BD. OF TRUSTEES POLICE & FIREMEN RET. SYS. v. City of Detroit ( 1985 )

Per Curiam.

Defendants appeal from the trial court’s order granting summary judgment in favor of plaintiff on defendants’ counterclaim.

On July 1, 1982, the City of Detroit failed to pay a $39,983,039.24 contribution to the Policemen and Firemen Retirement System of the City of Detroit. The city also failed timely to pay a $92,454,926.08 contribution in 1981 and a $14,600,000 contribution in 1980, to the retirement system. Plaintiff, the Board of Trustees of the Policemen and Firemen Retirement System of the City of Detroit, retained independent legal counsel to pursue litigation to collect these sums. During the course of that litigation, the city counterclaimed arguing that the Board of Trustees for the Retirement System could not retain independent legal counsel but had to rely on the city’s corporate counsel for legal advice. The city argues that since it was being sued, its corporation counsel would appoint the board of trustees’ counsel. The trial court granted summary judgment in favor of the board of trustees, finding that it could retain independent legal counsel to pursue its claims against the city.

The sole legal issue as presented by the trial court and by both parties is whether 1982 PA 55, MCL 38.1132 et seq.; MSA 3.981(112) et seq., authorized the boards of trustees of all public employee retirement systems to independently retain private legal counsel. Defendants argue that the statute does not grant the board of trustees the power to retain independent legal counsel and, therefore, the city’s charter, Art 6, Ch 4, requires that the board be represented by the city’s corporation counsel or other counsel appointed by corporation counsel.

We must first determine whether MCL 38.1133; MSA 3.981(113) is ambiguous. That statute in pertinent part states: "An investment fiduciary may use a portion of the income of the system to defray the costs of investing, managing and protecting the assets of the system; may retain investment and all other services necessary for the conduct of the affairs of this system; and may pay reasonable compensation for those services”. We feel that the language of this statute is unambiguous on its face. Sneath v Popiolek, 135 Mich App 17; 352 NW2d 331 (1984). The statute clearly states that the investment fiduciary may retain services necessary for the conduct of the affairs of the system. This language is not ambiguous because it grants the investment fiduciary broad powers. We note that, under the more specific statute governing firemen and policemen pensions, a retirement board formed under that statute shall "[r]etain legal * * * services as may be necessary for the conduct of the affairs of the retirement system and make compensations for the services retained”. MCL 38.552(2); MSA 5.3375(2).

Where a statute is clear and unambiguous on its face, it should be enforced as written. In re Chavez Estate, 127 Mich App 430; 339 NW2d 35 (1983). The issue before us then is whether independently retained legal service is necessary for the conduct of the affairs of the Policemen and Firemen Retirement System of the City of Detroit. The facts of the instant case clearly show that such independent legal service is necessary. The city has repeatedly failed timely to make large contributions to the retirement system. We feel that there would be an obvious conflict of interest if the city represented the retirement system or appointed counsel for the retirement system. Defendants should not be allowed to choose their own opposing counsel. Code of Professional Responsibility, Canon 5 and DR 5-105, DR 5-107. The city may neglect its alleged duty to represent the retirement system, especially when the system is claiming that the city owes it millions of dollars. In fact, in defense of the underlying action, the city claimed that it had no legal obligation whatsoever to pay the contributions on the date they were due. Under these circumstances, we do not feel that the retirement system would be properly represented by the city’s corporate counsel or by other counsel appointed by the corporate counsel. We believe that independent legal counsel was necessary for the conduct of the affairs of the system.

The city also relies on a provision of its charter which states that the city’s corporate counsel must represent all of the city’s administrative agencies. Where a city charter provision conflicts with general statutory law, the statute controls in all matters which are not of purely local character. Brimmer v Village of Elk Rapids, 365 Mich 6, 12-13; 112 NW2d 222 (1961). The statute and charter involved in the instant case conflict since the statute provides that plaintiff may choose its own legal counsel and the charter provides that defendants shall choose plaintiffs legal counsel. We are unable to find that the Policemen and Firemen Retirement System is strictly and exclusively a municipal concern. The procurement of legal counsel to represent the Board of Trustees of the Retirement System primarily concerns the city’s policemen and firemen and not the general public. We note that MCL 38.1133; MSA 3.981(113), which states that the provisions of this act shall supersede any investment authority previously granted to a system under any other law of this state, further supports our position. We therefore feel that the lower court correctly ruled that the statute, MCL 38.1133; MSA 3.981(113), controls and that plaintiff may retain independent legal counsel when necessary for the conduct of the affairs of the system.

Affirmed.