Michigan Advisory Opinions November 18, 1980: AGO 5817 (November 18, 1980)

AGO 5817.

You have requested my opinion whether the Michigan Department of Education may prohibit its employees from running for election to the nonpartisan office of member of a local board of education.

In Council No 11, AFSCME v Civil Service Commission, 408 Mich 385; 292 NW2d 442 (1980), the Michigan Supreme Court unanimously held that Rule 7 of the Michigan Civil Service Commission, which prohibited off-duty political activity by classified employees, was invalid for the reason that the Commission lacked the authority under Const 1963, art 11, Sec. 5 to adopt such a rule.

In response to that ruling, on August 27, 1980, the Civil Service Commission adopted a new Rule 7 which states, in pertinent part, as follows:

'7.1 Candidates for Public Office.--An employee in the state civil service may become a candidate for nomination and election to any local elective office, partisan or nonpartisan, without first obtaining a leave of absence. . . .'

Consistent with the above quoted provision of Rule 7, the Department of Education no longer prohibits its employees from running for election to the nonpartisan office of local school board member.

In view of the foregoing, it is my opinion that the Michigan Department of Education may not prohibit its employees from running for election to the nonpartisan office of member of a local board of education.

However, it should also be noted that in Council No 11, AFSCME v Civil Service Commission, supra, 408 Mich 385, 407; 292 NW2d 442, 451, the Court recognized that the Civil Service Commission is empowered to deal with off-duty political activity upon a showing by the employer that such activity adversely affects job performance. Pursuant to the new Rule 7.4, running for local elective office is also subject to Rule 8.5 which precludes supplementary employment that conflicts with satisfactory job performance in the event the employee is elected.

Finally, depending upon the position held by the Department of Education employee within the Department, the principle of incompatibility of public positions may be applicable to a person holding a public position in the Michigan Department of Education who exercises supervisory authority over a public school district where the employee also serves as a member of its board of education. See 1978 PA 566; MCLA 15.181 et seq; MSA 15.1129(121) et seq, and OAG, 1979-1980, No 5626, p 537 (January 16, 1980).

Frank J. Kelley

Attorney General