STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5973

September 3, 1981

CONSTITUTIONAL LAW:

Const 1963, art 4, Sec. 6--eligibility for membership on Commission of Legislative Apportionment

LEGISLATURE:

Commission on Legislative Apportionment--eligibility for appointment as member

Persons who are either officers or employees of a home rule city or an employee of a board of county road commissioners providing legal services as attorneys may not be appointed to the office of member of the Commission on Legislative Apportionment.

Persons who, as attorneys, render legal services for the state, a city or a board of county road commissioners pursuant to a retainer contract are not officers or employees of the state, city or board of county road commissioners, respectively, and may be appointed to the office of member of the Commission on Legislative Apportionment.

Honorable Richard H. Austin

Secretary of State

Treasury Building

Lansing, Michigan

You have requested my opinion on the following questions:

Const 1963, art 4, Sec. 6 establishes a Commission on Legislative Apportionment consisting of eight electors to be selected as provided therein. In the second paragraph of Const 1963, art 4, Sec. 6, the people have provided:

The words employed by the people in ratifying a constitution must be given their usual and ordinary meaning as commonly understood by the people. Vetter v Fowler, 167 Mich 499, 133 NW 500 (1911); Traverse City School District v Attorney General, 384 Mich 390; 185 NW2d 9 (1971). The commonly understood meaning of the term 'eligible' is qualified to be chosen. Webster's Third New International Dictionary.

A review of precedents of appellate courts in sister states reveals that comparable state constitutional provisions dealing with eligibility for public office have been construed to mean 'capable' of being elected or appointed. State, ex rel Broatch v Moores, 52 Nebr 770; 73 NW 299, 304 (1897); State, ex rel Haff v Pask, 126 Ohio 633; 186 NE 809 (1933); Samuels v Hite, 35 Cal 2d 115; 216 P2d 879 (1950). See also, People v Purdy, 154 NY 439, 442; 48 NE 821 (1897).

In State, ex rel Taylor v Sullivan, 45 Minn 309; 47 NW 802 (1891), the court noted that the word 'eligible' is derived from the Latin verb 'eligere,' meaning to choose or to select. The court, in State, ex rel Schuet v Murray, 28 Wis 96, 99 (1871), concluded that if a person was not eligible for an office, the person was disqualified from being chosen to that office.

Const 1963, art 4, Sec. 6, is a new provision. The purpose of the framers for including the second paragraph in Const 1963, art 4 is instructive. Efforts were made to strike the second paragraph of Const 1963, art 4, Sec. 6 when it was debated on first reading as Committee Proposal 79. With respect thereto, Delegate Faxon stated:

Delegate Hanna, speaking as a member of the Committee on Legislative Organization, responded:

Inasmuch as the amendment was not adopted, 2 Official Record, Constitutional Convention 1961, pp 2025, 2026, the exclusionary provisions of the second paragraph of Const 1963, art 4, Sec. 6 are retained.

It is my opinion, therefore, that persons who are either officers or employees of a home rule city or an employee of a board of county road commissioners providing legal services as attorneys may not be appointed to the office of member of the Commission on Legislative Apportionment.

Turning to your second question, the Attorney General, as the chief legal officer of this state, retains private attorneys and designates them as Special Assistant Attorneys General to perform legal services under retainer contracts with the state. Such retainer contracts must be approved by the Deartment of Civil Service. Civil Service R 16.6.

The Legislature has not created the office of Special Assistant Attorney General. In contracting with such persons for rendition of legal services, the designation of Special Assistant Attorney General is given in order to create an agency relationship, authorizing such attorney to act as the agent of the Attorney General. However, the attorney retained by the Attorney General pursuant to contract approved by the Department of Civil Service is neither an officer nor an employee of the state.

A board of county road commissioners may engage the services of a private attorney. OAG, 1945-1946, No 0-4267, p 579 (January 11, 1946).

Whether a home rule city may retain a private attorney to represent it on a contract basis depends upon the controlling charter provisions of the home rule city. Assuming the charter of a home rule city authorizes the city to retain a private attorney to render legal services, the attorney so retained would not be an officer or employee of the city.

An attorney who performs legal services for the state, a city or a board of county road commissioners pursuant to contract acts as an independent contractor and is neither a public officer nor a public employee. The state, city or board of county road commissioners would have control only over the purpose of the retention, not the manner of performance of legal services. See Utley v Taylor & Gaskin, Inc, 305 Mich 561; 9 NW2d 842 (1943); Brown v Standard Oil Co, 309 Mich 101; 14 NW2d 797 (1944).

In response to your second question, it is my opinion that persons who, as attorneys, render legal services for the state, a city or a board of county road commissioners pursuant to a retainer contract are not officers or employees of the state, city or board of county road commissioners, respectively, and may be appointed to the office of member of the Commission on Legislative Approtionment.

Frank J. Kelley

Attorney General