief of police, rests on the proper judgment of the appointing officer of the municipality. 2 OAG, 1958, No. 3092, p 22 (January 22, 1958). Where the mayor, or principal administrative or executive officer appoints the chief of police while concomitantly exercising authority to supervise the several departments of local government, the mayor or principal officer of a city, village or municipality may act as a 'removing officer.' Lilienthal v City of Wyandotte, 286 Mich 604; 282 NW 837 (1938). This conclusion is further supported by language in 1935 PA 78, supra, Sec. 8 which, in pertinent part, states: 'It shall be the duty of the mayor, or principal executive officer, and heads of departments of every city, village or municipality to aid the civil service commission in all proper ways in carrying out the provisions of this act. . . .' The 'removing officer' must file charges against the fireman or policeman covered by 1935 PA 78, supra, and such person is entitled to a hearing before the civil service commission in accordance with 1935 PA 78, supra, Sec. 14. Until the civil service commission determines the matter, the employee continues on his or her employment. It is my opinion, in answer to your third question, that the appointing officer of the municipality may act as a 'removing officer' by filing charges against the employee under 1935 PA 78, supra. Frank J. Kelley Attorney General
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