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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6248 September 25, 1984 INCOMPATIBILITY: Member of board of education of school district and member of a county board of commissioners The offices of member of a board of education of a school district and member of a county board of commissioners in a county in which the electors have not adopted separate tax rate limitations are incompatible and may not be simultaneously occupied by the same person. Honorable Curtis Hertel State Representative The Capitol Lansing, Michigan You have requested my opinion whether the public offices of member of the board of education of a school district and member of the county board of commissioners in the same county may be simultaneously occupied by the same person. In the county in question, the electors have not adopted separate tax rate limitations pursuant to Const 1963, art 9, Sec. 6 and 1933 PA 62, Sec. 5a et seq; MCLA 211.205a et seq; MSA 7.65(1) et seq. At the outset, it is noted that your question relates to a school district and a county which are in competition with each other for the allocation of millage by the county tax allocation board. 1933 PA 62, Sec. 11; MCLA 211.211; MSA 7.71. OAG, 1969-1970, No 4671, p 51, 52 (May 14, 1969), concluded that, at common law, the offices of member of a board of education of a school district and member of a county board of supervisors were incompatible in the sense that there would be a division of loyalty on the part of the same person holding the office of member of a board of education of a school district and member of the county board of supervisors in the same county since such person would be required to further and defend the interests of the respective governmental units in the vital matter of tax allocation. The county board of supervisors has been redesignated as the county board of commissioners. 1966 PA 261, Sec. 16; MCLA 46.416; MSA 5.359(16). The Legislature addressed the question of incompatibility of public positions in 1978 PA 566; MCLA 15.181 et seq; MSA 15.1120(121) et seq. Section 1 thereof provides, in pertinent part: 'As used in this act: '(b) 'Incompatibile 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.' 1978 PA 566, supra, Sec. 2(1) commands that: 'Except as provided in section 3, a public officer or public employee shall not hold 2 or more incompatible offices at the same time.' A breach of duty of public office occurs when the same person simultaneously occupies two public offices in two separate governmental units in competition with each other for the allocation of millage by the county tax allocation board. OAG, 1983-1984, No 6214, p 274 (April 3, 1984). Under the attendant facts, as provided by 1933 PA 62, Sec. 9, et seq, both the school district and the county prepare budgets which are submitted to the county tax allocation board for examination and for the allocation of the tax rates for the respective units of government. Moreover, if the school district and the county in question undertake negotiations for or enter into a contract with each other, the two offices would become incompatible. OAG, 1979-1980, No 5626, p 537 (January 16, 1980). The officeholder in question may not avoid the incompatibility of public positions by abstension. In that regard, OAG, 1983-1984, No 6214, supra, concluded: 'It must be observed that the allocation of millage by the county tax allocation board occurs on an annual basis. Thus, the incompatibility of public positions is unavoidable. Further, abstension by the officeholder in question from the competition between the school district and the township for millage allocated by the county tax allocation board is no answer to the problem. OAG, 1979-1980, No 5626, supra, at p 545, observed that: "Thus, a public official's abstension from the responsibilities of his or her office in order to avoid participating in the approval of both sides of an agreement between the two public entities which he or she serves is itself a breach of duty. Only vacation of one office will resolve the public official's dilemma" It is my opinion, therefore, that the offices of member of a board of education of a school district and member of a county board of commissioners in the same county in which the electors have not adopted separate tax rate limitations are incompatible and may not be simultaneously occupied by the same person. Frank J. Kelley Attorney General
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