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

PUBLIC OFFICES AND OFFICERS:

RESIGNATION:

VACANCIES IN OFFICE:

VILLAGES:

Filling vacancy in office of village council trustee and president

Where a general law village council trustee accepts an appointment as village council president and occupies such office, an abandonment of the office of trustee has occurred whereby that office is vacated.

A village council president, upon subsequent resignation from that office, may resume his or her former office of village council trustee only by election to that office or, assuming a vacancy in that office, by appointment of the village council.


Opinion No. 6974

March 23, 1998


Honorable Allen Lowe
State Representative
The Capitol
Lansing, MI


You have asked whether a village council trustee who is selected village council president, assumes that office, and then later resigns the presidency, may resume his or her former position as village council trustee if such position has remained vacant.

You advise that a village council trustee in a general law village, while serving as president pro tempore, was selected village council president by vote of the village council, to fill a vacancy in that office. Without submitting a resignation as trustee and without taking or filing an oath of office as village council president, the person assumed the new office and proceeded to carry out the duties of village council president for several months. Subsequently, this person resigned as village council president and subsequently expressed a desire to resume the former position as village council trustee.

A general law village is established and operates pursuant to the general law villages act, 1895 PA 3, MCL 61.1 et seq; MSA 5.1201 et seq (the Act). Chapter II, sections 1-15, provides for village officers. An elected village president and six trustees shall constitute the village council. Section 1. A village officer failing to take and subscribe an oath of office within ten days following notice of election or appointment is deemed to have declined the office. Section 7. If an officer fails to take and file the oath of office within the specified time, the village council may declare the office vacant. Section 12. Resignations of officers shall be made to the village council. Section 10. Vacancies occurring in the office of president and trustee shall be filled by appointment by the village council. Section 13.

In the situation you describe, the council trustee, following selection as council president, failed to formally resign the office of trustee. The trustee, however, did commence performing the duties of council president and thereby assumed the duties of that office. The office of council trustee is, therefore, deemed vacated by abandonment. See, Attorney General ex rel Moreland v Maybury, 141 Mich 31, 36; 104 NW 324 (1905). See also, OAG, 1981-1982, No 5946, p 291, 294 (August 6, 1981), concluding that where a village president pro tempore is appointed village president, the person becomes the village president and "no longer acts as a trustee serving as president pro tempore."

A question remains whether the council president's failure to take and file an oath of office, as required by section 7 of the Act, creates a vacancy in that office. The Act specifies that upon failure of an office appointee to take and file the oath of office, the council may declare the office vacant. Section 12. (Emphasis added.) Thus, a village officer's failure to take and file the oath of office does not automatically cause a vacancy in the office; the vacancy occurs only if the village council acts to declare the office vacant. Kriseler v LeValley, 122 Mich 576, 579; 81 NW2d 580 (1900).

The result of the circumstances you describe is that there are two vacancies on the village council: the office of council president and the office of council trustee. Pursuant to section 13 of the Act, vacancies occurring in the office of council president and council trustee shall be filled by appointment by the village council.

It is my opinion, therefore, that where a general law village council trustee accepts an appointment as village council president and occupies such office, an abandonment of the office of trustee has occurred whereby that office is vacated.

It is my further opinion that a village council president, upon subsequent resignation from that office, may resume his or her former office of village council trustee only by election to that office or, assuming a vacancy in that office, by appointment of the village council.


FRANK J. KELLEY
Attorney General