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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. 6283 April 2, 1985 INCOMPATIBILITY: Member of board of education of school district also serving as member of township board of zoning appeals The positions of member of a board of education of a school district and member of a township board of zoning appeals are not incompatible until such time as a matter comes before the township board of zoning appeals involving the school district, in which event, the two public positions would be incompatible. Honorable Perry Bullard State Representative The Capitol Lansing, Michigan You have requested my opinion whether the positions of member of the board of education of a school district and member of a township board of zoning appeals are incompatible in a township which has transferred the powers and duties of the zoning board to a planning commission. Holding incompatible public positions by a public officer or employee is prohibited by 1978 PA 566; MCLA 15.181 et seq; MSA 15.1120(121) et seq, Sec. 2. Section 1(b) of 1978 PA 566, supra, establishes the standards by which incompatibility is to be determined as follows: '(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.' The first two statutory standards of incompatibility restate the common law. OAG, 1979-1980, No 5626, p 537, 541-542 (January 16, 1980). The third standard of incompatibility differs from the common law by providing that incompatibility occurs when a breach of duty results from actual performance of the duties of public office. The common law had, instead, based incompatibility on the nature of each public position and the potential for conflict which was inherent in the duties and responsibilities of each position. As previous opinions have concluded, abstention from performing the duties of office in order to avoid invocation of 1978 PA 566, Sec. 1(b)(iii), supra, would, itself, constitute a breach of duty. OAG, 1979-1980, No 5626, supra, at 544-545; OAG, 1979-1980, No 5835, p 1131 (December 30, 1980); and OAG, 1981-1982, No 5955, p 311 (August 12, 1981). Boards of education of school districts are provided for by the School Code of 1976, 1976 PA 451; MCLA 380.1 et seq; MSA 15.4001 et seq. Township zoning boards and township boards of zoning appeals are established pursuant to 1943 PA 184; MCLA 125.271 et seq; MSA 5.2963(1) et seq, Secs. 4 and 18. The functions of the township board of zoning appeals are set forth in 1943 PA 184, supra, Sec. 20 as follows: 'The township board of appeals shall act upon all questions as they may arise in the administration of the zoning ordinance, including the interpretation of the zoning maps, and may fix rules to govern its procedures sitting as a board of appeals. It shall hear and decide appeals from and review any order, requirements, decision, or determination made by an administrative official or body charged with enforcement of an ordinance adopted pursuant to this act. It shall hear and decide all matters referred to it or upon which it is required to pass under an ordinance adopted pursuant to this act. With regard to special land use and planned unit development decisions, an appeal may be taken to the board of appeals only if provided for in the zoning ordinance. The concurring vote of a majority of the members of the board of appeals shall be necessary to reverse an order, requirement, decision, or determination of the administrative official or body, or to decide in favor of the applicant any matter upon which they are required to pass under or to effect any variation in an ordinance adopted under this act. The appeal may be taken by any person aggrieved or by any officer, department, board, or bureau of the township, county, or state. The zoning board of appeals shall state the grounds of each determination.' Further, 1943 PA 184, supra, Sec. 23 provides in pertinent part: 'The board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination as in its opinion ought to be made in the premises, and to that end shall have all the powers of the office or body from whom the appeal was taken and may issue or direct the issuance of a permit.' The functions of a township board of zoning appeals are the same regardless of whether other zoning responsibilities are vested in a township zoning board pursuant to 1943 PA 184, supra, or in a township planning commission pursuant to 1959 PA 168, Sec. 11; MCLA 125.331; MSA 5.2963(111). See also, 1943 PA 184, supra, Sec. 18. OAG, 1961-1962, No 3621, p 257 (February 5, 1962), dealt with the question whether incompatibility of public offices existed when a public school board member also served as a member of a township board of zoning appeals. In concluding that an incompatibility under common law existed due to a potential conflict in the duties of the two public offices, the opinion stated: 'It is entirely possible that the appeal board might be required to pass upon a matter in which the school district has an interest such as an application for permission to establish a trailer coach park, under a variation from the zoning as prescribed by a township zoning ordinance. Interest of the school district therein might result from the potential increase in school enrollment. A member of the school board serving on the board of appeals would under those circumstances be placed in an antagonistic position by reason of his duty to the school district conflicting with his duty to serve impartially as a member of the board of appeals.' (Emphasis added.) (p 260) It should be noted that the Michigan Court of Appeals has recently held that school districts are subject to municipal zoning ordinances, and they may appeal to the zoning boards of appeals. Cody Park Ass'n v Royal Oak School Dist, 116 Mich App 103, 108-109; 321 NW2d 855 (1982), lv den, 417 Mich 985 (1983). Should such incompatibility arise, the official must vacate either one of the two positions. OAG, 1979-1980, No 5626, supra, at 543-544. It is my opinion that the positions of member of a board of education of a school district and member of a township board of zoning appeals are not incompatible under 1978 PA 566, supra, Sec. 1(b)(iii), until such time as a matter comes before the township board of zoning appeals involving the school district, in which event the two public positions in question would be incompatible. Frank J. Kelley Attorney General
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