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Topic: The perils of filling election position vacancies

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untanglingwebs
El Supremo

After the death of Tony Ragnone, former Genesee Count Drain Commissioner, there was a number of applications to fill the vacancy. According to Michigan law ( MCL 165.209, MSA 6.1209) the appointment was to be filled by a committee formed by the Presiding judge of the Probate Court, the County Clerk and the Prosecuting Attorney. The committee in this decision was Judge Al Nelson, Clerk Mike Carr and Prosecutor Arthur Busch.

On August 29,1997 Kenneth J. Hardin was appointed o fill the vacancy in the Drain Commission office. Only the Prosecutor voted against Hardin. Hardin resigned from the Genesee County Board of Commissioners on the same date effective upon taking his taking the oath of office for his new position.

However upon the resignation of Sheriff Joe Wilson, after the special deputy badges and campaign violations scandal, there was another vacancy to fill and a new dilemma. Tim Herman, then Chairperson of the Board of Commissioners, sent Ward Chapman , then Genesee County Corporation Counsel, a request for a legal opinion on December 14, 1998.
Post Sat Nov 26, 2016 1:31 pm 
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untanglingwebs
El Supremo

Tim Herman had discussed the possibility of of his being appointed as Sheriff with Ward Chapman and questioned the use of MCLA 46.30a as a deterrent to Herman's appointment to that position. Here are the contents of the letter:

"Recently, you cited MCLA 46.30a, during our discussion of my possible appointment to the Office of Sheriff of Geneee County.

Several of my colleagues on the Board along with the media, including Jim Kiertzner of WNEM -TV5 have asked me, in my capacity as Chaiman of the Board of Commissioners, as to my position regarding MCLA 46.30a as it relates to past appointments of members of the Board of Commissioners and their eligibility to receive such appointments.
Please give me a legal opinion as to :

1) What obligation does the County have as past appointments have been Questioned as unlawful based on MCLA 46.30a.

2) What obligation does the appointing authority have as past appointments have been questioned as unlawful based on MCLA 46.30a

3) Who represents Board members when seeking appointments and who represents the appointing authority at the time of the appointment?"
Post Sat Nov 26, 2016 1:49 pm 
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untanglingwebs
El Supremo

Two days prior to this communication from Herman, former Fenton Township Trustee Nicole Phillips sent a communication to Prosecutor Arthur Busch, Judge Allan Nelson, Clerk Michel Carr, the County Commissioners, Governor Engler and numerous media sources.

In a blistering diatribe, Philips stated rather emphatically:

"It is clear that the August, 1997 appointment of Genesee County Commissioner, Ken Hardin to the position of Genesee County Drain Commissioner, did not meet the requirements of MCL 46.30a. Mr Hardin was illegally appointed to the position of at least two of the three member panel committed a misdemeanor under MCL 46.30a, which makes the appointing committee responsible,as well as the Mr. Hardin, to repay the monies he has received during this term.
There will be those who will attempt to defend that action by citing "ignorance" of that law, and who will label that law as "obscure". I say "Not So!" A review of the law and cases which refer to it, show that it was amended and rewritten , as late as 1978, which was during Mike Carr's tenure as County Clerk (elected County Commissioner in 72 and served through 1980, returning during 1994 fall elections.) Notice of such changes are regularly sent by the state agencies on a regular basis to office holders and others who may need to know, as well as their legal counsel. "
Post Sat Nov 26, 2016 2:13 pm 
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untanglingwebs
El Supremo

Phillips goes on to demand restitution of any compensation received by Hardin along with prosecution. She recites decision #24905 (Attorney General Decision?) as "A member of the County Board of Commissioners may resign and then be appointed to another office, but an appointment made before he has resigned is ineffective and he cannot therefore resign and accept such appointment." Phillips then goes on to discuss a recent Flint Journal story on "wrongdoing"and asks if there is more "wrongdoing" in Genesee County than in other units of Government.

She then accuses Hardin of not resigning as Chairman of the Board of commissioners prior to taking his oath as Drain Commissioner and states his was part of a strategy to increase his rollover agreement of his County retirement plan.
Post Sat Nov 26, 2016 2:24 pm 
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untanglingwebs
El Supremo

Ward Chapman responded to Herman in an 8 page letter.= on December 17, 1998.

"After discussing the particulars of the previous appointment of Hardin, Chapman goes on to say it "occurred to me that an argument could be made that Michigan Compiled Laws Section 46.30a, MSA 5.353(1) is applicable to such an appointment. That section provides that a member of a Board of County Commissioner shall not receive an appointment from a board, committee, or other authority of that county". I told you that an argument could be made, and then you decided not to seek the appointment to the office of Sheriff".'

Chapman goes on to say the application of the section occurred to him randomly in consideration of the appointment "Corporation Counsel had not been requested for an opinion regarding that matter, and the possibility of arguing that section 46.30a would be applicable had not been suggested to me by anyone else."
Post Sat Nov 26, 2016 2:40 pm 
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untanglingwebs
El Supremo

"It does not appear that any questions were raised as to the arguable applicability of section 46.30a was raised at the time of that appointment" wrote Chapman referencing the Hardin appointment. He then made the point that all parties acted in good faith.

Hardin was elected to the position on November 3, 1998 to serve as the Drain Commissioner for the remainder of the term and now was serving as the elected official rather than by appointment.

