Opinion #6775

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. 6775

November 18, 1993

PRESIDENTIAL ELECTORS:

Eligibility of current and retired federal, state and local civil service employees and candidates for election for appointment as presidential electors.

The provisions of US Const, art II, Sec. 1, cl 2, and of MCL 168.41; MSA 6.1041, allow a federal civil service employee to be appointed a presidential elector unless the nature and duties of the employee's position are such that it constitutes an "office" of the United States.

The provisions of US Const, art II, Sec. 1, cl 2, and of MCL 168.41; MSA 6.1041, allow a retired federal civil service employee to be appointed a presidential elector.

The provisions of US Const, art II, Sec. 1, cl 2, and of MCL 168.41; MSA 6.1041, allow a current or retired state or local civil service employee to be appointed a presidential elector.

The provisions of US Const, art II, Sec. 1, cl 2, and of MCL 168.41; MSA 6.1041, allow a candidate for political office to be appointed a presidential elector unless that person holds a federal office at the time of the appointment as a presidential elector.

Honorable Richard H. Austin

Secretary of State

Treasury Building

Lansing, Michigan 48918

You have asked my opinion regarding the eligibility of certain classes of persons to serve as presidential electors in light of the prohibition contained in art II, Sec. 1, cl 2, of the United States Constitution and reiterated in the last sentence of MCL 168.41; MSA 6.1041. Your inquiry may be stated as follows:

Do the provisions of US Const, art II, Sec. 1, cl 2, and of MCL 168.41; MSA 6.1041, prohibit any of the following persons from being appointed as a presidential elector:

1. a current civil service employee of the federal government;

2. a retired federal civil service employee; or

3. a current or retired civil service employee of the state or a local unit of government;

4. a candidate for election to a political office at the same general election during which the presidential electors are to be selected by the voters?

US Const, art II, Sec. 1, cl 2, provides, in pertinent part, that:

[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Similarly, the last sentence of MCL 168.41; MSA 6.1041, provides:

No senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector, as provided in section 1 of article 2 of the United States constitution.

A study of the history of US Const, art II, Sec. 1, cl 2, reveals that the prohibitory language was proposed as an amendment on the constitutional convention floor by Mr. King and Mr. Gerry of Massachusetts on September 6, 1787, and unanimously approved, 2 Farrand, Records of the Federal Convention of 1787 (New Haven and London: Yale University Press, 1911, 1937), p 521, "to prevent Congressmen or federal officials from having a hand in the election of the President with the bribery and intrigue they feared might result." Peirce, The People's President (New York: Simon & Schuster, 1968), ch 2, p 46.

Alexander Hamilton in The Federalist, No 68 (New York Heritage Press), p 457, put it this way:

And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task, free from any sinister bias.

The only reported appellate decision construing the phrase "office of trust or profit under the United States," as that phrase is used in US Const, art II, Sec. 1, cl 2, is In Re Corliss, 11 RI 638; 23 AmRep 538 (1876). In that case, the Rhode Island Supreme Court concluded that a person serving as a Commissioner of the United States Centennial Commission occupied "an office of ... trust under the United States" within the meaning of US Const, art II, Sec. 1, cl 2, and was therefore disqualified from serving as a presidential elector. The Court carefully emphasized the distinction between an "officer," who is subject to the constitutional disqualification, and "mere employees, agents, or committee men," who are not. Id, at 641. In reaching the conclusion that the Centennial Commission constituted an office rather than a mere employment, the Court stressed, inter alia, that (1) the Commission was created by a statute of the United States; (2) the Commissioners were appointed by the President; (3) the duties and functions of the Commission were "various, delicate, and important; ... and they were not merely subordinate and provisional, but in the highest degree authoritative, discretionary, and final in their character." Id, at 640-641.

No Michigan appellate court has construed the prohibition contained in MCL 168.41; MSA 6.1041. Nor has the United States Supreme Court or any reported federal court decision passed upon the meaning of this portion of US Const, art II, Sec. 1, cl 2.

The United States Supreme Court has, however, construed the closely related term "officer of the United States" as it is used in US Const, art II, Sec. 2, cl 2, the so-called "Appointments Clause," which provides:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. [ Emphasis added.]

