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. 6699

September 16, 1991

CONSTITUTIONAL LAW:

Const 1963, art 4, Sec. 8--leave of absence from public employment

LEGISLATURE:

Leave of absence from public employment

A member of the Legislature may not satisfy the requirements of Const 1963, art 4, Sec. 8, by taking a paid professional leave from employment with a state university.

Honorable Morris Hood, Jr.

State Representative

The Capitol

Lansing, MI

You have requested my opinion on the following question:

May a member of the Legislature satisfy the requirement of Const 1963, art 4, Sec. 8 by taking a paid professional leave from employment with a state university?

You have advised that a member of the Legislature who was employed at a state university prior to his election was granted a professional leave by the university for the 1990-1991 academic year with the option to renew the leave for each of three additional years. Under the terms of this leave, he received a lump-sum payment equivalent to one-half of his full salary, plus certain fringe benefits which include medical insurance coverage through the commencement of the Fall 1991 academic term and university-paid retirement contributions. The person was subsequently elected to the Legislature in November, 1990, and began serving his term of office in January, 1991.

In Const 1963, art 4, Sec. 8, the people have provided:

No person holding any office, employment or position under the United States or this state or a political subdivision thereof, except notaries public and members of the armed forces reserve, may be a member of either house of the legislature.

The Address to the People relating to Const 1963, art 4, Sec. 8, states, in pertinent part:

This is a revision of Sec 6, Article V, of the present [1908] constitution to exclude from serving as legislators officers and employees of federal, state and local units of government.

The provisions of the new section will allow people holding offices or positions to run for the legislature, but since dual office-holding is prohibited a legislator-elect would be obliged to resign his prior office or employment as a condition precedent to taking his seat. [Emphasis added.]

2 Official Record, Constitutional Convention 1961, p 3372.

Const 1963, art 4, Sec. 8, applies to "any office, employment or position under ... this state." Thus, it applies to employment with a state university established under Const 1963, art 8, Secs. 5 and 6, since these universities and their governing boards are " 'a part of the government of the State of Michigan.' " Regents of the University of Michigan v. Employment Relations Commission, 389 Mich 96, 108; 204 NW2d 218 (1973), quoting Branum v. Board of Regents of University of Michigan, 5 MichApp 134, 138-139; 145 NW2d 860 (1966). Universities are "State institution[s]." Attorney General ex rel Cook v. Burhans, 304 Mich 108, 111; 7 NW2d 370 (1942). University property is "public property, owned by the State of Michigan." Lucking v. People, 320 Mich 495, 503; 31 NW2d 707 (1948). See also Board of Control of Eastern Michigan University v. Labor Mediation Board, 384 Mich 561, 563; 184 NW2d 921 (1971). Finally, the Legislature has recognized in MCL 15.303(a); MSA 4.1700(23)(a), that members of university boards of control and university presidents are state officers.

In Attorney General, ex rel Moreland v. Common Council of City of Detroit, 112 Mich 145; 70 NW 450 (1987), the Supreme Court determined that simultaneously holding the offices of Mayor of the City of Detroit and Governor of the State of Michigan violated Const 1850, art 5, Sec. 15, which prohibited anyone holding a state office from executing the office of governor. After reaching that result, the Court considered the consequences of attempting to execute both offices as follows:

We have yet to consider the effect of the attempt to execute both offices. Mr. Pingree has taken the constitutional oath, and is in possession of the office of governor, and performing its duties. This section of the Constitution renders the two offices incompatible, as does the rule of the common law already discussed; and the general rule that the acceptance of a second vacates the first of two offices that are incompatible is not only the rule of the common law, but is held to apply to incompatibility growing out of constitutional provisions in several of the cases hereinbefore cited. See People v. Sanderson, 30 Cal. 160, 167; People v. Provines, 34 Cal. 520, 541; Foltz v. Kerlin, 105 Ind. 221 (55 Am.Rep. 197); Dailey v. State, 8 Blackf. 329; Shell v. Cousins, 77 Va. 328; also Northway v. Sheridan, 111 Mich. 18. [Emphasis added.]

Attorney General, ex rel Moreland v. Common Council of City of Detroit, 112 Mich at p 174.

OAG, 1983-1984, No 6165, p 135 (June 29, 1983), considered the question of whether an unpaid leave of absence from public school employment satisfied the requirements of Const 1963, art 4, Sec. 8, and ruled that it did not.

A leave of absence from public employment connotes a continued employee-employer relation. OAG, 1963-1964, No 4394, p 525 (December 10, 1964). Resignation from public employment is required in order to satisfy Const 1963, art 4, Sec. 8. In the event a person having public employment should thereafter become a member of the Legislature without resigning such constitutionally incompatible public position, the effect would be to vacate that public position by operation of law. See Attorney General, ex rel Moreland v. Common Council of City of Detroit, 112 Mich 145, 174; 70 NW 450 (1897).

The conclusion that a leave of absence does not satisfy the requirements of Const 1963, art 4, Sec. 8, is even clearer when the leave is paid and the member of the Legislature receives on-going benefits under the terms of the leave.

It is my opinion, therefore, that a member of the Legislature may not satisfy the requirements of Const 1963, art 4, Sec. 8, by taking a paid professional leave from employment with a state university.

Frank J. Kelley

Attorney General