STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6405

December 9, 1986

RESIGNATION:

Withdrawal of resignation of city commissioner before acceptance of resignation

The resignation of a city commissioner is not effective until it is accepted by the city commission or until the city commission acts to appoint a successor to such office.

Honorable James A. Barcia

State Senator

The Capitol

Lansing, Michigan 48913

You have requested my opinion on the question whether a resignation of a city commissioner is effective without an acceptance by an appropriate public officer or body, and the effect of a subsequent withdrawal of such resignation.

Your correspondence indicates that a city commissioner submitted a letter of resignation dated June 23, 1985, effective immediately, to the president of the city commission at a meeting of the finance and policy committee, a committee of the whole of the Bay City Commission. Dated June 26, 1986, this commissioner submitted a letter to the city clerk amending the earlier resignation letter by reciting an effective date of October 6, 1986. These two letters were placed on the agenda for the next city commission meeting to be held on July 7, 1986 as agenda items S-4 and S-5. On July 7, 1986, this commissioner submitted another letter to the city clerk withdrawing his earlier resignation letters and requesting that items S-4 and S-5 be removed from the agenda prior to the scheduled meeting. The items were removed from the agenda, the city commission did not consider the resignation further, and the city commissioner continued in office.

The Bay City Charter does not contain a provision regarding the procedure for resignations, the acceptance thereof, or withdrawals after submission, although Article IV, Sec. 2, provides for the filling of vacancies in office upon resignation, inter alia, of the mayor or city commissioners. The charter also provides at Article IV, Sec. 6:

The Bay City Commission has, however, adopted Commission Rules, Rule 18 of which provides that proceedings of the city commission shall be governed by parliamentary rules as laid down in Robert's Rules of Order, Sec. 32 of which provides in pertinent part that "the duties of a position must not be abandoned until a resignation has been accepted and becomes effective."

The common law rule in Michigan is that a public officer's resignation is not effective until it has been accepted by the proper public authority. Acceptance of the resignation may be manifested by formal declaration or by the appointment of a successor thereto. Clark v Board of Education of Detroit, 112 Mich 656; 71 NW 177 (1897); 82 ALR 753, citing Edwards v US, 103 US 471; 26 L Ed 314 (1880); OAG, 1943-1944, No 25055, p 186 (December 14, 1942); 3 McQuillin, Municipal Corporations, Sec. 12.125, p 466 (3rd Rev). This rule has been modified by statute with regard to board of education members. Compare, OAG, 1977-1978, No 5299, p 442 (May 9, 1978). No comparable statutory change in the common law has been found relating to the resignation of members of a home rule city's commission.

Upon the information provided, it appears that the city commissioner presented a resignation, to be effective immediately, at a finance and policy committee meeting, which albeit a committee of the whole, was not a meeting of the city commission itself. Prior to the city commission meeting next scheduled for July 7, 1986 at which such business could be transacted, the commissioner rescinded that resignation and substituted a resignation to become effective on October 6, 1986. Then, in turn, on July 7, 1986, both prior resignations were withdrawn. The effect was that both resignations were withdrawn prior to acceptance by the city commission and prior to any action taken to appoint a successor to such office. There being no acceptance by the city commission, neither resignation became effective.

It is my opinion, therefore, that the resignation of a city commissioner is not effective until it is accepted by the appropriate officer or body, either by formal resolution or by appointment of a successor to such office.

Frank J. Kelley

Attorney General