[ 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. 6591

June 29, 1989

ELECTIONS:

Expenses attendant to recall of officeholder

OFFICEHOLDER'S EXPENSE FUND:

Payment of expenses relating to recall of the officeholder

Moneys in an officeholder's expense fund may not be used to pay legal and other expenses incurred in connection with the circulation and filing of recall petitions, the clarity hearing relating to the recall petition, or the recall election of the officeholder.

Honorable Richard H. Austin

Secretary of State

Michigan Department of State

Lansing, Michigan 48918

You have requested my opinion on several questions regarding the use of an officeholder's expense fund (OEF) under the campaign finance act, MCL 169.201 et seq; MSA 4.1703(1) et seq, during a possible recall election of that officeholder.

The campaign finance act authorizes an elected public official to establish an OEF to pay "expenses incidental to the person's office." MCL 169.249(1); MSA 4.1703(49)(1). The campaign finance act prohibits, however, an OEF from making "contributions and expenditures to further the nomination or election of that public official." Id.

Section 205 of the campaign finance act states that the term: " '[e]lection' includes a recall vote." MCL 169.205; MSA 4.1703(5). The term "recall vote" is not further defined. A "candidate" is defined as "an officeholder who is the subject of a recall vote." MCL 169.203(1)(d); MSA 4.1703(3)(1)(d).

Your first question is whether an OEF may be used to pay legal and other expenses incurred in connection with the officeholder's recall after the recall petitions are determined sufficient. MCL 169.205; MSA 4.1703(5), expressly includes a recall election as an "election" under the campaign finance act, and makes an officeholder who is the subject of a recall vote a "candidate." Equally plain, MCL 169.249(1); MSA 4.1703(49)(1), prohibits an officeholder from using the office-holder's OEF to make contributions or expenditures to further his or her election. The plain language of the campaign finance act, therefore, prohibits the officeholder who is the subject of a recall from using his or her OEF in opposition to the recall. It should be applied as written. See Collins v Waterford Twp School Dist, 118 Mich App 798, 804; 325 NW2d 585 (1982).

The Secretary of State in a January 3, 1984 declaratory ruling to L. Brooks Patterson ruled similarly on a different issue: "It is clear that a recall vote is an election pursuant to the Act. As a result, committees which participate in recall elections are required to meet all the registration and disclosure requirements of the Act."

It is my opinion, in answer to your first question, that the officeholder's expense fund of an officeholder who is the subject of a recall may not be used to pay legal and other expenses incurred in connection with the officeholder's recall after the recall petitions are determined sufficient.

Your second question is whether an OEF may be used to pay legal and other expenses in connection with the circulation and filing of the recall petitions. The campaign finance act does not define "recall vote" and therefore provides no clear answer to the question. On the one hand, the campaign finance act's definition of a recall vote as an election supports the argument that an OEF may not be used. On the other, no election or vote can occur until the recall petitions are determined sufficient. The definition of "candidate" also leaves the issue unresolved because an officeholder incurring expenses in opposing the circulation and filing of recall petitions may or may not be "the subject of a recall vote." It depends on whether the recall petitions are determined sufficient.

The legislative purpose of a statute may be examined to ascertain the meaning of a statute where its language is ambiguous. People v Gilbert, 414 Mich 191, 199-200; 324 NW2d 834 (1982), Crawford v School Dist No 6, 342 Mich 564, 568; 70 NW2d 789 (1955). The disclosure and recordkeeping requirements of the campaign finance act are remedial in nature and seek to inform the public as to the source of campaign money, to deter actual corruption and avoid the appearance of corruption, and to provide data to be used in the detection of violations of contribution limitations. See Advisory Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich 465, 489; 242 NW2d 3 (1976). The Legislature was concerned that there was "a crisis of confidence in elected officials among voters today, and the growing influence of 'big money' in increasingly expensive campaigns." House Legislative Analysis, SB 1570, December 17, 1976. Remedial statutes are liberally construed to effectuate their purposes. Oakland County Treasurer v Auditor General, 292 Mich 58, 64; 290 NW 327 (1940).

Corruption and the appearance of corruption may occur as easily during the gathering of signatures on a recall petition as after those signatures are gathered. As the Attorney General concluded with respect to corporate contributions for a recount:

"There are costs involved in holding a recount just as there are costs involved in seeking office. These costs may deter a person from seeking office, limit a candidate's campaign or influence a candidate who has apparently lost an election by a close margin from seeking a recount unless the candidate in all three instances receives financial assistance. Thus, a financial contribution to pay for a recount may affect the outcome of an election as much as expenditures made to finance the election campaign." OAG, 1977-1978, No 5422, p 761, 762 (December 29, 1978).

