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

COUNTY OFFICES:

EXTORTION:

OATH OF OFFICE:

MICHIGAN ELECTION LAW:

MICHIGAN PENAL CODE:

VACANCIES IN OFFICE:

 Whether a county officeholder's conviction on the charge of extortion by a public officer creates a vacancy in the office by operation of law.

A county drain commissioner's conviction on the charge of extortion by a public officer under section 214 of the Michigan Penal Code, MCL 750.214, created a vacancy in that office by operation of section 206 of the Michigan Election Law, MCL 168.206, and section 3 of chapter 15 of the Revised Statutes of 1846, MCL 201.3, because extortion constitutes "an offense involving the violation of his oath of office" within the meaning of these laws.

Opinion No. 7213

March 20, 2008

Honorable Lorence Wenke
State Representative
The Capitol
Lansing, Michigan 48909

You have asked whether the office of county drain commissioner is deemed vacated by operation of law upon the officeholder's conviction on the charge of extortion by a public officer under section 214 of the Michigan Penal Code, MCL 750.214.

A true copy of the amended judgment of sentence for the particular conviction prompting your inquiry was provided to my staff and shows that the district court judge presiding over this prosecution found the defendant Kalamazoo County Drain Commissioner guilty of violating MCL 750.214 and imposed a fine of $200 plus $265 in costs.

As your letter advises, after learning of the drain commissioner's conviction, members of the Kalamazoo County Board of Commissioners sent a letter to the Governor requesting that she remove the drain commissioner from office in accordance with section 207 of the Michigan Election Law, MCL 168.207. This provision authorizes the Governor to remove from office various county officers, including drain commissioners, for enumerated reasons including when the officer is guilty of extortion.1

Upon consulting with the Attorney General's office, the Governor declined the removal request, explaining in a reply letter that "the Department of Attorney General indicates that the office may already have been vacated due to the drain commissioner's conviction for extortion."2 The reply letter cited two statutes requiring that a public office "shall become vacant" upon the incumbent's conviction of any offense involving a "violation of his oath of office," MCL 168.206 and MCL 201.3. The letter went on to state that the Department of Attorney General indicated that the use of a public office to extort funds in violation of MCL 750.214 would be directly contrary to an oath of office to faithfully discharge the duties of that office. The reply letter then suggested, however, that the county board "may wish to seek the guidance of the county attorney regarding whether a vacancy exists," which prompted the county to seek your assistance in securing an opinion of the Attorney General to clarify this matter.

Turning to your question, the Michigan Constitution requires all public officers to take an oath to faithfully discharge the duties of their respective offices:

All officers, legislative, executive and judicial, before entering upon the duties of their respective offices, shall take and subscribe the following oath or affirmation: I do solemnly swear (or affirm) that I will support the Constitution of the United States and the constitution of this state, and that I will faithfully discharge the duties of the office of . . . according to the best of my ability. No other oath, affirmation, or any religious test shall be required as a qualification for any office or public trust. [Const 1963, art 11, � 1.]3

Section 204 of the Michigan Election Law expressly requires elected county officers, including the drain commissioner, to take and subscribe to this constitutionally prescribed oath of office:

Every person elected to an office named in section 200 of this act [county clerk, county treasurer, register of deeds, prosecuting attorney, sheriff, drain commissioner, and surveyor] before entering upon the duties of his office, shall take and subscribe to the oath as provided in section 1 of article 11 of the state constitution and, with the exception of the prosecuting attorney, shall give bond in the amount and manner prescribed by law and shall deposit said oath with the county clerk and said bond with the county treasurer. The county treasurer shall file his bond with the county clerk. [MCL 168.204.]

An officeholder's failure to faithfully discharge the duties of his office in violation of the oath he takes is addressed in two separate statutes pertinent to your question. The first, MCL 201.3, is the more broadly applicable of the two and is found in section 3 of the Revised Statutes of 1846, chapter 15, which states:

Every office shall become vacant, on the happening of any of the following events, before the expiration of the term of such office:

1. The death of the incumbent;

2. His resignation;

3. His removal from office;

4. His ceasing to be an inhabitant of this state; or, if the office be local, of the district, county, township, city, or village, for which he shall have been appointed, or within which the duties of his office are required to be discharged;

5. His conviction of any infamous crime, or of any offense involving a violation of his oath of office;

6. The decision of a competent tribunal, declaring void his appointment, or,

7. His refusal or neglect to take his oath of office, or to give, or renew any official bond, or to deposit such oath, or bond, in the manner and within the time prescribed by law. [Emphasis added.]4

