[ Previous Page] [ Home Page ]
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. 6444 June 9, 1987 PUBLIC OFFICES AND OFFICERS: Appointment to fill vacancy in office of city councilperson to occur in future Except where the Legislature has expressly provided otherwise, a resignation by an elected city councilperson, which by its terms is to take effect at a date in the future, will create a vacancy in that office only after the effective date of the resignation in the future and the incumbent city councilperson resigning on the future date may not vote on the appointment of his or her successor. Honorable Joseph Palamara State Representative The Capitol Lansing, Michigan 48909 You have requested my opinion concerning the legality of a procedure followed by a city council in an attempt to appoint a successor councilperson before the resignation of an incumbent councilperson became effective. Your question is based upon a factual situation where a member of a city council presented a written resignation on December 20, 1986, with an effective date of December 31, 1986, to the city council at a special meeting of the council. The city council acted unanimously to accept the resignation, specifically acknowledged the future effective date of the resignation, and declared a vacancy in the office of councilperson. The council then proceeded to vote for a successor to the incumbent resigning councilperson, with the incumbent resigning councilperson participating in the vote for his replacement. You now ask whether the council proceeded properly to make a legally effective appointment. MCL 201.3; MSA 6.693, deals with vacancies in elected and appointed offices, and states, in pertinent part: "Every office shall become vacant, on the happening of any of the following events, before the expiration of the term of such office: "2. His resignation; ...." OAG, 1985-1986, No 6405, p 429 (December 9, 1986), states: "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." A public office is vacant "when it is empty,--when it is unoccupied,--when there is no one who, of right, may exercise its functions." Attorney General v Montgomery, 275 Mich 504, 512; 267 NW2d 550 (1936). An office is not vacant as long as it is supplied with an incumbent who is legally qualified to exercise the powers and perform the duties pertaining to it. Baxter v Latimer, 116 Mich 356, 364; 74 NW 726 (1898). It has been held that if a resignation specifies the time at which it will take effect, the resignation is not complete until that time arrives. In re Peoples, 296 NC 109, 145; 250 SE2d 890, 911 (1978), cert den sub nom, Peoples v Judicial Standards Comm'n of North Carolina, 442 US 929; 99 S Ct 2859; 61 L Ed 2d 297 (1979). But an office will be held vacant even though the resignation is made effective on a later date for the purpose of determining the validity of nominating petitions filed to fill the vacancy for such office at an election. Cole v. McGillicuddy, 21 Ill App 3d 645; 316 NE2d 109 (1974). OAG, 1977-1978, No 5257, p 331 (January 24, 1978), concluded that a township board may not act to fill a vacancy to occur in the future in the office of township treasurer under virtually identical circumstances as those described in your question: "The general rule with regard to the exercise of the power of appointment to fill a vacancy has been stated in 63 Am Jur 2d, Public Officers and Employees, Sec. 127, p 707, 708. " 'It is a condition precedent to the exercise of the power to fill a vacancy in office that such vacancy in fact exist, or that it will surely occur within the time during which the appointing officer or body as then constituted will have authority to fill it....' " "The Michigan Court of Appeals in Lord v Genessee Circuit Judge, 51 Mich App 10; 214 NW2d 321 (1973) was called upon to determine the effective date of the resignation of a circuit judge. The judge submitted her resignation on May 4, 1972 to become effective on July 1, 1972. The Court concluded: " '.... For varying reasons it is entirely conceivable that the vacancy may never have materialized due to a change in circumstances before the effective date set forth as a condition of the resignation submitted by Judge Elza H. Papp. Therefore no vacancy existed until the effective date of the resignation....' " "Thus, when the board met on August 9, 1977 no vacancy in the office of township treasurer existed. Furthermore, the vacancy could not occur within the time during which the board as then constituted would have the authority to fill it since the creation of the vacancy would simultaneously alter the composition of the board." ".... "The policy of the law is that only persons authorized to fill a vacancy after the vacancy has actually been created should participate in selecting the person to fill the vacancy. Thus, in the case at hand, this would prevent the treasurer planning to resign from participating in the selection of his successor." The Michigan Election Law, MCL 168.370(2); MSA 6.1370(2), was subsequently amended by 1983 PA 226 to provide that if a township official submits a written resignation from an elected office which specifies a date and time at which the resignation is effective, the township board, within 30 days before the effective date and time, may appoint a person to fill the vacancy to be effective upon the date and time of the resignation, but the resigning official shall not vote on the appointment of the successor. There is no comparable provision in the Michigan Election Law or any other statute dealing with vacancies in city offices. It is my opinion, therefore, that except where the Legislature has expressly provided otherwise, a resignation by an elected city councilperson, which by its terms is to take effect at a date in the future, will create a vacancy in that office only after the effective date of the resignation in the future and the incumbent city councilperson resigning on the future date may not vote in the appointment of his or her successor. Frank J. Kelley Attorney General
[ Previous Page] [ Home Page ]