'(b) 'Incompatible offices' means public offices held by a public official which, when the official is performing the duties of any of the public offices held by the official, results in any of the following with respect to those offices held:

'(i) The subordination of 1 public office to another.

'(ii) The supervision of 1 public office by another.

'(iii) A breach of duty of public office.'

'(e) 'Public officer' means a person who is elected or appointed to any of the following:

'(i) An office established by the state constitution of 1963.

'(ii) A public office of a city, village, township, or county in this state.

'(iii) A department, board, agency, institution, commission, authority, division, council, college, university, school district, intermediate school district, special district, or other public entity of this state or a city, village, township, or county in this state.' (Emphasis supplied.)

'Each organized county shall be a body corporate with powers and immunities provided by law.'

'Board of supervisors shall have legislative, administrative and such other powers and duties as provided by law.'

'(1) The county apportionment commission shall consist of the county clerk, the county treasurer, the prosecuting attorney, and the statutory county chairperson of each of the 2 political parties receiving the greatest number of votes cast for the office of secretary of state in the last preceding general election. If a county does not have a statutory chairperson of a political party, the 2 additional members shall be a party representative from each of the 2 political parties receiving the greatest number of votes cast for the office of secretary of state in the last preceding general election and appointed by the chairperson of the state central committee for each of the political parties. The clerk shall convene the apportionment commission and they shall adopt their rules of procedure. Three members of the apportionment commission shall be a quorum sufficient to conduct its business. All action of the apportionment commission shall be by majority vote of the commission.

'(2) The business which the apportionment commission may perform shall be conducted at a public meeting held in compliance with Act No. 267 of the Public Acts of 1976, being sections 15.261 to 15.275 of the Michigan Compiled Laws. Public notice of the time, date, and place of the meeting shall be given in the manner required by Act No. 267 of the Public Acts of 1976.

'(3) A writing prepared, owned, used, in the possession of, or retained by the commission in the performance of an official function shall be made available to the public in compliance with Act No. 442 of the Public Acts of 1976, being sections 15.231 to 15.246 of the Michigan Compiled Laws.'

'In the case of People v Freedland, 308 Mich 449; 14 NW2d 62 (1944), the Michigan Supreme Court considered the meaning of the terms 'office' and 'public office,' stating.

"'A public office is the right, authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.'

"'We apprehend that the term 'office," said the judges of the supreme court of Maine, 'implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office; and the exercise of such power within legal limits constitutes the correct discharge of the duties of such office. The power thus delegated and possessed may be a portion belonging sometimes to one of the three great departments and sometimes to another, still it is a legal power which may be rightfully exercised, and in its effects it will bind the rights of others, an be subject to revision and correction only according to the standing laws of the State."

In People v Freedland, supra, Kent County Register of Deeds v Kent County Pension Board, 342 Mich 548; 70 NW2d 765 (1955), Meiland v Wayne Probate Judge, 359 Mich 78; 101 NW2d 335 (1960), and Dearborn Fire Fighters v Dearborn, 394 Mich 229; 231 NW2d 226 (1975), the Supreme Court of Michigan set forth criteria for determining whether a position constitutes an office as follows:

""After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislation; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior office or body; (5) it must have some permanence and continuity, and not be only temporary or occasional."' [People v Freedland, supra, pp 457-458 [Emphasis added.]

'With respect to the first and second criteria of incompatibility at common law (the subordination of one public office to another, and its converse, the supervision of one public office by another) the statute recites these principles without definition. Thus, it must be assumed that the Legislature accepted the commonly-understood meanings of the terms 'subordination' and 'supervision.' Detroit Edison v Secretary of State, 281 Mich 428; 275 NW 196 (1937).

Where, however, incompatibility, arises only when the performance of the duties of the two offices results in a breach of duty of a public office, there is no incompatibility until the two public entities actually enter into contractual negotiations with each other. Also, in such cases, the public officer or employee may avoid breaching his or her duty of loyalty by abstaining from participating in the consideration of the contract.

'The incompatibility statute does not define the term 'breach of duty of public office'. Certainly, a public officer's failure to perform duties prescribed by statute would constitute a breach of duty. . . .

In addition to the duties expressly imposed upon public officials by statute, the common law has long recognized the fiduciary obligation a public official owes the public entity he or she serves. In People v Township Board of Overyssel, 11 Mich 222, 225 (1863), the Court stated:

". . . All public officers are agents, and their official powers are fiduciary. They are trusted with public functions for the good of the public; to protect, advance and promote its interests, and not their own. And, a greater necessity exists than in private life for removing from them every inducement to abuse the trust reposed in them, . . ..'

'Thus, within the context of the incompatibility statute, a breach of duty would occur when the simultaneous holder of two public offices failed to protect, advance and promote the interests of both public offices.' (Emphasis supplied.)