Michigan Advisory Opinions July 11, 2001: AGO 7085 (July 11, 2001)

AGO 7085.

You have asked whether a person who is serving as a city officer or employee may run for election to the office of city charter commissioner.

The Home Rule City Act, 1909 PA 279, MCL 117.1 et seq; MSA 5.2071 et seq, provides for the incorporation of cities and for the adoption, revision, and amendment of their charters. Section 18 of this statute addresses the selection of city charter commissions and establishes eligibility requirements for charter commissioners; it provides in part that:

No city officer or employee, whether elected or appointed, shall be eligible to a place on the commission. [Emphasis added.]

A review of the legislative history demonstrates that the Legislature included this sentence in the original statute in 1909 and, although section 18 was amended on five separate occasions, the substance of this sentence has not been altered.

Research reveals no reported Michigan case law on the question posed by your inquiry. OAG, 1943-1944, No 0-1798, p 648 (February 10, 1944), concluded that while a city planning commissioner, as a city officer, is barred from simultaneously serving on a city charter commission, if the commissioner resigned from the planning commission, that commissioner would be eligible to run as a candidate for the charter commission. However, the question whether a person could become a candidate for election to the charter commission while still serving as a member of the planning commission, then resign from the planning commission if elected to the charter commission, was neither asked nor addressed in OAG No 0-1798.

A review of cases from other jurisdictions discloses two lines of authority on the question whether the time of eligibility of certain persons to hold public office, when not otherwise specified, means the time of a person's election to the office or the time the person elected actually assumes the office. These lines of authorities are examined in Annotation: Time as of which eligibility or ineligibility to office is to be determined, 88 ALR 812, supplemented by the annotation under the same title in 143 ALR 1026.

The first line of authority described in 88 ALR at 814 as the minority view in this country holds that eligibility for public office is to be determined as of the date of one's election. Representative of this line of authority is the decision in Samuels v Hite, 35 Cal 2d 115; 216 P2d 879, 880 (1950), where the California Supreme Court concluded that where neither the state constitution nor a statute specifies the time for eligibility, the candidate must be qualified on the date of the election. Relying on Searcy v Grow, 15 Cal 117, 121 (1860), the court followed the judicially approved definition of "eligible" to mean "capable of being chosen."

The second line of authority holds that the term "eligible" refers to capacity to hold the office rather than to be elected to office. Therefore, if a person is qualified to hold the office at the beginning of the term of office, ineligibility at the time of election to office is inconsequential. Representative of this view is the decision in Slater v Varney, 136 W Va 406; 68 SE2d 757 (1951), where the West Virginia Supreme Court of Appeals concluded that eligibility for a public office is the capacity to hold the office after being elected to it so that if any disqualification is removed before assuming the office, it is immaterial. The Slater case extensively cites the cases holding the two respective views and concludes that the second line of authority represents the majority rule in this country. Id., at 769. 88 ALR at 813 makes the same statement.

The logic of the majority rule is more persuasive. Eligibility for public office should be determined with reference to conditions existing at the time of commencement of the term of office, and not with reference to conditions existing at the time of the election. This result is, of course, subject to any constitutional or statutory provision that may specify a different result.

Section 18 of the Home Rule City Act is silent concerning at what time eligibility for the office of charter commissioner should be determined. Moreover, the quoted portion of section 18 only limits eligibility for the office of charter commissioner and, except for a minimum residency requirement, does not limit who may be elected to that position.(fn1) Assuming a city officer or employee is elected to the city's charter commission and, at any time before assuming the office of city charter commissioner, removes the potential disqualification by resigning the city officer or employee position, that person would be eligible to perform the duties of charter commissioner. The statutory ineligibility never arises if the person no longer holds city office or employment at the time the person actually assumes "a place" on the city charter commission.

It is my opinion, therefore, that a person serving as a city officer or employee may run for election to the office of city charter commissioner but, if elected, must resign from the city office or employment position before assuming the office of city charter commissioner.

JENNIFER M. GRANHOLM

1.Cf. Ball v Trenton City Clerk, 1 Mich App 1, 3; 133 NW2d 218 (1965) (maximum age requirement of 70 for person to be eligible to be "elected" to judicial office, Const 1963, art 6, § 19, applied at time of election), and OAG, 1997-1998, No 6946, p 51 (July 25, 1997) ("[t]o be qualified to serve as a judge of a trial court," a person must be admitted to the practice of law for at least 5 years, Const 1963, art 6, § 19(2), applied as of the date of taking judicial office). (Emphasis added.)