"Mr Hardin's official actions as Drain Commissioner, taken between the time of his appointment and the time of his election, would be upheld as valid, irrespective of whether section 46.30a was applicable to his appointment. Mr Hardin was at least a de facto Drain Commissioner during that period and his official actions would not now be subject to an attack based on the circumstances of his appointment. Greyhound Corp vs Public Service Commission, 360 Mich 378, 104 NW2d 395 (1960)
Post Sat Nov 26, 2016 2:53 pm 
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untanglingwebs
El Supremo

Chapman gives the opinion that section 46.30a may not have been applicable to the appointment of Hardin to the position of Drain Commissioner as it refers to "appointments made by a board, committee, or other authority of the county". He opines how reasonable arguments could be made that the appointing group provided for in MCL 168.209 is not a board, committee or authority of the county.

"The fact that an officer or group has the power to fill a vacancy in an office of a local unit of government does not mean that such officer or group is an officer or component body of the unit of government to which the vacancy is being appointed. If, as the result of a recall election, the governing body of a a township, city, village or other local unit of government lacks sufficient members to constitute quorum, the Governor may fill sufficient vacancies on the local governing body to supply a quorum. MCL 168.970, MSA 6.1970, it would not be argued that the Governor by possessing or exercising his power to fill a a vacancy in a local government office, is an officer of that local unit of government."
Post Sat Nov 26, 2016 3:10 pm 
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untanglingwebs
El Supremo

"Compiled Laws section 168.209 does not identify the appointing group as being either a "board", or a "committee" or an "authority". A group is required to be one of those for section 46.30a to be applicable."

Chapman goes on to state that section 168.209 does not identify the appointing group as a component of the county , another requirement that applies to 46.30a. "One of the members of the appointing group the Chief Judge of the Probate, is a State officer, Const 1963, art 6,section 1; Douvelie v Manastee Supervisors, 40 Mich 585 (1879). In the appointment of Mr Hardin, the role of this State officer was critical. The Cjief judge broke the tie between the other two members of the appointing group by voting in favor of Mr. Hardin.

According to Chapman, established Michigan decisional law there must be five "indispensable elements" present to establish an "office" of a particular unit of government, E.g. Kent County Register of deeds v Pension Board, 324 MIch 548,551,552. Chapman continues to note how one of these indispensable elements is that the position can not be temporary or occasional but must have some continuity or permanency. The argument continues that the appointing group, lacking continuity and being only occasional, is not a "board", "committee" or other authority of the county.
Post Sat Nov 26, 2016 4:07 pm 
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untanglingwebs
El Supremo

"The appointing group under discussion here is not established by any action of the Board of County Commissioners. It does not oversee or perform any operational function of the county. Sectional 46.30a is a penal statute, in that violation is a misdemeanor. Penal statutes are to be strictly construed ,that is, they are to only to situations clearly covered by their terms"

Chapman then presents the argument that section 46.30a does not apply to the appointment of Mr. Hardin.

The Board of Commissioners , Chapman reminded, had used section 46.30a in several instances in which the Board of Commissioners had made appointments. .

When Chapman addressed the letter from Phillips demanding Prosecutor Busch seek recovery of compensation from Hardin, he noted Busch was not in favor of the Hardin appointment. Thus, noted Chapman, Busch was the appropriate official to make the determination if section 46.30a was violated or if section 46.30a was even applicable to the appointment of Hardin.
Post Sat Nov 26, 2016 4:53 pm 
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untanglingwebs
El Supremo

Phillips was incorrect in her assertion that Hardin employed strategy designed to increase the amount of compensation to be transferred from the County's Defined Benefit Contribution Pension Plan to Hardin's account in the County's Defined Contribution Pension Plan.In a three party conversation, Chapman, County Board Coordinator Dan Harrell and Hardin, it was decided that Hardin would take the oath of office that day, Chapman assisted Hardin in the composition of the resignation letter dated that day also.

"The valuation date for the transfer was August 31, 1997. If Mr. Hardin had been strategizing n how to increase the amount of the transfer, he would not have proposed signing the oath of office on September 2. Signing the oath then would place that action after August 31 and would mean his transfer value would not be based on the Drain Commissioner salary."

Chapman stated there was no discussion during their three way conversation regarding a strategy to enhance the retirement rate. Hardin, said Chapman, followed his advice land that of Harrell to resign and take the oath that day.
Post Sat Nov 26, 2016 5:20 pm 
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untanglingwebs
El Supremo

Corporation Counsel would not be the legal counsel for any of the individual applicant's for the Drain Commissioner position. However, since Chapman had advised Hardin after his appointment, the county, any action commenced to seek recovery from Hardin would have Hardin seeking reimbursement of the county for any loss. Chapman noted how, although his advice was well intentioned, it would have the potential of a net loss to the county. If recovery for compensation were granted, and if Hardin prevailed in his claim for reimbursement, the recovery to the county and the reimbursement would cancel each other out. Chapman also wrote how the expense of litigation in addition to the need to require outside legal counsel for Hardin's claim for for reimbursement would result in a net financial loss to the county.

There was no apparent obligation for either the appointing group or the county to take any action related to the Drain Commissioner appointment, acording to Chapman.
Post Sat Nov 26, 2016 5:41 pm 
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untanglingwebs
El Supremo

" Because of Corporation Counsel's involvement with Mr. Hardin, following the vote to appoint Mr. Hardin to the office of drain Commissioner, being my involvement in relation to Mr. Hardin's resignation letter and taking the oath of office, and because of a potential claim against the county based upon that involvement, in the vent an action is initiated for the recovery of the compensation afforded Mr. Hardin during his service as appointed Drain Commissioner, I am providing this letter as a statement of certain information and perspectives I have regarding the Drain Commissioner appointment. As a matter of professionalism, however, given my involvement in the resignation letter and timing of the oath taking, I do not provide this letter as an opinion letter from Corporation Counsel . The question of whether section 46.30a was applicable to Mr. Hardin's appointment will now be reviewed by the Prosecuting Attorney."
Post Sat Nov 26, 2016 6:07 pm 
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