STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6368

June 5, 1986

INCOMPATIBILITY:

Member of board of education of school district--bus driver

POLITICAL ACTIVITY:

Bus driver elected member of employing board of education

A person may not simultaneously serve as a member of the board of education of a school district and as a bus driver employed by the same school district.

A person employed by a school district as a bus driver, upon election to the office of member of the board of education of the employing school district, must resign his employment or obtain a leave of absence from his or her employment as a bus driver for the period of the term to which the employee was elected.

Honorable John M. Engler

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion whether a person may simultaneously serve as a member of a board of education and as a bus driver in the same school district.

In a letter opinion addressed to Representative Engler and to Representative Jacobetti, dated November 3, 1975, it was concluded that, based upon the common law doctrine of incompatibility of public positions, the positions of member of a board of education and bus driver in the same school district were incompatible and could not be held simultaneously by the same person. The opinion's rationale concluded that the supervisory control the school board member had over his own job as a bus driver, in terms of hiring, establishing compensation, and working conditions as well as the termination of employment, made the two positions incompatible under the common law criteria of incompatibility that a person may not occupy a public position that supervises another public position held by the same person.

Subsequently, the Legislature enacted MCL 15.181 et seq; MSA 15.1120(121) et seq, to deal with incompatibility of public positions. In MCL 15.181; MSA 15.1120(121), the Legislature provided:

Thus, the statute adopted the common law criteria of incompatibility of public positions in that the same person may not simultaneously hold two public positions when one of those public positions supervises the other. OAG, 1979-1980, No 5626, p 537, at 538-542 (January 16, 1980). Further, MCL 15.181 et seq; MSA 15.1120(121) et seq, has been applied on several occasions to prohibit the simultaneous holding of two public positions where one of the positions supervises the other. See OAG, 1981-1982, No 6029, p 532 (January 20, 1982), city commissioner and member of downtown development authority board; OAG, 1981-1982, No 6067, p 646 (May 13, 1982), member of board of trustees of county hospital and county hospital employee; OAG, 1981-1982, No 6083, p 689 (July 7, 1982), township supervisor and township manager.

Moreover, as provided in MCL 15.403(2); MSA 4.1702(3)(2), a school district employee that is elected to the board of education of the school district in which he or she is an employee must resign his or her employment unless he or she is granted a leave of absence from his or her employment prior to assuming the office of member of the board of education. OAG, 1981-1982, No 5863, p 79 (March 26, 1981).

It is, therefore, my opinion that a person may not simultaneously serve as a member of a board of education and as a bus driver employed by the same school district. It is my further opinion that in the event an employee of a school district is elected to the office of member of the board of education of the employing school district, the employee must resign from his or her employment or obtain a leave of absence for the term to which the employee was elected.

Frank J. Kelley

Attorney General