STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6404

December 8, 1986

RECALL:

Eligibility of recalled member of board of education to be a candidate to fill another vacancy

SCHOOLS AND SCHOOL DISTRICTS:

Eligibility of recalled member of board of education to be a candidate to fill another vacancy

The Legislature has not prohibited a person who was recalled from the office of member of the board of education of a school district, but whose term has not yet expired, from being a candidate to fill a vacancy in the office of member of the board of education, provided the vacancy to be filled is not the one created by the person's recall.

Honorable Alan Cropsey

State Senator

The Capitol

Lansing, Michigan 48913

You have requested my opinion regarding whether a recalled member of a board of education of a school district may be a candidate for the office of member of the board of education in the school district in the next election for a different term of years if the term for which the recalled member was originally elected and subsequently recalled has not yet expired.

The Michigan Election Law, MCL 168.974(1); MSA 6.1974(1), provides:

The words in a statute are to be given their ordinary meaning unless the Legislature has indicated otherwise. Bingham v American Screw Products Co, 398 Mich 546, 563; 248 NW2d 537 (1976). Further, if language in a statute is plain and unambiguous, no interpretation of the statute is necessary. Dussia v Monroe County Employees Retirement System, 386 Mich 244; 191 NW2d 307 (1971). It is with these basic rules of statutory construction in mind that examination of the foregoing provision of the Michigan Election Law must be made.

The statute in question places two restrictions on an individual who is recalled from office. The first prohibition is that the individual may not be a candidate to fill the vacancy created by the individual's recall. The statute is plain and unambiguous and needs no further explication.

The second restriction on the recalled individual is that he or she may not "be appointed to fill a vacancy in an elective office in the electoral district or governmental unit from which the recall was made during the term of office from which the officer was recalled." This language also is plain and unambiguous. The individual may not be appointed to a vacancy in an elective office in the same governmental unit during the remaining term of office from which the individual was recalled.

It is true that the word "appointment," as that term is used in Const 1963, art 4, Sec. 9, has been interpreted to include both election and appointment of persons elected to the Legislature to certain offices. Richardson v Secretary of State, 381 Mich 304; 160 NW2d 883 (1968); OAG, 1967-1968, No 4573, p 24 (February 24, 1967). The result reached by these authorities, however, was based upon the language and history of Const 1963, art 4, Sec. 9, which made it clear that the terms "election" and "appointment" were used interchangeably in that constitutional provision. See, e.g., Richardson v Secretary of State, 381 Mich at 311-313. No such legislative intent is apparent in MCL 168.974(1); MSA 6.1974(1). Since the Legislature addressed both the election and the appointment to office of the recalled officer in the same governmental unit, it must be concluded that the Legislature intended to use the word "appointment" in its ordinary and commonly accepted sense.

If the Legislature were to determine that it is inappropriate to permit a recalled member of a board of education who has been recalled to be a candidate for a different school board term prior to the expiration of the original term from which the member was recalled, the Legislature may wish to consider an appropriate amendment clearly expressing such a prohibition.

It is my opinion, therefore, that the Legislature has not prohibited a person who was recalled from the office of member of the board of education of a school district, but whose term has not yet expired, from being a candidate to fill a vacancy in the office of member of the board of education, provided the vacancy to be filled is not the one created by the person's recall.

Frank J. Kelley

Attorney General