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 MIKE COX, ATTORNEY GENERAL
FIRE FIGHTERS: In the absence of a collective bargaining agreement providing otherwise, the
Police and Fire Civil Service Act, 1935 PA 78, as amended by 1986 PA 155, MCL
38.501 et seq, does not require a municipality to which that act applies,
when reducing the number of full-time fire fighters for reasons of economy, to
lay off volunteer, paid-on-call, or part-paid fire fighters with less time in
service than the full-time fire fighters being laid off; nor is the
municipality precluded by the act from doing so. As a result of amendments to 1935 PA 78 enacted by 1986 PA 155, a
municipality to which the Police and Fire Civil Service Act, MCL 38.501 et
seq, applies is required to follow that act when hiring full-time paid
members of its fire department only and not for volunteer, paid-on-call, or
part-paid fire fighters. Opinion No. 7177 June 28, 2005 Honorable Michael A. Prusi You have asked two questions concerning the authority of municipalities whose
voters have adopted the Police and Fire Civil Service Act, 1935 PA 78, MCL
38.501 et seq (Act 78), to lay off and hire fire fighters. You first ask whether a municipality subject to Act 78 may lay off full-time
fire fighters, hired under Act 78, without first laying off part-paid or
paid-on-call volunteer fire fighters, hired under Act 78 whose dates of hire are
later than the dates of hire of the full-time fire fighters. Prior to the amendment of Act 78 by 1986 PA 155, the Attorney General was
asked if Act 78 applied to all of the employees, or only those who "'devote
their whole time to fire fighting and law enforcement'" in those municipalities
that employ "'full paid' as well as 'part time' and/or 'volunteer'"
members of the police or fire department. OAG, 1981-1982, No 5950, p 302 (August
10, 1981) (emphasis in original). The opinion quoted section 7 of Act 78, which
then provided: "[N]o person shall be appointed, reinstated, promoted or discharged as a
paid member of said departments . . . by any means other than those
prescribed in this act." [OAG No 5950 at p 302.] The opinion also quoted the following language of Olson v City of Highland
Park, 345 Mich 345, 350; 76 NW2d 13 (1956), finding that Act 78 was intended
to apply to all members of a department: "The intent of the legislature to bring as far as possible without
exception all members of the department under the civil service regulations
is disclosed by the provisions of section 7 dealing with new appointments. .
. ." [Id.; emphasis in original.] Citing that and other authorities, the Attorney General opined that Act 78
applied "to all members of the police and/or fire department, regardless of
whether the member is a 'full paid,' 'part paid,' or 'volunteer' employee."
Id., at p 303. 1986 PA 155 amended section 7 to add language limiting its application to
full-time paid members of the department: [N]o person shall be appointed, reinstated, promoted, or discharged as a
full-time paid member of a department . . . except as provided in this act.
This section applies only to full-time paid members as defined in section
17. [MCL 38.507; emphasis added.] Consistent with an intent to limit Act 78 to full-time paid members, the
title to the Act was amended to declare that the Act's purpose is "to provide a
civil service system . . . for appointment, employment, and promotion of all
full-time paid members." (Emphasis added.) 1986 PA 155 added a definition of "full-time paid member" to mean "an
officer, fire fighter, or police officer who is paid regularly by the city and
devotes his or her whole time to fire fighting, law enforcement, or related
activities." MCL 38.517(g). Section 14(2) of Act 78 was amended so that the prescribed layoff procedure
would no longer apply to "paid members" but would apply to full-time paid
members of police or fire departments: If for reasons of economy it shall be deemed necessary by any
city, village, or municipality to reduce the number of full-time
paid members of any fire or police department, the municipality shall
follow the following procedure: Removals shall be accomplished by
suspending in numerical order, commencing with the last employee
appointed to the fire or police department, all recent appointees to the
fire or police department until the reductions are made. However, if
the fire or police department increases in numbers to the strength existing
before the reductions were made, the fire fighters or police officers
suspended last under this act shall be reinstated before any new
appointments to the fire or police department are made. [MCL 38.514(2);
emphasis added.] Section 14(2) requires that layoffs commence "with the last employee
appointed" and continue until all the reductions are made. Use of the word
"appointed" further clarifies the intent to limit this statutory layoff
procedure to full-time paid members. As the title indicates, the purpose of the
Act is "to provide a civil service system . . . of all full-time paid members."
