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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. 6267

January 16, 1985

RETIREMENT AND PENSIONS:

Composition of membership of Public School Employees Retirement Board

GOVERNOR:

Authority to fill vacancies on Public School Employees Retirement Board

The maximum number of four teaching members may serve upon the Public School Employees Retirement Board at any one time.

The maximum number of nonteaching public school employee members on the Public School Employees Retirement Board at any one time may not exceed two.

One member of the Public School Employees Retirement Board must be either a teaching or nonteaching employee of a school district of the first class or a retirant from public school employment in such school district.

Upon the resignation of a public school classroom teaching member of the Public School Employees Retirement Board from employment as a public school classroom teacher, such person is no longer qualified to continue his or her tenure as a Board member, with the result that the office becomes vacant.

Upon the retirement of a nonteaching public school member of the Public School Employees Retirement Board from public school employment, such person is no longer qualified to continue as a member of the Board, with the result that such office becomes vacant.

The Governor is authorized to fill the vacancy in the office of member of the Public School Employees Retirement Board caused by the resignation from his or her position of classroom teacher of a public school classroom teacher member of the Board and the vacancy in the office of member of such Board caused by the retirement from public school employment of the public school nonteaching Board member.

Honorable James J. Blanchard

Governor

State of Michigan

The Capitol

Lansing, Michigan 48909

You have requested my opinion on six questions relating to the composition of the Public School Employees Retirement Board, hereafter Board. Your questions will be addressed seriatim.

Your first question is:

What is the maximum number of teaching members that the Governor may appoint to the Board?

The Public School Employees Retirement Act of 1979, MCL 38.1301 et seq; MSA 15.893(111) et seq, hereafter PSERA, creates a retirement system for the public school employees of this state.

MCL 38.1322; MSA 15.893(132), in pertinent part, provides:

'(1) The Michigan public school employees' retirement board is created in the department and shall consist of the superintendent of public instruction and 7 members appointed by the governor with the advice and consent of the senate. At least 1 of the retirement board members shall be a public school employee whose primary assignment is a classroom teacher, and at least 1 shall be a nonteaching public school employee. One of the retirement board members shall be a member or retirant of a first class school district. The number of nonteaching members of the retirement board shall not exceed the number of teaching members on the board. At least 1 retirement board member shall be a retirant, and at least 1 retirement board member shall be from the general public with experience in the insurance, actuarial, or institutional investment field and neither a public school employee nor a member of the retirement system.

'(2) The term of office of the retirement board members shall be 4 years. A vacancy of an appointed member on the retirement board shall be filled in the same manner as the original appointment for the remainder of the unexpired term. A retirement board member shall continue to hold office until a successor is appointed and has qualified, but not to exceed 4 years.'

In clear and unambiguous language, the Legislature has commanded that the Governor shall appoint 7 members with the advice and consent of the Senate to be composed of the following classes of persons:

1. at least 1 shall be a public school employee whose primary assignment is a classroom teacher;

2. at least 1 shall be a nonteaching public school employee;

3. at least 1 shall be a retirant; and

4. at least 1 shall be a member of the public, neither a public school employee nor a member of the retirement system with insurance, actuarial or institutional investment experience.

As to the remaining three members of the Board, the Legislature has limited the gubernatorial power of appointment by providing that the number of nonteaching members shall not exceed the teaching members on the Board. In addition, the Legislature has specified that one of the Board members shall be a member or retirant of a first class school district organized in accordance with MCL 380.401 et seq; MSA 15.4401 et seq.

Where the statute is plain and unambiguous on its face, the legislative mandate thereof must be obeyed. Sam v Balardo, 411 Mich 405, 417-418; 308 NW2d 142 (1981).

Assuming that a hypothetical Board were composed of the statutorily required public school classroom teacher member, public school nonteaching employee member, a retiree member and a public member with the required expertise, and the remaining three positions were vacant, the Governor would have the option of filling all the vacancies with teacher members. As long as the four classes of required members delineated above are observed, there is no restriction upon the Governor's authority to fill the remaining three positions upon the Board with teaching members.

It is my opinion, therefore, that a maximum number of four teaching members may serve upon the Public School Employees Retirement Board at any one time, provided that at least one of them is primarily a classroom teacher and the remaining members of the Board include a public school nonteaching employee, a retirant and a public member with the requisite insurance, actuarial or investment expertise.

Your second question is:

What is the maximum number of nonteaching public school employee members which may serve upon the Board at the same time?

Unlike the authority conferred by MCL 38.1322; MSA 15.893(132), upon the Governor to appoint public school employee teaching members to the Board, the Legislature has imposed an explicit restriction upon that power of appointment by prescribing that the number of nonteaching members shall not exceed the number of teaching members on the Board. Thus, assuming the composition of the hypothetical Board involved in the answer to the first question, the Governor would have had the option of appointing one additional nonteaching public school employee to the Board, provided that the two remaining vacancies on the Board were filled with teaching members so that the number of nonteaching members on the Board would total 2 and the teaching members would total 3.

It is my opinion, therefore, that the maximum number of nonteaching public school members on the Public School Employees Retirement Board at one time may not exceed two, in view of the fact that MCL 38.1322; MSA 15.893(132) mandates that the number of nonteaching members of the Board shall not exceed the number of teaching members on the Board.

