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. 6747

January 14, 1993

INCOMPATIBILITY:

Offices of county road commissioner and deputy township supervisor

A person may simultaneously serve as a county road commissioner and as a deputy township supervisor, but if a contract is negotiated or entered into between the county road commission and the township board, the person must vacate one of the two public offices.

Senator John Pridnia

State Senator

The Capitol

Lansing, Michigan

You have asked whether an individual may simultaneously serve on the board of county road commissioners and as a deputy township supervisor.

1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, governs the incompatibility of public offices by prohibiting one person from simultaneously holding two or more incompatible public positions. Section 1(b) of 1978 PA 566 defines incompatible offices as:

[P]ublic 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.

A deputy township supervisor has no supervisory authority over the office of county road commissioner nor is the office of deputy township supervisor subordinate to the office of county road commissioner. The remaining issue, therefore, is whether the duties of each office result in a breach of duty of public office pursuant to section 1(b)(iii) of 1978 PA 566.

When two public offices occupied by the same person are on opposite sides of a contractual relationship, there is a breach of duty of public office. Further, abstaining from voting on the contract is itself a breach of duty. Only the vacating of one office will solve the public official's dilemma. Contesti v Attorney General, 164 MichApp 271, 280-281; 416 NW2d 410 (1987), lv den 430 Mich 893 (1988); Wayne County Prosecutor v Kinney, 184 MichApp 681, 684; 458 NW2d 674, lv den 436 Mich 887 (1990).

A township board and the road commission of a county in which the township is located are authorized to contract with each other for the acquisition, construction and maintenance of highways within the township. MCL 247.351; MSA 9.195(1). Thus, OAG, 1991-1992, No 6718, p 142 (April 20, 1992), concluded that the offices of county road commissioner and township supervisor are not incompatible unless a contract is negotiated or entered into between the county road commission and the township board.

A township supervisor is a voting member of the township board. MCL 41.70; MSA 5.62. A deputy township supervisor is appointed by the township supervisor. The deputy township supervisor is not granted the power to vote. MCL 41.61(2); MSA 5.52(2), provides:

The township supervisor may appoint a deputy township supervisor, who shall serve at the pleasure of the supervisor. The deputy shall take an oath of office and file the oath with the township clerk. In case of the absence, sickness, death, or other disability of the supervisor, the deputy shall possess the powers and perform the duties of the supervisor, except the deputy shall not have a vote on the township board. The deputy shall be paid by salary or otherwise as the township board determines appropriate. With the approval of the supervisor, the deputy may assist the supervisor in the performance of the supervisor's duties at any additional times agreed upon between the township board and the supervisor, except the deputy shall not have a vote on the township board. [ Emphasis added.]

If a contract were negotiated between the county road commission and the township board, and the deputy township supervisor were involved in negotiating the contract, either as a substitute for the supervisor or as the supervisor's assistant, there would be an incompatibility of public position. OAG, 1991-1992, No 6718, p 142, supra.

The same result would be obtained even if the county road commission and the township board entered into a contract and the deputy township supervisor were not involved in negotiating the contract because the deputy township supervisor is an officer of the township. As an officer of the township, it is clear that:

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.

OAG, 1979-1980, No 5626, p 537, 543 (January 16, 1980).

Here, when the county road commissioner votes on a contract with the township board, he also has a competing duty to protect, advance and promote the interests of the township of which he is a public officer. Thus, these competing legal duties on both sides of the contract give rise to a breach of duty under section 1(b)(iii) of 1978 PA 566 if the county road commission and the township board negotiate or enter into a contract. If that situation arises, the person in question must vacate one of the two public offices. Contesti v Attorney General, supra, 164 MichApp, at pp 280-281; Wayne County Prosecutor v Kinney, supra, 184 MichApp, at p 684.

It is my opinion, therefore, that a person may simultaneously serve as a county road commissioner and as a deputy township supervisor, but if a contract is negotiated or entered into between the county road commission and the township board, the person must vacate one of the two public offices.

Frank J. Kelley

Attorney General