Section 7 governs the appointment of those persons: Appointments to . . . all paid fire or police departments . . . shall
be made only according to qualifications and fitness . . . and no person
shall be appointed . . . as a full-time paid member of a department .
. . except as provided in this act. [MCL 38.507; emphasis added.] The word "appointment" is defined in Act 78 to mean: "selection, promotion,
appointing, or employing any person to hold any office, place, or position of
employment subject to civil service." MCL 38.517(b). Since only full-time paid
members are part of the Act 78 civil service, they are the appointed
employees whose layoffs are governed by the terms of section 14(2). Clear and unambiguous statutory language must be enforced as written.
Macomb County Prosecuting Attorney v Murphy, 464 Mich 149, 158; 627 NW2d 247
(2001). The language of section 14(2) is clear. By its terms, it applies only to
full-time paid members of a fire or police department in an Act 78 municipality.
However, to the extent any provision of Act 78 conflicts with a collective
bargaining agreement governed by the provisions of the Public Employment
Relations Act (PERA), MCL 423.201 et seq, in Local 1383, Int'l Ass'n
of Fire Fighters v City of Warren, 411 Mich 642, 662-663; 311 NW2d 702
(1981), the Supreme Court stated: Although this Court has not previously had occasion to consider the
conflicting requirements of the fire and police civil service act in
contrast with PERA, our previous decisions compel a conclusion that the
provisions of PERA control. * * * The mandatory bargaining duty of PERA and the need for uniformity,
contrasted with the permissive nature of Act 78, lead us to determine that
in enacting PERA the Legislature intended the bargaining duty to prevail
over Act 78. Also see St Clair Prosecutor v AFSCME, 425 Mich 204, 237; 388 NW2d 231
(1986), distinguishing Local 1383, in a case where no conflict was found
with the provisions of PERA. It is my opinion, therefore, in answer to your first question, that in the
absence of a collective bargaining agreement providing otherwise, the Police and
Fire Civil Service Act, 1935 PA 78, as amended by 1986 PA 155, MCL 38.501 et
seq, does not require a municipality to which that act applies, when
reducing the number of full-time fire fighters for reasons of economy, to lay
off volunteer, paid-on-call, or part-paid fire fighters with less time in
service than the full-time fire fighters being laid off; nor is the
municipality precluded by the act from doing so. You next ask whether a municipality subject to Act 78 may hire volunteer,
paid-on-call, or part-paid fire fighters, without following the hiring
procedures outlined in Act 78, without first rescinding the Act by a majority
vote of its electors. As previously explained, Act 78 does not address or govern the procedures for
retaining volunteer, paid-on-call, or part-paid fire fighters. Nor does Act 78
prevent a department in an Act 78 municipality from making use of volunteer,
paid-on-call, or part-paid fire fighters. Thus, while section 7 requires that
all appointments and promotions be made under the civil service selection
system, the final sentence of that section limits that requirement to full-time
paid members: "This section applies only to full-time paid members as defined in
section 17." It is my opinion, therefore, in answer to your second question, that as a
result of amendments to 1935 PA 78 enacted by 1986 PA 155, a municipality to
which the Police and Fire Civil Service Act, MCL 38.501 et seq, applies
is required to follow that act when hiring full-time paid members of its fire
department only and not for volunteer, paid-on-call, or part-paid fire fighters.
CIVIL SERVICE:
Application of Police and Fire
Civil Service Act to certain fire fighters
State Senator
The Capitol
Lansing, MI 48909
MIKE COX
Attorney General