Michigan Advisory Opinions April 23, 1981: AGO 5887 (April 23, 1981)

AGO 5887.

You have requested my opinion on two questions which may be phrased as follows:

1. Does the six month requirement of 1954 PA 116, Sec. 644k for determining whether a school district will hold its election apply to a third class school district located wholly or partly within one or more cities?

2. If the answer to the first question is in the affirmative, from which election date is the six month requirement measured?

In 1954 PA 116; MCLA 168.1 et seq; MSA 6.1001 et seq, Sec. 644k, the Legislature has provided:

'(1) If all or portion of a school district or a community college district is wholly or partly within a city or more than 1 city that elects city officers at the odd year general election, the school district or community college district, except a first class school district, may hold its election biennially at the odd year general election if existing law requires or an agreement pursuant to section 533 of Act No. 269 of the Public Acts of 1955, as amended, being section 340.533 of the Michigan Compiled Laws, authorizes each city to conduct the school or community college election at the same time as and in conjunction with the city election.

'(2) The board of education of a school district or the board of trustees of a community college district may determine by resolution whether the district shall hold its election as provided in this section. The resolution shall be adopted before May 1, 1971, if it is to be applicable to the 1971 odd year general election, otherwise it shall be adopted not less than 6 months preceding the date of any regularly scheduled school or community college district election. . . .' (Emphasis added.)

In 1976 PA 451, the School Code of 1976, MCLA 380.1 et seq; MSA 15.4001 et seq, Sec. 211, the Legislature has expressly authorized a board of education of a third class school district to direct, by resolution, that its election be held at the same time that the city election is held, rather than at the June election date set forth in the School Code of 1976, supra, Sec. 216. (fn1) OAG, 1973-1974, No 4784, p 58 (July 11, 1973). However, the School Code of 1976, supra, Sec. 211 does not contain a six month requirement concerning when the third class board of education must pass such a resolution.

In the School Code of 1976, supra, Sec. 218, the Legislature has provided that third class school districts are registration districts whose elections shall be governed by the School Code of 1976, supra, Part 13, Sec. 1051 et seq.

The School Code of 1976, Part 13, Sec. 1071, supra, in pertinent part, provides:

'Act No. 116 of the Public Acts of 1954, as amended, being sections 168.1 to 168.992 of the Michigan Compiled Laws, so far as it is applicable and not inconsistent with provisions of this act relating to elections, including the voting of absent voters, the hours for the opening and closing of the polls at elections, and the preservation of the purity of elections and the prevention of fraud and corruption, shall govern elections under this part [13].'

Thus, it is clear that the six month requirement of 1954 PA 116, supra, Sec. 644k is both applicable to and not inconsistent with the provisions of the School Code of 1976, supra, Sec. 211 concerning the decision of a board of education of a third class school district to hold its school district election at the same time that the city election is held.

It is my opinion, therefore, that a third class school district located wholly or in part within one or more cities holding its city election at the time of the odd year November general election must observe the six month requirement imposed by 1954 PA 116, Sec. 644k, supra.

Your second question is with respect to the election date from which the six month requirement is measured. The choices are either the city election date on the Tuesday succeeding the first Monday in November as set forth in 1954 PA 116, supra, Secs. 644a and 644c, or the school district election date on the second Monday in June, as provided for in the School Code of 1976, supra. Sec. 216.

In 1954 PA 116, Sec. 644k(2), supra, the language plainly directs that the resolution changing election dates must be adopted at least six months before the regularly schedules school election which, under the School Code of 1976, Sec. 216, supra, would be the second Monday in June. Further, if the Legislature had intended the six months to be measured from the November city election date, it would have continued the May 1, 1971 date that was applicable only during 1971, which was the first full year after Section 644k was added to 1954 PA 116, supra, by 1970 PA 239. Finally, this construction obviates the possibility that a board of education could wait until nominating petitions had been circulated and filed and the school board election campaign had begun before adopting a resolution to change the school district election date from June to November. See the School Code of 1976, supra, Sec. 1066.

It is my opinion, therefore, that the six month requirement for determining whether a school district shall hold its election at the same time as the city election is measured from the school district June election date contained in the School Code of 1976, Sec. 216, supra.

Frank J. Kelley

Attorney General

1. Each of the two cities that are involved in the instant opinion request hold its city election in the odd year November general election. See 1954 PA 116, supra, Sec. 644a.