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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. 6527

June 28, 1988

CONSTITUTIONAL LAW: Const 1963, art 4, Sec. 8--member of Legislature serving on county solid waste planning committee

LEGISLATURE: Appointment of member to a county solid waste planning committee

A member of the Legislature is precluded by Const 1963, art 4, Sec. 8, from simultaneously serving as a member of a county solid waste planning committee.

Honorable James A. Kosteva

State Representative

The Capitol

Lansing, Michigan 48913

You have requested my opinion on whether a conflict of interest would exist if a member of the Legislature, while serving in that body, accepted an appointment to the Wayne County Solid Waste Planning Committee as a member representing the general public.

Most pertinent to your inquiry is Const 1963, art 4, Sec. 8, which provides:

"No person holding any office, employment or position under the United States or this state or a political subdivision thereof, except notaries public and members of the armed forces reserve, may be a member of either house of the legislature."

As was stated in OAG, 1981-1982, No 6075, p 672 (June 14, 1982):

"Thus, the Michigan Constitution clearly declares the public policy of this State to be 'that prohibition of duality in office-holding by members of the the Legislature extends to public employment or position as well as to public office.' OAG, 1963-1964, No 4309, p 459 (September 11, 1964).

"....

"[C]ommunity college districts are public agencies which fall within the ambit of Const 1963, art 4, Sec. 8, supra, and a community college district is impacted by the prohibition expressed by the people in Const 1963, art 4, Sec. 8 that members of the Legislature shall not accept a position or employment with such an entity.

"OAG, 1975-1976, No 5047, p 495 (June 11, 1976) applied Const 1963, art 4, Sec. 8 to preclude a member of the Legislature from serving on the board of directors or the project district council of an economic development corporation, an agency and instrumentality of a municipality."

Resolution of your question, therefore, requires consideration of whether appointment as a member of the Wayne County Solid Waste Planning Committee constitutes holding a position under this state or a political subdivision thereof.

MCL 299.426; MSA 13.29(26), provides in pertinent part:

"(1) The county executive of a charter county that elects a county executive and that chooses to prepare a solid waste management plan under section 25 or the county board of commissioners in all other counties choosing to prepare an initial 20-year solid waste management plan under section 25, or the municipalities preparing an initial 20-year plan under section 25(4), shall appoint a planning committee to assist the agency designated to prepare the plan under section 25. If the county charter provides procedures for approval by the county board of commissioners of appointments by the county executive, an appointment under this subsection shall be subject to that approval. A planning committee appointed pursuant to this subsection shall be appointed for terms of 2 years. A planning committee appointed pursuant to this subsection may be reappointed for the purpose of completing the preparation of the initial plan or overseeing the implementation of the initial plan. Reappointed members of a planning committee shall serve for terms not to exceed 2 years as determined by the appointing authority. An initial 20-year solid waste management plan shall only be approved by a majority of the members appointed and serving.

"(2) A planning committee appointed pursuant to this section shall consist of 14 members. Of the members appointed, ... 3 shall represent the general public. ... Vacancies shall be filled in the same manner as the original appointments. A member may be removed for nonperformance of duty."

It is clear that the positions on the Wayne County Solid Waste Planning Committee are filled by the county, which also has the authority to fill vacancies as they occur, to reappoint the entire committee if necessary, and to remove members for nonperformance of duty.

It is my opinion, therefore, that a position on the Wayne County Solid Waste Planning Committee falls within the ambit of Const 1963, art 4, Sec. 8, and a member of the Legislature is precluded from simultaneously serving as member of a county solid waste planning committee.

Frank J. Kelley

Attorney General


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