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

PUBLIC OFFICERS:

MUNICIPALITIES:

REMOVAL FROM OFFICE:

HOME RULE CITY ACT:

Enforceability of charter provision declaring office vacant

A city charter provision that renders vacant an office held by an elected city officer who also becomes a candidate for another city office does not conflict with the requirements of section 5(d) of the Home Rule City Act, MCL 117.5(d), concerning the shortening of a public official's term of office. That act allows a shortened term where an officer is removed for cause. Running for a second office while serving in the first constitutes such a cause when so specified in the city charter.

Opinion No. 7186

January 27, 2006

Honorable Bruce Patterson
State Senate
The Capitol
Lansing, MI 48933

You have asked if a city charter provision may lawfully prescribe the removal of an elected city officer who becomes a candidate for another city office. Information supplied with your request expresses concern that the particular charter provision may be unenforceable because of a conflict with a provision of the Home Rule City Act (HRCA), MCL 117.1 et seq. The section in question is section 5(d) of the HRCA, MCL 117.5(d), which provides, in relevant part:

The term of a public official shall not be shortened or extended beyond the period for which the official is elected or appointed, unless he or she resigns or is removed for cause, if the office is held for a fixed term. [Emphasis added.]

The HRCA provides no detail as to what constitutes "cause" for removal under MCL 117.5(d). Under Const 1963, art 7, 22, home rule cities enjoy broad powers, subject to the laws of this State. AFSCME v Detroit, 468 Mich 388, 410-411; 662 NW2d 695 (2003). The Court in AFSCME cited Detroit v Walker, 445 Mich 682, 690; 520 NW2d 135 (1994), for the proposition that "home rule cities enjoy not only those powers specifically granted, but they may also exercise all powers not expressly denied." AFSCME, 468 Mich at 410. Accordingly, a city may determine what constitutes cause for removal, so long as it does not contravene state or federal law.

The charter provision about which you inquire provides:

The office of any elective officer of the City who files and does not withdraw petitions to become a candidate for another city office shall become vacant upon the passage of the deadline for withdrawal of said petitions. [Dearborn City Charter, section 6.2.]

A related section of the charter is captioned "Proceedings for removal of city officers." (Dearborn City Charter, section 6.14.) It provides that, when the City Council shall have reason to believe that any elective or appointive office should be declared vacant, the Council shall hold a special public hearing to investigate the matter. A majority of the members of the Council may thereafter vote to declare that office vacant based on one or more specified grounds, including absence of the officer from the city for ninety consecutive days, substantial inability to perform the functions of office due to physical or mental incapacity, conviction of certain crimes, wilful violation of the charter or ordinances of the city, and the "[f]ailure of the officer to meet any of the requirements of this charter for holding office." (Dearborn City Charter, section 6.14(a) (e).)

The express reference to removal for cause in section 5(d) of the HRCA, MCL 117.5(d), contemplates the potential for the shortening of the term of an elected city officer due to his or her removal from office. In fact, city charters in Michigan commonly list the circumstances under which an elective officer may be removed from office. On the facts presented in your request, the basis for removal would be the officer's failure to meet the charter's requirements for holding office due to the officer's attempt to run for another city elected office. Under these circumstances, there is no basis for concluding that the application of this charter provision would conflict with section 5(d) of the HRCA, MCL 117.5(d), by impermissibly shortening an elective officer's term of office.

It is my opinion, therefore, that a city charter provision that renders vacant an office held by an elected city officer who also becomes a candidate for another city office does not conflict with the requirements of section 5(d) of the Home Rule City Act, MCL 117.5(d), concerning the shortening of a public official's term of office. That act allows a shortened term where an officer is removed for cause. Running for a second office while serving in the first constitutes such a cause when so specified in the city charter.

MIKE COX
Attorney General