STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6361

May 7, 1986

SCHOOLS AND SCHOOL DISTRICTS:

Qualification of candidate for office of member of a board of education

Qualification of circulator of nominating petitions

Form of nominating petitions for office of member of a board of education

A person who is a registered elector at the time nominating petitions are circulated and who will attain the age of 18 years and be a qualified elector on the date of the election for such office, is eligible to be a candidate for the office of member of a board of education of a school district of the third class.

The nominating petition for the office of member of a board of education of a school district of the third class of a person who is a registered elector and will attain the age of 18 years and be a qualified elector on the date of the election for such office may state that the candidate is a registered elector and will be a qualified elector of the school district on the date of the election.

A registered elector may circulate his or her own nominating petitions as a candidate for the office of member of the board of education of a school district of the third class even though the circulator will not be a qualified elector until the date of the school election.

Honorable J. Michael Busch

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on three questions relating to the qualifications for the office of member of a board of education of a school district of the third class. You state that a person is a registered elector of a third class school district but is not currently a qualified elector because the person has not yet attained the age of 18. The person will be qualified, however, on the date of the school election.

Your first question is:

The School Code of 1976, MCL 380.201 et seq; MSA 15.4201 et seq, governs school districts of the third class. MCL 380.201; MSA 15.4201, provides:

MCL 380.218; MSA 15.4218, provides:

Part 4 itself does not contain any provisions addressing the necessary qualifications to be a candidate for the office of member of the board of education of a third class school district. Several sections of article 2, however, require discussion.

MCL 380.1101(1); MSA 15.41101(1), in article 2 states that '[a] school elector in a school district is eligible to election or appointment to office in that school district.' On its face, this section does not address the issue of whether an elector who will be both registered and qualified on election day, but only registered at the time the nominating petitions are circulated, will be eligible to be a candidate for the office of member of a board of education in Michigan.

The definition of 'school elector' also does not address the issue. MCL 380.6(3); MSA 15.4006(3), defines a 'school elector' to mean:

MCL 168.492; MSA 6.1492, does address the issue in part. MCL 168.492; MSA 6.1492, states:

Under this section, a person who will have the qualifications of an elector at the next ensuing election would clearly be entitled to register as an elector in the township, ward, or precinct in which he or she resides. This section is silent, however, on whether a person who will have the qualifications of an elector at the next ensuing election is entitled to be a candidate for the office of member of a board of education.

Part 13, MCL 380.1066(4); MSA 15.41066(4), in pertinent part states:

Although this section does not directly address the issue of the qualifications necessary to be a candidate for the board of a third class school district, it does indicate the legislative intent that the candidate be a registered and qualified elector of the school district.

Legislative intent controls the interpretion of a statute. People v Blount, 87 Mich App 501, 505-506; 275 NW2d 21 (1978). Legislative intent is to be determined from a consideration of all of the provisions of the statute. Michigan Life Insurance Co v Commissioner of Insurance, 120 Mich App 552, 557-558; 328 NW2d 82 (1982), Iv den, 417 Mich 1077 (1983).

At the time a school elector files his or her nominating petitions for the office of member of the board of education of a school district, the school elector must file 'an affidavit as provided in section 558 of the Michigan election law, Act No. 116 of the Public Acts of 1954, being section 168.558 of the Michigan Compiled Laws.' MCL 380.1066(1); MSA 15.41066(1). The Michigan Election Law, MCL 168.558(1); MSA 6.1558(1), states:

The purpose of this section is to identify the candidate rather than to determine eligibility of the candidate to hold office. This section does not require a candidate for election to office to state that he or she is eligible for the office in the affidavit.

MCL 380.1102(1); MSA 15.41102(1), states:

Under this statute, a member-elect must file a written affidavit stating that he or she is qualified as a school elector within 5 days after the election. The cited statutory requirements for affidavits, therefore, support interpreting the legislative intent as not requiring that a person be qualified to hold office before election day.

