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. 6704

October 22, 1991

ELECTIONS:

Use of public funds to pay expenses of city commissioners who are the subject of a recall petition

RECALL:

Use of public funds to pay expenses of city commissioners who are the subject of a recall petition

A municipality may not use its funds for the purpose of paying expenses incurred by city commissioners in the defense of a recall petition arising out of their performance of their duties as elected officials.

Honorable R. Robert Geake

State Senator

The Capitol

Lansing, MI 48913

You have asked my opinion on a question which may be phrased as follows:

May a municipality use its funds for the purpose of paying expenses incurred by city commissioners in the defense of a recall petition arising out of their performance of their duties as elected officials?

In the city in question, the city charter provides that elected city officials may be recalled pursuant to state law. All elected officials with the exception of judges are subject to recall pursuant to MCL 168.951; MSA 6.1951. A recall petition, however, may not be filed against an elected officer until the officer has been in office for a period of at least six months. Id.

A Letter Opinion of the Attorney General to Representative William L. Jowett, dated July 16, 1979, addressed the issue of whether a township board of trustees may pay legal fees for filing a court action that were incurred on behalf of certain township board members who were the subject of recall petitions. The opinion concluded that the township board of trustees lacked authority to pay the legal fees, stating:

[I]t is a general principle that the employment of an attorney by a municipal corporation for a particular purpose must be within the express or implied authority of the corporation. In order to bind the municipal corporation to pay for legal services, it must appear that the services were rendered with regard to a matter in which the corporation was interested. Toebe v. City of Munising, 281 Mich 1; 274 NW 688 (1937); McQuillan, Municipal Corporations, Sec. 29.14,. 3rd Ed.; 130 ALR 737.

 

 

One of the civil matters in which the township attorney may be employed to represent the township is in regard to election law....

 

 

However, it is the duty of the county clerk under Section 961 of the Election Law, MCL 168.961; MSA 6.1961 to determine whether the recall petitions are in proper form.

If the petitions, when filed and certified, do not clearly contain a statement of reasons for recall based upon the conduct of the elected officials, a court may enjoin the recall election. However, no township officer, in his or her official capacity, has any duties regarding the certification of recall petitions or outcome of a recall election.

Therefore, I am of the opinion that a township may not expend public funds to challenge the sufficiency of recall petitions involving township officers. [Emphasis added.] [Footnote omitted.]

A Letter Opinion of the Attorney General to Representative Charles M. Mueller, dated May 24, 1985, reached the same result.

In a similar vein, it is the duty of the county clerk, pursuant to MCL 168.960(1); MSA 6.1960(1), and MCL 168.961; MSA 6.1961, to determine whether recall petitions involving city commissioners are in proper form. The city clerk compares the names on the recall petitions with the city registration lists pursuant to MCL 168.961; MSA 6.1961. City commissioners, however, have no duties regarding the recall petitions or the recall election.

This office has consistently opined that state and local governmental bodies may not expend public funds to support or oppose a particular candidate or ballot proposal. OAG, 1965-1966, No 4291, p 1 (January 4, 1965); OAG, 1979-1980, No 5597, p 482 (November 28, 1979); OAG, 1987-1988, No 6423, p 33, 35 (February 24, 1987). The rationale of these opinions is that governmental bodies lack constitutional or statutory authority to expend public tax moneys to influence the outcome of an election.

In Mosier v. Wayne County Board of Auditors, 295 Mich 27; 294 NW 85 (1940), the Michigan Supreme Court addressed the question of whether the Wayne County Board of Supervisors had authority to appropriate public funds for the purpose of securing legislative reapportionment. The Court concluded that the county lacked such power, holding:

The matter of representation in the legislature does not have enough relation to the property and business of the county to require a holding that the action of the board of supervisors in the instant case was within its constitutional and statutory power. If appellees are right in their contention, then by the same token any or all of the other counties of the State might with equal propriety appropriate any sum of money considered proper from the public funds of the county to finance a counteractivity. And further, such expenditure of county funds might be contrary to the desire and even subject to the disapproval of a large portion of the county taxpayers who were firmly of the conviction that refusal to reapportion representation in Michigan in accord with constitutional mandate is decidedly detrimental to our general governmental welfare. And we think it can safely be said that it was never contemplated under the Constitution and statutes of this State that our boards of supervisors should function as propaganda bureaus. [Emphasis added.]

295 Mich at 31.

Under the same reasoning, the expenditure of city funds for the purpose of paying city commissioner expenses incurred in opposing a recall petition "might be contrary to the desire and even subject to the disapproval of a large portion of the ... taxpayers...." Mosier v. Wayne County Board of Auditors, supra, 295 Mich at 31. Clearly, a municipality lacks authority to expend money for such a purpose.

It is my opinion, therefore, that a municipality may not use its funds for the purpose of paying expenses incurred by city commissioners in the defense of a recall petition arising out of their performance of their duties as elected officials.

Frank J. Kelley

Attorney General