Is Ludington City Manager John Shay Required to Take an Oath of Office?

[XLFD]

While they have never stated anything until this last week, I always have got the impression that the various city leaders are totally indifferent that Ludington City Manager John Shay has not ever taken an oath of office in his nearly thirteen years of service. 

City Attorney Richard Wilson made a somewhat compelling argument as to why the nearly sixty people who hold the office of Ludington City Attorney do not have to swear an oath of office, but the argument regarding the city manager has elicited no legal opinion from those threescore strong attorneys.  Until now.

Back in 2011, I noted here that Shay had not ever taken an oath of office.  I have noticed this fact on many occasions, including the public comment sections at city council meetings (such as the Feb 18, 2013, May 19, 2014 and Sept. 22, 2014 meetings), without anybody from the city saying why they let somebody continue to break a law in gross violation of the public trust.  Until now.

Fresh from delivering a sermon on why it was important to have the city manager ascribe to an oath of office at the April 13, 2015 meeting, I sent a FOIA request to the Ludington FOIA Coordinator to make sure that Shay hasn't swore or affirmed an oath since the last time I had him under oath at a deposition in May of 2013.  The basic request was for:

"Every signed/dated oath of office document for City Manager John Shay.  If such do not exist, consider this an open-ended subscription for a signed/dated oath of office when it becomes available (i.e. he takes the oath of office for the Ludington City Manager position).  You may note I had a previous such request and subscription in the past with a previous FOIA Coordinator."

Sent Tuesday, April 14, I received the following reply the following Monday; I have bold-faced the bold-faced assertion: 

"Please find enclosed Response to FOIA #275 below.  There is no responsive documents available as City Manager is not required to sign an oath of office.  Further, I could not find on the record your prior subscription request.  Please be advised that I have entered this request as a 6-month subscription request and your response would be triggered should a document meeting the parameters of your request is entered into the public record." 

Oath FOIA #275.pdf

No further clarification was received on the assertion that the city manager of Ludington does not have to take an oath was given, which was odd, since this FOIA Coordinator has often pointed to laws and precedents that he believes allows him to circumvent requests.  Since my previous research had shown otherwise, I tried to do my damnedest to try to help him justify this statement.  But I failed in my three different attempts.

First Try, State Law: 

The Michigan Constitution demands in Article XI, Sec. 1 that all officers "before entering upon the duties of their respective offices, shall take and subscribe the following oath or affirmation: I do solemnly swear (or affirm) that I will support the Constitution of the United States and the constitution of this state, and that I will faithfully discharge the duties of the office of .......... according to the best of my ability. No other oath, affirmation, or any religious test shall be required as a qualification for any office or public trust."

Is the Ludington City Manager an officer?  In section 3.5 of the city charter he is called an appointed officer "The Mayor shall appoint a City Manager and a City Attorney, with the approval of the majority of the Council elect. The Council may create such additional offices as it may deem necessary."   Section 10.1 of the City Code and others refer to the position of city manager as an office. 

Does the State Constitution apply to local officers?   MCL 15.151 declares "All persons now employed, or who may be employed by the state of Michigan or any governmental agency thereof, and all other persons in the service of the state or any governmental agency, shall, as a condition of their employment, take and subscribe to the oath or affirmation required..."  Even employees, not just officers, of local governments and the state must swear or affirm the oath.  This is why even volunteer firefighters and police reserve officers swear and sign an oath of office here.

Thus state law does not support the city's assertion.

Second Try, Local Law:

You may question whether local law would be able to trump mandates of state law, and typically, it can't.  But if our city founders of yesteryear declared at some point that oaths of office were not required for certain employees and offices, the city's assertion may have some standing in legitimacy. 

Alas, section 4.11 of the city code says:  "Every officer, elected or appointed, before entering upon the duties of the office, shall be given the oath of office prescribed for public officers by Article XI, Section 1 of the Constitution of the State of Michigan and shall file the oath with the Clerk... In case of failure to comply with provisions of this section within fifteen (15) days from the date the officer is notified in writing of the election or appointment, such officer shall be deemed to have declined the office, and such office shall thereupon become vacant unless the Council shall by resolution extend the time in which such officer may qualify."

Section 5.2 clarifies that:  "A vacancy (in office) shall be deemed to occur upon... failure to take the oath of office as prescribed in Section 4.11."