In Buckley v Valeo, 424 US 1, 124-126; 96 SCt 612; 46 LEd2d 659 (1976), the United States Supreme Court found that a member of the Federal Election Commission was an "officer of the United States" within the meaning of the Appointments Clause. In reaching this conclusion, the Court stated that the term "Officer of the United States" as used in this provision extends to "any appointee exercising significant authority pursuant to the laws of the United States." Id, at 126. Under this standard, the Court observed, prior cases have concluded that a postmaster first class, Myers v United States, 272 US 52; 47 SCt 21; 71 LEd 160 (1926), and the clerk of a United States district court, Ex parte Hennen, 38 US 230; 13 Pet 230; 10 LEd 138 (1839), were both "officers of the United States" subject to the Appointments Clause. Like the Rhode Island Court in Corliss, however, the Supreme Court in Buckley emphasized that the term "Officer of the United States" does not extend to all employees of the United States:

"Officers of the United States" does not include all employees of the United States.... Employees are lesser functionaries subordinate to officers of the United States, see Auffmordt v Hedden, 137 US 310, 327 [11 SCt 103;] 34 LEd 674 (1890); United States v Germaine [99 US 508; 25 LEd 482 (1879) ]....

Buckley, 424 US, at 126, n 162.

This is consistent with the great weight of authority in Michigan distinguishing between the "officers" and mere "employees." The standard in Michigan was articulated in People v Freedland, 308 Mich 449, 457-458; 14 NW2d 62 (1944), quoting from State, ex rel Barney v Hawkins, 79 Mont 506; 257 P 411; 53 ALR 583 (1927), as follows:

"[F]ive elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional."

Accord, People v Leve, 309 Mich 557, 564; 16 NW2d 72 (1944); Kent County Register of Deeds v Kent County Pension Bd, 342 Mich 548, 551-552; 70 NW2d 765 (1955); and Meiland v Wayne Probate Judge, 359 Mich 78, 87; 101 NW2d 336 (1960).

It is my opinion, therefore, in response to your first question, that the provisions of US Const, art II, Sec. 1, cl 2, and of MCL 168.41; MSA 6.1041, allow a federal civil service employee to be appointed a presidential elector unless the nature and duties of the employee's position are such that it constitutes an "office" of the United States.

Your second question asks whether retired federal civil service employees are prohibited from being appointed as presidential electors.

Persons who have retired from the federal civil service are separated from service with the United States. Any retirement annuity which may be due may not be paid until the person is separated from service. 5 USC 8345(b). Riggs v Office of Personnel Management, 709 F2d 1486 (Fed Cir, 1983). Since they are no longer officers or employees of the United States, the prohibition contained in MCL 168.41; MSA 6.1041, no longer applies.

It is my opinion, in answer to your second question, that the provisions of US Const, art II, Sec. 1, cl 2, and of MCL 168.41; MSA 6.1041, allow a retired federal civil service employee to be appointed a presidential elector.

Your third question asks whether current or retired civil service employees of state or local units of government are prohibited from being appointed as presidential electors.

The prohibitions contained in both US Const, art II, Sec. 1, cl 2, and MCL 168.41; MSA 6.1041, by their express terms, apply only to a person "holding an office of trust or profit under the United States"; neither provision purports to extend to a person holding an office under the authority of the state or its local units of government.

It is my opinion, therefore, in answer to your third question, that the provisions of US Const, art II, Sec. 1, cl 2, and of MCL 168.41; MSA 6.1041, allow a current or retired state or local civil service employee to be appointed a presidential elector.

Your final question asks whether the prohibition contained in US Const, art II, Sec. 1, cl 2, and in MCL 168.41; MSA 6.1041, extends to a person who is a candidate for election to a political office at the same general election during which the presidential electors are to be selected by the voters.

The prohibition contained in US Const, art II, Sec. 1, cl 2, and in MCL 168.41; MSA 6.1041, applies by its terms only to offices of trust or profit under the United States. Thus, a person who is a candidate for a state or local office, and who neither seeks nor holds any federal office, is not precluded from serving as a presidential elector. Furthermore, the prohibition applies only to a person actually "holding" an office under the United States. Thus, a candidate for a federal political office, including the office of United States Senator or United States Representative, would be barred from serving as a presidential elector only if that candidate is an incumbent or is serving in some other federal office at the time of the election.

It is my opinion, in answer to your final question, that the provisions of US Const, art II, Sec. 1, cl 2, and of MCL 168.41; MSA 6.1041, allow a candidate for political office to be appointed a presidential elector unless that person holds a federal office at the time of the appointment as a presidential elector.

Frank J. Kelley

Attorney General