MCL 380.1066(4); MSA 15.41066, provides that the statement 'a registered and qualified elector' be included within the required nominating petition for a candidate for the office of member of the board of education of a third class school district. MCL 380.1066(4); MSA 15.41066(4), requires, however, only substantial compliance.

MCL 380.1066(9); MSA 15.41066(9), requires the secretary of the board to determine 'upon the filing of nominating petitions,' whether 'the nominating petitions of a candidate do not comply with the requirements [of law], including the fact that the candidate does not possess the qualifications as required by law for membership on the board.' This section only states the secretary of the board must determine if the candidate has the required qualifications. It does not define those qualifications.

A letter opinion addressed to Secretary of State Richard H. Austin, dated April 7, 1972, stated 'that as of a given point in time a person who is not 18 years of age may, nevertheless, at that time possess the state and federal constitutional minimum age requirement if such minimum age will have been obtained as of the next election . . ..' The letter opinion concluded that it was sufficient for a candidate for delegate to a county convention of a political party to be of 18 years of age at the date of election.

Based upon a reading of the foresaid provisions of the School Code of 1976, it may be concluded that the Legislature intended that a person be eligible for election to the office of member of the board of education of a third class school district if an elector who is only registered at the time nominating petitions are circulated because he or she has not attained the age of 18 but who will be registered and qualified on election day. Such an interpretation is consistent with the letter opinion to Secretary of State Richard H. Austin, dated April 7, 1972.

It is noted that OAG, 1981-1982, No 6081, pp 666, 669 (June 11, 1982) concluded that an individual seeking to qualify for nomination and election to the Legislature must establish residency in the legislative district in which he or she seeks to qualify 'on or before . . . the last date for filing nominating petitions or filing fees for such office.' See also OAG, 1975-1976, No 4931, p 332 (March 22, 1976). The establishment of residency differs from the attainment of minimum age qualifications because the former requires 'the taking of affirmative action which has not yet occurred' by the candidate, letter opinion to Secretary of State Richard H. Austin dated April 7, 1982, while the latter requires only the 'mere passage of time.' OAG, 1961-1962, No 3588, pp 50, 55 (February 22, 1961). This distinction justifies a differing treatment of residency and minimum age qualifications.

It is my opinion, in answer to your first question, that an elector who is a registered elector at the time nominating petitions are circulated and will attain the age of 18, and be a qualified elector on the day of the election for such office, is eligible to be a candidate for the office of member of the board of education of a school district of the third class.

Your second question is:

MCL 380.1066(4); MSA 15.41066(4), requires that the petition be substantially in the form given. 2 OAG, 1956, No 2664, p 399 (July 13, 1956). The form given uses the words 'registered and qualified elector' when describing the candidate. The apparent legislative intent behind using those words is to accurately state the proposed candidate's status and to positively state that the proposed candidate has the necessary qualifications for election. The words 'a registered elector and will be a qualified elector of the school district on the date of election' accurately state the status of the proposed candidate in your question and meets the legislative intent.

It is my opinion, in answer to your second question, that an elector who is registered but not a qualified elector because he or she has not attained the age of 18 when his or her nominating petitions as a candidate for the office of member of the board of education of a third class school district are circulated, may use the wording that the person is a registered elector and will be a qualified elector of the school district on the date of election in the nominating petition.

Your third question is:

MCL 380.1066(7); MSA 15.41066(7), states that '[t]he circulator of a nominating petition shall be a registered school elector of the school district in which the petition is being circulated.' The School Code of 1976 does not place any other requirements on the circulators of nominating petitions for candidates for the office of member of the board of education of a third class school district. A letter opinion addressed to Secretary of State Richard H. Austin, dated April 26, 1972, concluded persons 17 years of age who are registered electors and will attain the age of 18 years on the date of the election, may circulate petitions for initiating legislation or constitutional amendments.

It is my opinion, in answer to your third question, that a registered elector of a school district may circulate his or her own nominating petitions as a candidate for the office of member of board of education of a third class school district, even though the candidate will not be a qualified elector until the date of the school election.

Frank J. Kelley

Attorney General