Michigan Advisory Opinions February 09, 1983: AGO 6124 (February 9, 1983)

AGO 6124.

You have inquired whether 1976 PA 451, the School Code of 1976; MCLA 380.1 et seq; MSA 15.4001 et seq, Sec. 1104(4), applies to filling a vacancy created by a recall. Your question concerns the recent recall of four members of the Wayne-Westland Board of Education and the terms of the members elected to fill such vacancies at the special election held December 7, 1982. Two of the recalled members were serving terms of office that expire on June 30, 1983. The other two recalled members were serving terms of office that expire on June 30, 1984. The question has been raised whether at the next annual school election in June, 1983, the two terms of office that end in June, 1984, must be filled again for the remainder of the unexpired terms, pursuant to 1976 PA 451, Sec. 1104(4), supra.

In 1976 PA 451, Sec. 1103, supra, the Legislature has specified a number of events that result in a vacancy in the office of member of a board of education. Recall is not one of the events specified therein. Although removal from office is specified in 1976 PA 451, Sec. 1103, supra, it must be noted that recall and removal are distinctly different procedures. See Noel v Oakland County Clerk, 92 Mich App 181, 189; 284 NW2d 761 (1979); compare Const 1963, art 2, Sec. 8 and Const 1963, art 7, Sec. 33.

In 1976 PA 451, Sec. 1104(4), supra, the Legislature has provided, with regard to filling such vacancies, the following:

'A person elected or appointed to fill a vacancy on the board shall file an acceptance of office and qualify under section 1102, and shall hold office until the next annual school election when the vacancy shall be filled for the remainder of the unexpired term.' (Emphasis added.)

However, as was observed in OAG, 1977-1978, No 5395, p 705, at p 708 (December 11, 1978):

'Sections 1103, 1104 and 1105 of the School Code of 1976, 1976 PA 451, MCLA 380.1 et seq; MSA 15.4001 et seq, provide for the cases in which the office of member of the board of education shall be deemed vacant and the manner of filling such vacancies. These sections do not specifically address the case of a majority of the members of a board of education being recalled.

'However, Sec. 1105 does provide that each member is subject to recall . . . in the manner prescribed in sections 951 to 976 of Act No. 116 of the Public Acts of 1954, as amended. . . .' (MCLA 168.951-168.976; MSA 6.1951-6.1976) 1954 PA 116, Sec. 970 in turn authorizes the Governor, when a majority of a board has been recalled, to appoint persons to fill the interim vacancies existing between the recall of the incumbents and the election of their successors.'

The creation of a vacancy by voter recall is not one of the events set forth in 1976 PA 451, Sec. 1103, supra. Thus, the provisions for filling vacancies set forth in 1976 PA 451, Sec. 1104, supra, are not applicable to filling vacancies that are created by recalls. Rather, pursuant to 1976 PA 451, Sec. 1105, supra, the Legislature has provided that school board members are subject to recall 'in the manner prescribed in sections 951 to 976 of Act No. 116 of the Public Acts of 1954, as amended. . . .'

The applicability of 1976 PA 451, Sec. 1105, supra, rather than section 1104, to recalls, is demonstrated by the history of these provisions. There was no provision comparable to section 1105 in 1955 PA 269, the School Code of 1955. Section 1105 is a new, specific provision enacted as part of 1976 PA 451, supra, making it clear that recall of board of education members, including the filling of vacancies created by recall, is controlled by the recall provisions of 1954 PA 116, supra. The underscored language quoted above in 1976 PA 451, Sec. 1104(4), supra, was added by 1977 PA 43. However, that addition merely reinstated language comparable to language formerly contained in 1955 PA 269, the School Code of 1955, Sec. 495, dealing with filling vacancies created by events other than recall.

Turning to 1954 PA 116, supra, Secs. 951-976, we find that section 971 provides for an election to fill the vacancies created by a recall election. Further, 1954 PA 116, supra, Sec. 975 provides that '[t]he candidate receiving the highest number of votes for the vacancy created on such recall should be considered duly elected for the remainder of the term.' Thus, it is clear that in the instant recall situation only one election is required to fill the remainder of the two terms of office that expire on June 30, 1984.

It is, my opinion, therefore, that 1976 PA 451, Sec. 1104(4), supra, does not apply to filling a vacancy created by a recall.

Frank J. Kelley

Attorney General