The second statute, section 206 of the Michigan Election Law, MCL 168.206, specifically governs county offices and is substantially similar to MCL 201.3 in providing that the office shall be deemed vacant upon the incumbent committing an infamous crime or violating his oath of office:

The office of county clerk, county treasurer, register of deeds, prosecuting attorney, sheriff, drain commissioner, surveyor or coroner in any county in this state shall become vacant upon the happening of any of the following events: Death of the incumbent; his resignation; his removal from office for cause; his ceasing to be a resident of the county in which his office is located; his conviction of an infamous crime or an offense involving the violation of his oath of office; the decision of a competent tribunal declaring his election or appointment void; his refusal or neglect to take and subscribe to the constitutional oath of office and deposit the same in the manner and within the time prescribed by law; or his refusal or neglect to give bond in the amount and manner and within the time prescribed by law. [Emphasis added.]

Both of these statutes use the term "shall" in describing what happens when one of the specified events takes place: the office "shall" become vacant. When used in this context, the word "shall" is unambiguous and denotes a mandatory, rather than a discretionary, action. See People v Grant, 445 Mich 535, 542; 520 NW2d 123 (1994). Moreover, the cardinal rule of statutory construction is to discern and give effect to the Legislature's intent as expressed in the language of the statute. Where, as here, that language is unambiguous, the statute must be enforced as written and no further construction is required or permitted. Halloran v Bhan, 470 Mich 572, 576-578; 683 NW2d 129 (2004).

A previous version of MCL 201.3 � 1 Comp Laws 1929, section 3350 � was examined by the Michigan Supreme Court in Attorney General ex rel O'Hara v Montgomery, 275 Mich 504; 267 NW 550 (1936). This case was a quo warranto action in which the right of the incumbent county clerk to remain in office was challenged on the ground that the vacancy he was appointed to fill resulted from the improper removal of his predecessor from office based on the predecessor's felony conviction.

In ruling for the incumbent and finding that his predecessor's felony conviction resulted in the automatic vacation of his office thereby rendering removal unnecessary, the Supreme Court offered guidance that is relevant in addressing your present question. The Court stated that removal is a deprivation of office by the act of a competent superior officer acting within the scope of his authority but that, when an office is vacant, a person "could not be removed therefrom," because a person "may not be removed from an office he is not in." 275 Mich at pp 511-512. In other words, the office becomes vacant "by the conduct, action or status of the erstwhile occupant." Id. The Court explained that the purpose underlying the statute recognizes that "the security of government depends upon respect for laws and the confidence of the people in public officers." Id. Significantly, it also observed that the law does not say an officer may be removed from office or require somebody to first declare a vacancy exists; rather "[i]t establishes a legislative rule, a declaration that every office shall become vacant" upon the happening of the described event. Id., at pp 512-513.5

In light of the above authorities, the question becomes whether an officeholder convicted of the crime of extortion by a public officer has been convicted of an "infamous" crime or an "offense involving the violation of his oath of office," thereby causing his office to be vacated by operation of MCL 201.3 and MCL 168.206.

MCL 750.214 describes the crime of extortion by a public officer6 as follows:

Extortion by public officers � Any person who shall wilfully and corruptly demand and receive from another for performing any service, or any official duty, for which the fee or compensation is established by law, any greater fee or compensation than is allowed or provided for the same, and any public officer, for whom a salary is provided by law in full compensation for all services required to be performed by him, or by his clerks or deputies, who shall wilfully and corruptly demand and receive from any person any sum of money as a fee or compensation for any services required by law to be performed by him in his said office, or by his clerks or deputies, shall be guilty of a misdemeanor; but no prosecution for such offense shall be sustained unless it shall be commenced within 1 year next after the offense was committed.

Your question may be answered by first addressing whether a public officer's conviction of extortion under MCL 750.214 establishes a violation of the officeholder's oath of office. The constitutional oath requires the public officer to "faithfully discharge the duties" of his office. As stated in the statute quoted above, a person is guilty of extortion who "shall wilfully and corruptly demand and receive . . . for performing any service, or any official duty . . . any greater fee or compensation than is allowed" by law. MCL 750.214. See People v Ritholz, 359 Mich 539, 552; 103 NW2d 481 (1960) (explaining that extortion is the exaction of money, under color of official rights, from an unwilling payor).

