STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6854

June 8, 1995

INCOMPATIBILITY:

Public positions of Hillsdale City Council member and member of the city's Board of Public Works

The positions of Hillsdale City Council member and member of the city's Board of Public Works are incompatible and may not be held simultaneously by the same person.

Honorable Michael E. Nye

State Representative

The Capitol

Lansing, Michigan

You have asked if a person may simultaneously hold the positions of Hillsdale City Council member and member of the city's Board of Public Works. In particular, you ask whether the simultaneous holding of these positions is prohibited by 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, which governs incompatible public offices.

Section 2 of 1978 PA 566 generally forbids public officers or employees from simultaneously holding two or more incompatible offices. Section 1(b) of 1978 PA 566 defines incompatible offices as follows:

An examination of the nature and duties of the positions of city council member and member of the Board of Public Works is necessary in order to determine whether either position is supervisory or subordinate to the other, or whether the dual holding of these positions results in a breach of duty, rendering the positions at issue incompatible.

Under the Hillsdale City Charter, the members of the Board of Public Works are appointed by the mayor, with the approval of the city council. Hillsdale Charter, section 13.4. The board is considered a department within the city government. Id., section 13.3. The board is entrusted with the responsibility for planning improvements of, additions to, extensions of, and the operation and maintenance of the public service works supplying water and electricity to the city. Id., section 13.6. The board makes an annual report to the city council, presenting an analysis of the status and needs of the public service works, and making recommendations regarding these works. Id. The city council then approves, modifies, or disapproves any improvements, additions, or extensions recommended by the board. Id. The report, as modified or approved by the council, then becomes the public service works program for that year. Id. The city council approves the board's budget proposal for each year, and any expenditures of the board not in the budget proposal must also be approved by the council, with limited exception. Id., section 13.7. The council also reviews the annual audit of the board. Id., section 13.10. Any purchase of water or electricity by the board may only be made with the consent of the city council. Id., section 13.11.

Clearly, under these circumstances, the office of member of the Board of Public Works is subordinate to and supervised by the office of member of the city council. The city council approves the appointment of board members, may approve or reject the recommendations of the board, approves the board's budget and expenditures, and reviews the annual audit of the board. Given these facts, the positions are incompatible under section 1(b)(i) and (ii) of 1978 PA 566. OAG, 1981-1982, No 6030, p 534 (January 21, 1982).

Abstaining from any matters before the city council involving the Board of Public Works will not allow the person in question to hold both positions, since abstention is itself a breach of duty in this context, resulting in incompatibility under section 1(b)(iii) of 1978 PA 566. Only vacation of one of the two public positions will suffice. Contesti v Attorney General, 164 Mich App 271, 280-281; 416 NW2d 410 (1987), lv den 430 Mich 893 (1988); Wayne County Prosecutor v Kinney, 184 Mich App 681, 684-685; 458 NW2d 674, lv den 436 Mich 887 (1990).

It is my opinion, therefore, that the positions of Hillsdale City Council member and member of the city's Board of Public Works are incompatible and may not be held simultaneously by the same person.

Frank J. Kelley

Attorney General