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. 6748 February 2, 1993 INCOMPATIBILITY: County commissioner--maintenance worker for county road commission A member of a county board of commissioners may also serve as a maintenance worker for the county road commission in the same county of less than 25,000 population if authorized to do so by the county board of commissioners. Honorable John D. Pridnia State Senator The Capitol Lansing, Michigan You have asked whether a member of a county board of commissioners may also serve as a maintenance worker for the county road commission in the same county. The county boards of commissioners act, 1851 PA 156, MCL 46.1 et seq; MSA 5.321 et seq, prohibits board members from holding other county employment except as otherwise provided by law. Section 30a(1) of that statute, MCL 46.30a(1); MSA 5.353(1), provides in relevant portion: A member of the county board of commissioners of any county shall not be eligible to receive, or shall not receive, an appointment from, or be employed by an officer, board, committee, or other authority of that county except as otherwise provided by law. [ Emphasis added.] See, OAG, 1979-1980, No 5557, p 377 (September 7, 1979). In addition to the foregoing prohibition on dual employment, the incompatible offices act, 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, in section 2, prohibits 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. The foregoing standards, however, are not the sole criteria used to determine incompatibility of public offices in a governmental unit with a population of less than 25,000. Section 3 of 1978 PA 566 was amended by 1992 PA 10 and now provides in relevant portion: (4) Section 2 shall not be construed to do any of the following: (a) Prohibit public officers or public employees of a city, village, township, or county having a population of less than 25,000 from serving, with or without compensation, as emergency medical services personnel as defined in section 20904 of the public health code, Act No. 368 of the Public Acts of 1978, being section 333.20904 of the Michigan Compiled Laws. (b) Prohibit public officers or public employees of a city, village, township, or county having a population of less than 25,000 from serving, with or without compensation, as a firefighter in that city, village, township, or county if that firefighter is not any of the following: (i) A full-time firefighter. (ii) A fire chief. (iii) A person who negotiates with the city, village, township, or county on behalf of the firefighters. (c) Limit the authority of the governing body of a city, village, township, or county having a population of less than 25,000 to authorize a public officer or public employee to perform, with or without compensation, other additional services for the unit of local government. [ Emphasis added.] In 1992 PA 10, the Legislature recognized the need for local units of government of limited population to utilize their public officials and employees to fill all of the available public positions. An examination of the legislative history of 1992 PA 10 reveals that: The bills are a response to problems that have arisen in small, mostly rural communities, which often must rely on the same people to serve in several different capacities in order to fulfill the communities' needs. Larger and more urban communities normally have little need for part-time or volunteer emergency workers. Senate Legislative Analysis, HB 4262 and HB 4263, February 13, 1992. (1) It is well established that the Legislature is presumed to enact laws having regard for existing statutes relating to the same subject matter. Wayne County Prosecutor v Wayne County Board of Comm'rs, 44 MichApp 144, 157; 205 NW2d 27 (1972), 1v den 389 Mich 768 (1973), and authorities cited therein. The population of Kalkaska County currently being less than 25,000, the individual clearly falls within the language of section 3(4)(c) of 1992 PA 10 quoted above which applies to performing "other additional services for the unit of local government" if authorized to do so by the governing body of the county. Therefore, 1992 PA 10 satisfies the exception to the prohibition on other county employment set forth in section 30a(1) of the county boards of commissioners act, supra. OAG, 1991-1992, No 6730, p ____ (September 4, 1992). It is my opinion, therefore, that a member of a county board of commissioners may also serve as a maintenance worker for the county road commission in the same county of less than 25,000 population if authorized to do so by the county board of commissioners. (2) Frank J. Kelley Attorney General (1 1992 PA 9 added section 3a to the statute dealing with conflicts of interest by public servants, 1968 PA 317, MCL 15)
(2 In light of the foregoing analysis and conclusion, Letter Opinion of the Attorney General to then Kalkaska County Prosecuting Attorney Michael E)
Michalak dated August 3, 1992, is limited in its application to counties with a population of 25,000 or more.