Michigan Advisory Opinions March 26, 1981: AGO 5863 (March 26, 1981)

AGO 5863.

You advise me that at the recent general election in Macomb County, there was elected two county commissioners, whose terms commenced January 1, 1981, who were employees of the Macomb County Public Works Commission and the Macomb County Road Commission at the time of the election. The two commissioners, prior to assuming their office as county commissioners on January 1, 1981, each requested a leave of absence from their county employment. You inquire whether the County may grant leaves of absence to the two county commissioners upon their assumption of public office as county commissioners.

1976 PA 169; MCLA 15.401 et seq; MSA 4.1702(1) et seq, is an act to regulate political activities by certain public employees. In Council No 11, AFSCME v Civil Service Commission, 408 Mich 385; 292 NW2d 442 (1980), the Michigan Supreme Court sustained 1976 PA 169, supra, as a valid exercise of legislative authority.

An employee of a county board of public works or of a board of county road commissioners is a 'public employee' subject to 1976 PA 169, supra, Sec. 1.

1976 PA 169, supra, Sec. 3 provides, in pertinent part:

'An employee of a political subdivision of the state may:

'(c) Become a candidate for nomination and election to any . . . county . . . elective office without first obtaining a leave of absence from his employment. If the person becomes a candidate for elective office within the unit of local government . . . in which he is employed, unless contrary to a collective bargaining agreement the employer may require the person to request and take a leave of absence without pay when he complies with the candidacy filing requirements, or 60 days before any election relating to that position, whichever date is closer to the election.

'(2) However, a public employee of a unit of local government . . . who is elected to an office within that unit of local government . . . shall resign or may be granted a leave of absence from his employment during his elected term.' [Emphasis supplied.]

OAG, 1975-1976, No 5108, p 685 (November 18, 1976) concluded that a township fireman elected to the office of township trustee must resign his employment or obtain a leave of absence from his employment during his elected term as required by 1976 PA 169, supra. Further, in accordance with 1976 PA 169, supra, the opinion held that the manager of a township sewer system who was elected township treasurer must resign as manager of the township sewer system or obtain a leave of absence during his elected term.

Therefore, under 1976 PA 169, Sec. 3(2), supra, the two county commissioners in question who have requested leaves of absence may be granted a leave of absence (fn1) from such employment during their elected terms, or, in the alternative, the commissioners shall resign their county employment. If the respective board, in its discretion, declines to grant the request for a leave of absence from their employment, the two commissioners 'shall resign' their county employment. OAG, 1979-1980, No 5621, p 533 (January 9, 1980).

Therefore, it is my opinion that a county employee who is elected to the county board of commissioners within the same county shall resign from his or her employment with a county agency, or may be granted a leave of absence by the board employing him or her from such employment during the term of office.

Frank J. Kelley

Attorney General

1. The request of the employee of the county board of public works for a leave of absence would be considered and acted upon by the county board of public works, 1957 PA 185, Sec. 6; MCLA 123.736; MSA 5.570(7) and the request of the employee of the county road commission would be considered and acted upon by board of county road commissioners, 1909 PA 283, ch IV, Sec. 10; MCLA 224.10; MSA 9.910.