STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6853

June 6, 1995

INCOMPATIBILITY:

Township supervisor also serving as a member of a countywide solid waste management planning committee

A township supervisor may not have on a countywide solid waste management planning committee as a representative of the general public.

Jay S. Finch

Dickinson County Prosecuting Attorney

P.O. Box 725

Iron Mountain, MI 49801

You have asked if a township supervisor may serve on a countywide solid waste management planning committee as a representative of the general public, rather than as a representative of the township.

Section 11534(1) of the Natural Resources and Environmental Protection Act, 1994 PA 451, MCL 324.101 et seq; MSA 13A.101 et seq, requires counties that choose to prepare a solid waste management plan to "appoint a planning committee to assist the agency designated to prepare the plan under section 11533." Section 11534(2) of the Natural Resources and Environmental Protection Act dictates the composition of the planning committee as follows:

According to the information you provided, the township supervisor in question was originally appointed to represent his township on the planning committee. Most recently he has been reappointed to fill one of the general public seats on the planning committee.

The language of section 11534(2) of the Natural Resources and Environmental Protection Act suggests that a public official cannot serve in one of the general public seats. The Legislature has prescribed a specific composition for solid waste management planning committees, distinguishing between specified public officials and members of the general public. Clearly, the Legislature intended that members of the committee would represent different interests. Thus, allowing public officials to serve in the positions reserved for members of the general public would be contrary to legislative intent, since public officials would not necessarily be able to separate the interests of their offices from their interests as private citizens. This result helps effectuate the legislative purpose of having a balance of interests represented on solid waste management planning committees.

Next we turn to the definition of general public found in the administrative rules that implement section 11534(2) of the Natural Resources and Environmental Protection Act. Section 90101(1) of that act repealed the Solid Waste Management Act, 1978 PA 641, and codified its provisions in the Natural Resources and Environmental Protection Act. Section 11534(2) of that statute is identical to section 26(2) of the Solid Waste Management Act. The Department of Natural Resources (DNR) promulgated administrative rules under the authority conferred by the Solid Waste Management Act. Under section 105 of the Natural Resources and Environmental Protection Act, these rules are still valid. The DNR has defined general public at 1993 AACS, R 299.4103(e) as follows:

Agencies have the authority to interpret the statutes that they are bound to administer and enforce, and rules adopted in accordance with the Administrative Procedures Act of 1969, MCL 24.201 et seq; MSA 3.560(101) et seq, have the force and effect of law. Clonlara, Inc v State Bd of Education, 442 Mich 230, 239; 501 NW2d 8S (1993). Thus, R 299.4103(e) has the force and effect of law, and persons serving on a county solid waste management planning committee as representatives of the general public must be private citizens.

Accordingly, we must determine whether the township supervisor is a private citizen, despite his status as a public official. Admittedly, public officials actually operate in dual capacities, being "at all times,...both public persons and private citizens." Wright v DeArmond, 977 F2d 339, 346 (7th Cir, 1992) , cert den ___ US ___; 113 S Ct 1945; 123 L Ed 2d 651 (1993). The Michigan Court of Appeals recognized that a public official may, at times, act purely in a private capacity. Killeen v Wayne County Civil Service Comm'n, 108 Mich App 14, 21; 310 NW2d 257 (1981). On the other hand, Black's Law Dictionary defines private person as a "[t]erm sometimes used to refer to persons other than those holding public office or in military services." Black's Law Dictionary, Abridged Fifth Edition (1983).

The DNR's specific use of the word private in defining general public suggests that, in this context, private citizens means persons not holding public office. Otherwise, the DNR could have simply omitted the word private from the definition of general public in R 299.4103(e), so that general public would mean "citizens who are unlikely to incur a financial gain or loss greater than that of an average homeowner, taxpayer, or consumer as a result of any action taken by a planning committee." If we interpret private citizens as including public officials, the word private becomes surplusage. The rules of statutory construction apply to administrative rules just as they do to statutes. Detroit Base Coalition for the Human Rights of the Handicapped v Dep't of Social Services, 431 Mich 172, 185; 428 NW2d 335 (1988). Statutes must be read so as to avoid rendering any word or phrase surplusage or nugatory. Detroit City Council v Detroit Mayor, 202 Mich App 353, 358; 509 NW2d 797 (1993), lv gtd 448 Mich 851; 528 NW2d 729 (1995). Accordingly, R 299.4103(e) must be read so as to avoid rendering the word private surplusage or nugatory.

This office addressed a similar issue in a Letter Opinion of the Attorney General to Representative Gary M. Owen, dated November 16, 1979. That opinion considered a provision of the Mental Health Code which provided for the composition of a county community mental health board, and which specified that the board must consist of representatives of providers of mental health services, recipients or consumers of mental health services, agencies and occupations having a working involvement with mental health service, and the general public. While the provision did not specify any fixed proportion for the representatives of various interests, it did specify that no more than half of the total board members may be state, county, or local public officials. Representative Owen asked whether, when a person appointed to serve on the board as a representative of the private sector subsequently accepts a position as a public official, the appointing authority could appoint another public official to the board, even if that appointment would result in a board where over one-half of the members were public officials. Rather than simply concluding that the appointing authority could not appoint another public official, the opinion concluded that a person appointed to serve as a representative of the private sector who subsequently accepts a position as a public official is no longer qualified to serve as a representative of the private sector, and must vacate that position. Following the reasoning in that opinion, a township official is not qualified to serve in a position reserved for a representative of the general public on a solid waste management planning committee.

It is my opinion, therefore, that a township supervisor may not serve on a countywide solid waste management planning committee as a representative of the general public.

Frank J. Kelley

Attorney General