Michigan Advisory Opinions March 11, 1988: AGO 6505 (March 11, 1988)

AGO 6505.

You have requested my opinion on the following question:

Is a vote of three in favor, two opposed, and one abstention of the village council sufficient to fill a vacancy in an elective village office under 1895 PA 3, MCL 61.1 et seq; MSA 5.1201 et seq?

MCL 62.13; MSA 5.1227, provides, in part:

'Any vacancy occurring in the office of president, trustee, or any other elective office shall be filled by appointment by the council, and the apppointee shall hold office until the next annual election. All vacancies in any other office shall be filled by the president, by and with the consent of the council. If by reason of removal, death, resignation, or otherwise, the membership of the council is reduced to less than the quorum of 4, the remaining members of the council shall call a special election for the purpose of filling all vacancies in the office of trustee, if a petition signed by not less than 10% of the qualified voters of the village is filed with the village clerk within 10 days after the vacancy or vacancies occur. If a petition is not filed within the time stated, then the remaining members of the council may either call a special election, or may proceed to appoint a sufficient number of trustees to constitute with the members in office a quorum of the council, who shall then fill the remaining vacancies as provided in this section.'

The president and six trustees comprise a village council. MCL 62.1; MSA 5.1215.

In OAG, 1977-1978, No 5238, p 261 (November 2, 1977), it was concluded that a majority of a quorum of a township board may vote to appoint a person to fill a vacancy in the office of township supervisor. The vote of two in favor of one candidate, one for another candidate, and one abstention, was determined to be sufficient to appoint a person to the vacant township office. This opinion relied upon the general rule that a majority of a quorum may take action which is within the powers of the governmental body, and this power may not be impeded by an abstention, citing 63 ALR 3d 1072, 1082.

Under MCL 62.13; MSA 5.1227, the council is to appoint to fill vacancies for the office of the president, trustee, or other elective office. Where there are vacancies reducing the membership of the council to less than a quorum of four and the time has passed for the electors to petition for an election, the council may appoint to fill vacancies on the council to increase the number to a quorum of four so the quorum will proceed to fill the remaining vacancies.

An extraordinary vote is required only in limited circumstances. MCL 65.5(1); MSA 5.1268(1), provides, in part:

'The council shall prescribe the rules of its own proceedings, and shall keep a record of those proceedings. A majority of the members shall be a quorum for the transaction of business. A lesser number may adjourn and compel the attendance of absent members in a manner as prescribed by ordinance. An office shall not be created or abolished; a tax or assessment imposed; a street, alley, or public ground vacated; real estate or an interest in real estate purchased, leased, sold, or disposed of; or a public improvement ordered, except by a concurring vote of 2/3 of the members. The vote shall be taken by yeas and nays, and entered in the journal.'

OAG, 1912, p 435 (June 28, 1912), concluded that a council vote to fill a vacancy in a village office is not a business transaction requiring a two-thirds vote under the provisions of MCL 65.5; MSA 5.1268, and a vacancy on a village board may be filled by the council, a quorum being present, by vote of three out of five members.

A vote by five members plus one member abstaining indicates that the minimum quorum requirement set forth in MCL 62.13; MSA 5.1227, has been met. A vote of three members in favor of appointment and two members against appointment indicates that a majority voted in favor of the appointment.

It is my opinion, therefore, that a vote of three in favor, two opposed, and one abstention of a village council would be sufficient to appoint a person to fill a vacancy in an elective village office.

Frank J. Kelley

Attorney General