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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. 6160

June 28, 1983

RETIREMENT AND PENSIONS:

Municipal Employees Retirement Act--withdrawal of community mental health program from system

A multi-county community mental health program may withdraw from membership in the Municipal Employees Retirement System by a majority vote of the qualified electors of each of the counties establishing the program.

Honorable Ralph Ostling

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on the following questions with respect to the Municipal Employees Retirement Act, 1945, PA 135; MCLA 38.601 et seq; MSA 5.4001 et seq.

'1. If Board members of a multiple county Community Mental Health Board voted by resolution to come under this Act, then can the board members elect in the same manner to withdraw from this Act?

'2. A Community Mental Health Board represents multiple counties and should a ballot vote in a general election be necessary, does the vote have to be by all counties represented by this Board or only the County of Record for a given Board?'

Northern Michigan Community Mental Health Services was established pursuant to authority granted by the Mental Health Code, 1963 PA 54, as amended: MCLA 330.1200 et seq; MSA 14.800 et seq. The community mental health program is a municipality within the meaning of 1945 PA 135, supra, Sec. 2(c). You have indicated that it elected to become a participating municipality of the Municipal Employees Retirement System (System) within the meaning of 1945 PA 135, supra, Sec. 2(d), pursuant to a 3/5 majority vote of its governing body as set forth in section 6 of 1945 PA 135, supra, which provides:

'Any municipality, either by a 3/5 majority vote of its governing body or by a majority vote of the qualified electors of such municipality, may (1) elect to come under the provisions of this Act and become a participating municipality, . . .'

Section 7 of 1945 PA 135, supra, pertains to the procedure for withdrawal of participating municipalities and contains language significantly different from that contained in section 6:

'A participating municipality may elect to withdraw from membership in the retirement system and the provisions of this act by a majority vote of the qualified electors of the municipality, which vote shall be initiated, conducted, and canvassed in the same manner as required of the vote to come under this act.'

As is apparent, the procedure for participating municipalities to withdraw from the System is markedly different from that which permits entry into the System. Withdrawal of the community mental health program from the System may be accomplished only by a favorable majority vote of the qualified electors of each of the counties establishing the program.

It is my opinion, therefore, that under the circumstances here presented, the multi-county mental health program may elect to withdraw from membership in the System only by a majority vote of the qualified electors of each of the counties establishing the program. It is my further opinion that withdrawal from the System may not be accomplished simply upon approval of the county mental health board. (1)

Your second question notes that the community mental health board in this instance represents multiple counties. You have inquired into the circumstances pursuant to which a valid vote in a general election should take place. Section 7 of 1945 PA 135, supra, speaks specifically to these circumstances and provides that withdrawal from membership in the retirement system is to be accomplished by 'a majority vote of the qualified electors of the municipality, which vote shall be initiated, conducted, and canvassed in the same manner as required of the vote to come under this act.'

It is my opinion, therefore, in answer to your second question, that a majority vote of the qualified electors of each of the counties comprising the community mental health program to withdraw from the System is required.

Frank J. Kelley

Attorney General

(1) It should be noted that pension benefits for public employees of a multi-county mental health program may be subject to the collective bargaining process. In Local 13831 International Association of Fire Fighters, AFL-CIO v City of Warren, 411 Mich 642; 311 NW2d 702 (1981), the Michigan Supreme Court concluded that seniority and promotional rights of city policemen, although subject to the provisions of 1935 PA 78; MCLA 38.501 et seq; MSA 5.3351 et seq, were, nevertheless, controlled by any lawful collective bargaining agreement reached through the collective bargaining process as authorized by Const 1963, art 4, Sec. 48 and 1965 PA 379; MCLA 423.201 et seq; MSA 17.455(1) et seq. The Michigan Supreme Court has also held in Detroit Police Officers Association v Detroit, 391 Mich 44; 214 NW2d 803 (1974), that retirement benefits for city police are subject to the collective bargaining process under 1965 PA 379, supra, despite the fact that the city pension plan was adopted by the city electors as part of the city charter.

 

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