Removal of Local Government Officials by the Governor - The Detroit Situation

It's tough to get rid of officials guilty of serious misconduct. Recall and impeachment are long, grueling processes, which are of no value late in an official's term. Rarely is removal from office for an ethics violation an option, and ethics investigations and hearings, including appeal to a court, can take a long time, as well. It's easier when an official has been found guilty of a crime, but there are all sorts of ways to delay a criminal case. In the meantime, a city or county administration can come to a standstill, as is the case in Detroit.

The Detroit City Council wants the city's mayor to go, but can't do anything itself (see my earlier blog entry for why the council is so upset). But Michigan happens to have a law allowing the governor to remove an elected local government official under certain circumstances. Here's the law:

The governor shall (emphasis added) remove all city officers chosen by the electors of a city or any ward or voting district of a city, when the governor is satisfied from sufficient evidence submitted to the governor that the officer has been guilty of official misconduct, wilful neglect of duty, extortion, or habitual drunkenness, or has been convicted of being drunk, or whenever it appears by a certified copy of the judgment of a court of record of this state that a city officer, after the officer's election or appointment, has been convicted of a felony. The governor shall not take action upon any charges made to the governor against a city officer until the charges have been exhibited to the governor in writing, verified by the affidavit of the party making them, that he or she believes the charges to be true. But a city officer shall not be removed for misconduct or neglect until charges of misconduct or neglect have been exhibited to the governor as provided in this section and a copy of the charges served on the officer and an opportunity given the officer of being heard in his or her defense. The service of the charges upon the officer complained against shall be made by personal service to the officer of a copy of the charges, together with all affidavits or exhibits which may be attached to the original petition, if the officer can be found; and if not, by leaving a copy at the last known place of residence of the officer, with a person of suitable age, if a person of suitable age can be found; and if not, by posting the copy of the charges in a conspicuous place at the officer's last known place of residence. An officer who has been removed from office pursuant to this section shall not be eligible for election or appointment to any office for a period of 3 years from the date of the removal. A person who has been convicted of a violation of section 12a(1) of Act No. 370 of the Public Acts of 1941, being section 38.412a of the Michigan Compiled Laws, shall not be eligible for election or appointment to an elective or appointive city office for a period of 20 years after conviction.

There are similar provisions relating to other local government officers, but for county officers the controlling verb is "may" rather than "shall." The implication is that the governor has no choice but to proceed with a removal hearing if the charges are properly brought. The governor determined that she had sufficient evidence to hold such a hearing, but even that does not seem required by statute.

According to the Detroit Free Press (the article contains links to other articles on the topic, as well as the witness lists for the governor's hearing), the charges were brought by the Detroit City Council (in a 5-4 vote), which has no power to remove the mayor. The mayor will be represented at the hearing by his general counsel, which seems to be representing the individual, not the office, something I consider inappropriate. The mayor is also being represented by his criminal attorney, which is perfectly appropriate. The hearing is scheduled for September 3 at 9:00 am, and will likely last multiple days (it will be streamed live on www.freep.com).

According to the Free Press article, the mayor's general counsel argues that the hearing should focus on the mayor's intent. This is an interesting argument, given that the statute says nothing about intent, except with respect to neglect of duty. The general counsel also argues that the governor should wait for the criminal proceedings to end. This too is interesting, since the statute specifically requires conviction with respect to two bases for removal: a felony or being drunk (yes, it's an old law), However, it does not require a conviction with respect to any other basis for removal.

It is likely that the governor will not have to remove the mayor, because once he has been removed, he loses his principal bargaining chip with respect to the criminal charges that have been brought against him. It is therefore likely that the mayor will agree to resign as part of a plea bargain. This makes such a state law even more valuable.

But is it good to place this power in the hands of a governor? Michigan's governor is a Democrat, just like the mayor. What if she were a Republican, or someone who had fought an election against the mayor, or an ally of his enemies, or someone who could benefit from making non-Detroiters happy? How much trust would that instill in government?

Robert Wechsler
Director of Research-Retired, City Ethics

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