Michigan Advisory Opinions July 27, 1981: AGO 5937 (July 27, 1981)

AGO 5937.

You have requested my opinion on the question whether a police officer employed by the City of Dearborn Heights may seek the office of mayor, and if elected, retain any accumulated seniority status and continue contributing to the Dearborn Heights Police Department Retirement System.

1976 PA 169; MCLA 15.401 et seq; MSA 4.1702(1) et seq, regulates political activities by certain public employees and has been sustained as valid as applied to employees in the state classified civil service by the Michigan Supreme Court in Council No. 11, AFSCME v Civil Service Commission, 408 Mich 385; 292 NW2d 442 (1980).

1976 PA 169, Sec. 1, supra, states:

'As used in this act, 'public employee' means an employee of the state classified civil service, or an employee of a political subdivision of the state who is not an elected official.' (Emphasis supplied.)

Thus, a police officer employed by the City of Dearborn Heights, a subdivision of the State of Michigan, is included within the provisions of this Act.

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

'(1) An employee of a political subdivision of the state may:

'(c) Become a candidate for nomination and election to any . . . city, . . . or other local 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 government or school district 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.)

In interpreting this section, OAG, 1981-1982, No 5863, p 79 (March 26, 1981), concluded that employees of a county elected to the office of county board of commissioners must resign or obtain a leave of absence from their employment for the term for which the employee was elected. Similarly, OAG, 1975-1976, No 5108, p 685 (November 18, 1976), held that a township fireman elected as township trustee must resign his employment or obtain a leave of absence during his elected term.

Therefore, if the police officer is elected to the office of mayor, he must either resign or obtain a leave of absence from his employment with the City of Dearborn Heights Police Department. If granted the leave of absence, he would retain his seniority, if any, as a member of the department. On the other hand, if he resigns his position with the police department, he will have lost his seniority.

You have indicated in your opinion request that the retirement system for police officers in the City of Dearborn Heights is pursuant to 1937 PA 345; MCLA 38.551 et seq; MSA 5.3375(1) et seq. In 1937 PA 345, supra, Sec. 12, as amended by 1978 PA 421, the Legislature has denied the membership of the retirement system:

'(1) The membership of the retirement system created by a municipality affected by this act shall include each police officer and fire fighter employed by a municipality. A police officer or fire fighter, who is a member of the retirement system and who is transferred from the classification of a police officer within the police or fire department or who is transferred from the police or fire department of the municipality to another department of the municipality by an officer or body of the municipality authorized to make the transfer, shall continue as a member of this retirement system covering the police officers and fire fighters, and shall be subject to the provisions of the retirement system. . . .'

(Emphasis supplied.)

When a statute is plain and unambiguous, rules of statutory construction need not be utilized in order to ascertain its meaning. Nordman v Calhoun, 339 Mich 460, 465-466; 51 NW2d 906, 909 (1952); Jones v Grand Ledge Public Schools, 349 Mich 1, 9-10; 84 NW2d 327, 331-332 (1957).

Clearly, 1937 PA 245, Sec. 12, as amended, supra, requires a member of the retirement system to be a police officer employed by the municipality or one who has been transferred to another position within the municipality by an officer of the municipality authorized to do so.

Since the police officer, if elected to the office of mayor, will be required to obtain a leave of absence or resign from his position with the police department as discussed above, he will no longer be employed as a police officer with the municipality and will not longer be eligible to be a member of the retirement system.

It would be inappropriate to undertake to apply provisions of any collective agreement between the city and the public employees which may impact this matter.

It is my opinion, therefore, that if a police officer is elected to the office of mayor in the municipality by which he is employed, he will no longer be a member of the police retirement system established pursuant to 1937 PA 345, supra, and will lose his seniority benefits if he resigns from his position. However, if a leave of absence is obtained by the police officer prior to or upon his election to the office of mayor, he will not have lost his seniority.

Frank J. Kelley

Attorney General