The process of gathering signatures on a recall petition and determining the sufficiency of those signatures is part of the process leading to the recall election. It is, as with recounts, often adversarial. See id at 762. The officeholder whose recall is sought has the right to challenge the validity of a signature or the registration of an elector signer on the recall petition. MCL 168.961a; MSA 4.1703(61a).

In the analogous situation of an officeholder opposing a nominating petition of a possible opponent, funds received and spent would be campaign contributions and donations of the candidate officeholder. See MCL 169.204 and 169.209; MSA 4.1703(4), and MSA 4.1703(9). The officeholder would be a candidate. MCL 169.203(1)(c); MSA 4.1703(3)(1)(c). MCL 169.249; MSA 4.1703(49), expressly prohibits the use of an OEF "to make contributions and expenditures to further the nomination ... of that public official." (Emphasis added.)

In a letter to Mr. Richard D. McLellan dated February 13, 1984, the Department of State addressed the use of an OEF with regard to a "proposed recall" and gave an administrative construction. The Department stated that "use of OEF money would be improper because the OEF may not be used in an election in which the officeholder is involved."

In light of the broad remedial purposes of the Act, it is my opinion, in answer to your second question, that the officeholder's expense fund of an officeholder who is the subject of recall petitions being circulated and filed may not be used to pay legal and other expenses in connection with the circulation and filing of recall petitions.

Your third question is whether an OEF may be used to pay legal and other expenses in connection with the clarity hearing on the proposed recall petitions under MCL 168.952; MSA 6.1952. A clarity hearing is held to "determine whether the reasons for recall stated in the petition are or are not of sufficient clarity to enable the officer whose recall is sought and the electors to identify the course of conduct which is the basis for the recall." MCL 169.952(3); MSA 4.1703(52)(3). The analysis of whether an OEF may be used to pay legal and other expenses in connection with a clarity hearing is similar to the analysis in the previous question. The analysis is complicated, however, by the fact that there was no requirement for a clarity hearing when the campaign finance act was passed.

Legislative intent will control whether an OEF may be used for expenses incurred in connection with a clarity hearing. As previously discussed, the campaign finance act is a broad remedial statute.

The clarity hearing is an integral part of the process. It may affect whether a recall election will be held and the outcome of the election if it is held. As noted in House Legislative Analysis, HB 5381, February 18, 1982:

"Veterans of recall campaigns claim that the reasons found on recall petitions justifying removing someone from office are often vague, frivolous, unsubstantiated, or plainly false. To aggravate matters, it is not uncommon for officials to be unable to discover the reasons stated on petitions being circulated in their community calling for their removal from office until the petitions are filed with the local clerk. By that time, the petitions are likely to bear the number of signatures necessary for a recall election to be ordered. This is particularly galling since, practically speaking, obtaining the required number of signatures is all that is necessary to produce a recall election. ... This means that to prevent a recall election from being held, an elected official must convince the citizenry not to sign the petitions being circulated, and this task is unnecessarily difficult when the official does not know what allegations the petitioners are making and is made more difficult in those cases where sponsors of recall petitions are misrepresenting the allegations or the nature of the petition. (This assumes that most people do not read the petitions they sign but take the petitioners' word for its contents)." (Emphasis added.)

HB 5381 was enacted as 1982 PA 456 to amend MCL 168.952; MSA 4.1703(52).

The clarity hearing may be an adversarial process. MCL 168.952(5); MSA 4.1703(52)(5) states: "Upon being notified of the reason or reasons for recall by the board of county election commissioners, the officer whose recall is sought and the sponsors of the petition may appear at the meeting and present arguments on the clarity of the reasons or reasons."

Expenses incurred at a clarity hearing are very similar to expenses incurred at a recount. See OAG, 1977-1978, No 5422, supra, at 761-762, where the Attorney General concluded that corporations cannot contribute funds to defray these expenses because they are a political "contribution" prohibited under the campaign finance act.

It is my opinion, in answer to your third question, that the officeholder's expense fund of an officeholder who is the subject of proposed recall petitions at a clarity hearing may not be used to pay legal and other expenses in connection with the clarity hearing.

Frank J. Kelley

Attorney General


[ Previous Page]  [ Home Page ]