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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. 6299 June 12, 1985 LOCAL OFFICERS COMPENSATION COMMISSION: Meetings of commission A local officers compensation commission must hold its meeting in the odd numbered year rather than in the even numbered year. A local officers compensation commission which fails to hold meetings in the odd numbered year may not hold a belated meeting in the ensuing even numbered year. Honorable Lad S. Stacey State Representative The Capitol Lansing, MI 48909 You have requested my opinion upon two questions regarding meetings of a city local compensation commission. Your first question may be stated as follows: Does the Home Rule Cities Act, as amended; MCL 117.5c(c); MSA 5.2084(3)(c), require a local compensation commission to meet in an odd numbered year, as opposed to an even numbered year? A home rule city 'may establish,' by ordinance, a local officers compensation commission. MCL 117.5c; MSA 5.2084(3). As required by subsection (3) thereof, the ordinance shall contain the following provision: '(c) The commission shall meet for not more than 15 session days in each odd numbered year and shall make its determination within 45 calendar days after its first meeting. A majority of the members of the commission constitutes a quorum for conducting the business of the commission. The commission shall not take action or make a determination without a concurrence of a majority of the members appointed and serving on the commission. The commission shall elect a chairperson from among its members. As used in this section, 'session day' means a calendar day on which the commission meets and a quorum is present. The members of the commission shall not receive compensation, but shall be entitled to actual and necessary expenses incurred in the performance of official duties.' [Emphasis added.] OGA, 1981-1982, No 5959, p. 318, 319 (August 14, 1981), applied the primary rule of statutory construction to ascertain and give effect to the intention of the Legislature in this context as follows: 'Language employed in a statute is to be given its commonly understood meaning unless the Legislature clearly indicates otherwise. Bingham v American Screw Products, 398 Mich 546; 248 NW2d 537 (1976). In Township of Southfield v Drainage Board for Twelve Towns Relief Drains, 357 Mich 59, 76; 97 NW2d 821 (1959), the Court said: 'The use of the word 'shall' is mandatory and imperative and, when used in a command to a public official, it excludes the idea of discretion. . . .' 'See also, People v De La Mater, 213 Mich 167, 182 NW 57 (1921); Ladies of the Maccabees v Commissioner of Insurance, 235 Mich 459; 209 NW 581 (1926).' Moreover, where the Legislature uses the term 'may' in one part of the statute and the term 'shall' in another part, the use of the different language is intended to mark a distinction between what is permissive and what is mandatory. Moore v Vrooman, 32 Mich 526 (1875). The Court of Appeals in Hunt v City of Ann Arbor, 77 Mich App 304, 308; 258 NW2d 81 (1977), Iv den 402 Mich 824 (1978), discussed the purpose of MCL 117.5c; MSA 5.2084(3), in a manner consistent with this interpretation of the word 'shall.' '[I]t would appear to have as its purpose an attempt to obviate the need for a charter amendment to change salaries of elected officials. It also has the advantage of providing for uniform and periodic reassessment of the compensation of all elected officials.' [Emphasis added.] The uniform and periodic reassessment of the compensation of elected officials by a local compensation commission obviates an interpretation of the word 'shall' in MCL 117.5c(c); MSA 5.2084(3)(c), as merely directory or permissive. It is my opinion in answer to your first question that a local compensation commission created pursuant to MCL 117.5c(c); MSA 5.2084(3)(c), to reassess uniformly and periodically the compensation of all elected local officials, must hold its meetings in odd numbered, rather than even numbered, years. Your second question may be stated as follows: If a local compensation commission neglects to meet in an odd numbered year, may it meet in the ensuing even numbered year? As indicated above, MCL 117.5c; MSA 5.2084(3), expressly refers to the 'odd numbered year.' Formerly, prior to amendment by 1977 PA 204, this section provided: 'The commission shall meet for not more than 15 session days in 1972 and every odd numbered year thereafter.' This section was added to 1909 PA 279 by 1972 PA 8, and although the change was implemented in 1972, the Legislature clearly expressed its intention that subsequent meetings of such commissions shall be in the odd numbered year, excluding any suggestion that meetings be held in even numbered years. The Legislature's deliberate choice of the odd numbered year and the omission of the even numbered year excludes the latter from the legislative intention. Expressio unius est exclusio alterius: express mention in a statute of one thing implies the exclusion of other similar things. Sebewaing Industries, Inc v Village of Sebewaing, 337 Mich 530, 545; 60 NW2d 444 (1953). It is my opinion in answer to your second question that a local compensation commission which neglects to meet in the odd numbered year cannot hold a belated meeting in the even numbered year pursuant to MCL 117.5c; MSA 5.2084(3). Frank J. Kelley Attorney General
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