Your third question is:

May a member of the Board who was employed by a first class school district upon retirement satisfy the requirement of MCL 38.1322; MSA 15.893(132), that one of the members of the Board be a member or retirant of a first class school district?

The answer to your third question is controlled by the third sentence of subsection (1) of MCL 38.1322; MSA 15.893(132). The Board at all times must have a member or retirant from a first class school district. The word 'or' is patently employed in the disjunctive since PSERA does not contemplate a retirant of the retirement system remaining as a member of the system. See, MCL 38.1305; MSA 15.893(115) for the definition of 'member' and MCL 38.1307; MSA 15.893(117), for definition of 'retirant' as used in PSERA. See also, Thayer Lumber Co v City of Muskegon, 157 Mich 424, 432; 122 NW 189 (1909).

It is my opinion, therefore, that the appointment to the Public School Employees Retirement Board of a retirant (or a teaching or nonteaching employee) of a first class school district would meet the requirements of MCL 38.1322; MSA 15.893(132).

Your fourth question is:

If an individual who is a public school employee whose primary assignment is a classroom teacher is appointed, and later if this individual resigns, then may that individual continue to represent the interests of active teachers on the retirement board?

While MCL 38.1322; MSA 15.893(132), is clear relative to the permissible number of public school teacher members and public school nonteacher members who may serve upon the Board at the same time, it is unclear as to the continuing status of a public school classroom teacher member of the Board upon his or her resignation as a public school teacher. Thus, it is necessary to construe MCL 38.1322; MSA 15.893(132). Klug v Auditor General, 194 Mich 41; 160 NW 589 (1916). Posselius v First Nat'l Bank-Detroit, 264 Mich 687; 251 NW 429 (1933).

Except for the public member with requisite insurance, actuarial or investment expertise, the other three classes of required members on the Board are members of the retirement system established pursuant to PSERA and a retirant from the system, respectively. Thus, the Legislature, by making such provision, must be deemed to have been aware that the teaching and nonteaching Board members were potential retirants. There is no provision in MCL 38.1322; MSA 15.893(132), authorizing such members to continue as Board members upon retirement. The omission must be concluded to have been deliberate in light of the four requisite classes of Board members, as well as the mandated ratio of teaching and nonteaching Board members.

Moreover, in delineating the qualification requisites for Board membership, namely, 'shall be' a public school classroom teacher, a nonteaching public school employee, a retirant, and a public member with expertise in the insurance, actuarial or investment field, respectively, the Legislature manifested its intent that, during the tenure of office, the Board member shall continue to be so qualified. It has been held that where a statute provides certain qualification for appointment to public office, and in so doing, employs the mandatory words 'shall be,' the natural import of the statute is that the officer shall continue to be so qualified during his or her tenure. State, ex rel Coe v Harrison, 217 Ala 80; 114 So 905 (1927); State, ex rel Fugina v Pierce, 191 Wis 1; 209 NW 693 (1926); Dorf v Skolnik, 280 Md 101; 371 A2d 1094, 1102 (1977).

It follows that upon the resignation of a public school classroom teacher appointed to the Board from that category, such person ceases to be qualified to be a member of the Board, and the office becomes vacant. Needless to say, the appointment of a successor to fill the vacancy must be made from the requisite category of public school classroom teachers.

It is my opinion, therefore, that upon the resignation of a public school classroom teacher member of the Board from public school classroom teaching employment, such person is no longer qualified to continue as a member of the Board, with the result that the office becomes vacant.

Your fifth question is:

If an individual who is a nonteaching public school employee is appointed, and if this individual retires, then may that individual continue to represent the interests of nonteaching public school employees on the Board?

The same reasoning employed in answering your fourth question is equally applicable to your fifth question.

A public school nonteaching employee appointed from that class to serve on the Board must continue to be a member of that class during his or her entire tenure. Upon assuming the status of retirant of the system established by PSERA, the retirant is no longer a public school nonteaching employee and is no longer qualified to serve upon the Board. In such circumstances, the office becomes vacant, with the result that the Governor has authority to appoint a successor from the same category to serve the balance of the unexpired term.

It is my opinion, therefore, that upon the retirement of a public school nonteaching employee of the Board, such person is no longer qualified to continue as a member of the Board, with the result that the office becomes vacant.

Your last question is:

Does the Governor have any legal or statutory obligations if a retirement board appointee changes his or her status by resigning or by retiring?

As concluded in the responses to the fourth and fifth questions, the office of member of the Board becomes vacant when a public school classroom teacher member of the Board resigns from that position and when a public school nonteaching employee member of the Board retires. When such a vacancy occurs, the Governor is authorized to fill such vacancy from the appropriate class for the balance of the unexpired term. MCL 38.1332; MSA 15.893(132); MCL 201.31; MSA 6.711.

It is my opinion, therefore, that the Governor is authorized to fill the vacancy in the office of member of the Public School Employees Retirement Board caused by the resignation from his or her position as a classroom teacher of a public school classroom teacher member of the Board and the vacancy in the office of member of the Board caused by the retirement from public school employment of the public school nonteaching member of the Board.

Frank J. Kelley

Attorney General


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