The local ordinances are even more clearer than state laws in their assertion that officers need to take the oath of office timely or forfeit their office, absent permission by the council to extend the period by a resolution.  Another clear rebuttal of the city's assertion.

Third Try, Check Out What Other Cities are Doing

If the city leaders are so confident that their appointed city manager is following the law, they must be able to point out other examples in Michigan where cities have city managers that do not have to swear or affirm an oath. 

After a diligent search via Google keywords and looking at multitudes of city charters/codes, I was not able to find any that openly violated the state mandates on oath taking.  Most charters have similar wording to Ludington's and/or the state's in regard to mandating an oath or affirmation.  Such as Manistee's charter, which is typical of most city's charters in this area, and Petoskey (http://www.petoskey.us/documents/city-charter#5.1):

I was even able to find a ton of counter-examples to the city's assertion.  Here's a city manager being sworn in in Grand Rapids

Headline:  Greg Sundstrom sworn in at City Hall Tuesday night as Grand Rapids' new city manager, Caption:  With his son, Ben, 19, and wife, Audrey, by his side, Greg Sundstrom is sworn in as the Grand Rapids' new city manager by Mayor George Heartwell during Tuesday's City Commission meeting at City Hall.

The City of Walker in that area also believes that not only the city manager, but his assistants, should formally receive the oath of office as required by law:

The City of New Buffalo has nice swearing-in pictures of various city managers and their assistants at their website:

The City of New Buffalo is pleased to announce our new City Manager, Robert Anderson. City Clerk Allyson Holm administered the Oath of Office on Wednesday, April 15.

Milan, Michigan has a dual police chief/city manager getting sworn in along with three other folks getting sworn in in the picture below.

Milan (MI) City Clerk/treasurer Sherry Steinwedel administers the oath of office to Police Chief and City Manager Gerard Scherlinck, Councilwoman Ann Gee and new members Graeme Rogerson and Sandra Allen.

Former Wayland City Manager Chris Yonker is sworn in and seems to be enjoying it in Ithaca, Michigan below:

Ithaca is in Gratiot County; Mr. Yonker replaced a manager who was found in a "resign or be fired" situation

It was an emotional experience for Randy Fernandez to be sworn in as Marysville's new city manager, inviting his 85 year old father to be up with him when he swore his oath:

Fernandez named city manager in Marysville, a city in southeast Michigan.

A considerable amount of time was spent looking around the web for a Michigan city or village that had a city manager who maintained that he did not need to take an oath of office or any of them or their attorney friends trying to rationalize that point.  No court precedent, no Attorney General Opinions.  Nothing supportive of this was found. 

Fourth Try, Admit the Obvious

When state law, local law, and the actions of every other municipality in Michigan all point to the fact that not only Ludington city managers, but all city managers are required to take an oath of office, then the point is moot.  John Shay needed to take the Constitutional Oath of Office over twelve years ago or vacate his job.  The city council could get rid of this lawbreaking baggage without severance pay, if they just note he is twelve years past due for taking an oath-- if they weren't totally complicit with him by violating their own oath of office in their continued support of him. 

In the process of removing this cancerous growth on Ludington's body politic, they will save the city a ton of wasted money and get rid of a huge liability.  Sadly, the citizens lack the ability to recall or vote against an appointed officer.  Such is the concept of democracy in the city manager form of government.

[Willy]

I've dealt with enough attorney's, especially Government attorney's who think they know the law but misread, misinterpret or just misunderstand what they are reading.  Like many other jobs that cause people to get in a rut, attorneys will misread something and for years will give advice on that misinformation. This also applies to code enforcement or any other job that requires dealing with laws, ordinances, ect. So Wilson may be one of those attorney's. Just from reading what X has supplied it appears to be very clear that Wilson has somehow made a mistake. Calling the Attorney General is not going to solve that unless there are "exceptions" or laws that cover this situation which have been missed or overlooked.

[AQUAMAN]

Umm, there's a website that you can pay $30 to for legal standing precedents pertaining to almost any legal code or subject. It would be plausible, that some oath of office takers, or their respective employers, have been down that road in the past. Those legal precedents in court pay off as any judge ruling on some legal matter has to highly respect them. And any attorney has to also. In this case of course, it would be beneficial to see just where appellate judges stand on this matter, esp. in government job holders. Shyster IS a legal government job holder, whether Wilson warps that interpretation or not. I wonder what Mexican degree Wilson bought years ago to pass as a legal bar certified attorney.