Based on the above, the conclusion is inescapable that one who uses his or her public office to extort funds violates the officeholder's oath to "faithfully discharge the duties" of that office.7 The willful and corrupt conduct of a public officer convicted under MCL 750.214 is the antithesis of the faithful discharge of the officer's duties owed to the public. This is also the only conclusion that advances the evident purpose of MCL 168.206 and MCL 201.3 to preserve the integrity of public office.8

It is my opinion, therefore, that a county drain commissioner's conviction on the charge of extortion by a public officer under section 214 of the Michigan Penal Code, MCL 750.214, created a vacancy in that office by operation of section 206 of the Michigan Election Law, MCL 168.206, and section 3 of chapter 15 of the Revised Statutes of 1846, MCL 201.3, because extortion constitutes "an offense involving the violation of his oath of office" within the meaning of these laws.
 

MIKE COX
Attorney General

 1 This provision states in its entirety:

The governor may remove any and all county officers named in section 200 of this chapter when he shall be satisfied from sufficient evidence submitted to him, as hereinafter provided, that such officer has been guilty of official misconduct, or of wilful neglect of duty, or of extortion, or habitual drunkenness, or has been convicted of being drunk, or whenever it shall appear by a certified copy of the judgment of a court of record of this state that such officer, after his election or appointment, shall have been convicted of a felony; but the governor shall take no action upon any such charges made to him against any such officer until the same shall have been exhibited to him in writing, verified by the affidavit of the party making them, that he believes the charges to be true. But no such officer shall be removed for such misconduct or neglect until charges thereof shall have been exhibited to the governor as above provided and a copy of the same served on such officer and an opportunity given him of being heard in his defense: Provided, That the service of such charges upon the person or persons complained against shall be made by handing to such person or persons a copy of such charges, together with all affidavits or exhibits which may be attached to the original petition if such person or persons can be found; and if not, by leaving a copy at the last place of residence of such person or persons, with some person of suitable age, if such person can be found; and if not, by posting it in some conspicuous place upon his last known place of residence. No officer who has been removed in accordance with the provisions of this section shall be eligible to election or appointment to any office for a period of 3 years from the date of such removal. [MCL 168.207; emphasis added.]

2 Letter dated January 29, 2008, from Kelly Keenan, Legal Counsel to the Governor, to the Kalamazoo County Board of Commissioners.

 3 The Address to the People, which was furnished by the delegates to the Constitutional Convention to explain the purpose of the various sections, indicates that this provision presents no change from the similar provision of the 1908 Constitution, except for an improvement in phraseology. 2 Official Record, Constitutional Convention of 1961, p 3404. Similar provisions were found in the 1835 and 1850 Constitutions. See Const 1908, art 16, � 2; Const 1850, art 18, � 1; Const 1835, art 12, � 1.

4 Const 1963, art 4, � 38 states that the "Legislature may provide by law the cases in which any office shall be vacant and the manner of filling vacancies where no provision is made in this constitution."

5 See also OAG, 1983-1984, No 6233, p 331 (June 26, 1984) (concluding that a township officer convicted of an infamous crime is not subject to removal from office because the office becomes vacant upon the officer's conviction).

6 This should be distinguished from MCL 750.213, which defines the crime of "malicious threats to extort money" as a felony.

7 Having found that a county drain commissioner's conviction of the crime of extortion by a public officer constitutes an offense involving the violation of the officeholder's oath of office, it is unnecessary to determine whether it also constitutes a "conviction of an infamous crime" within the meaning of MCL 201.3 or MCL 168.206.

8 It should be noted that a public officer in actual occupancy of a public office and performing the duties of that office during a period of some irregularity or in a manner causing the incumbency to be illegal may nevertheless be regarded as a de facto officer whose actions cannot be questioned on jurisdictional grounds in a collateral action. Greyhound Corp v Public Service Comm, 360 Mich 578, 589-595, 606, 610; 104 NW2d 395 (1960) (Opinion of Carr, J. joined by Kelly, J., and concurred in by Souris, J., and by Smith, Black, and Edwards, JJ.) (holding that one in actual occupancy of an office and performing its duties under apparent claim of right to do so is not subject to having his acts challenged notwithstanding that a vacancy may exist, from a legal standpoint, which may be filled by appointment). See also OAG, 1977-1978, No 5362, p 618 (September 13, 1978).