STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6857

July 6, 1995

INCOMPATIBILITY:

Simultaneously serving as county equalization director and county register of deeds

A person may simultaneously serve as county equalization director and county register of deeds.

Honorable Pat Gagliardi

State Representative

The Capitol

Lansing, Michigan

You have asked if a person may simultaneously serve as county equalization director and county register of deeds. According to the information you supplied, in the county in question the county equalization director was appointed to fill a vacancy in the position of register of deeds. ⁽¹⁾

The Legislature addressed incompatibility of public offices in 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq. Section 1(b) of 1978 PA 566 defines incompatible offices as follows:

Section 2 of 1978 PA 566 states that "[e]xcept as provided in section 3, a public officer or public employee shall not hold 2 or more incompatible offices at the same time." In order to determine whether 1978 PA 566 prohibits the simultaneous holding of the positions of county equalization director and county register of deeds, we must examine the duties of the two positions.

The county equalization director is appointed by the county board of commissioners. MCL 211.34(3); MSA 7.52(3). The director supervises and controls the county equalization department, which "survey[s] assessments and assist[s] the board of commissioners in the matter of equalization of [property tax] assessments." Id. In addition, the equalization department may assist local assessing officers in the performance of duties imposed upon those officers by the General Property Tax Act, MCL 211.1 et seq; MSA 7.1 et seq, "including the development and maintenance of accurate property descriptions, the discovery, listing, and valuation of properties for tax purposes, and the development and use of uniform valuation standards and techniques for the assessment of property." Id.

Const 1963, art 7, Sec. 4, provides for the position of register of deeds:

A county register of deeds is responsible for keeping books and records and recording such instruments required or authorized by law to be recorded, and must provide reasonable facilities for inspection of these records. ⁽³⁾ The register of deeds has autonomy in the performance of the statutorily conferred duty to provide for the inspection of records and the decisions of the county register of deeds in this area are reviewable only by the courts. Washtenaw Abstract Co v Mayer, 347 Mich 228, 233-234; 79 NW2d 480 (1956).

Neither of these two positions supervises the other, nor is either position subordinate to the other. Moreover, there is no indication that performance of either position would result in a breach of duty in the other position. A breach of duty occurs when the simultaneous performance of the duties of two offices results in a failure to protect, advance, or promote the interests of one of the offices. OAG, 1989-1990, No 6637, p 125 (June 1, 1989). Since the positions of equalization director and register of deeds involve separate duties and responsibilities, it is highly unlikely that the performance of either position would result in a failure to protect, advance or promote the interests of the other office. Moreover, 1978 PA 566 changed the common law, under which the potential for a breach of duty was sufficient to render two positions incompatible, so that an incompatibility arises under section 1(b)(iii) of 1978 PA 566 only when a breach of duty actually results from performance of the duties of public office. Contesti v Attorney General, 164 Mich App 271, 279-280; 416 NW2d 410 (1987), lv den 430 Mich 893 (1988); OAG, 1979-1980, No 5626, p 537, 542 (January 16, 1980). Thus, in the absence of any situation involving both offices which actually results in a breach of duty of either of the two offices, 1978 PA 566 does not prohibit the simultaneous holding of the positions of county equalization director and register of deeds.

It should be noted that the register of deeds may not, under MCL 207.511(b); MSA 7.456(11)(b), and MCL 207.533(2); MSA 7.456(32)(2), use the purchase price information contained in affidavits filed in connection with recording deeds for the purpose of establishing the assessed valuation of taxable real property. But, under section 18 of the General Property Tax Act, MCL 211.18; MSA 7.18, the county equalization department may obtain the same purchase price information by requiring the owners of real property to submit written statements containing purchase price information. OAG, 1987-1988, No 6555, p 454 (December 21, 1988).

It is my opinion, therefore, that a person may simultaneously serve as county equalization director and county register of deeds.

Frank J. Kelley

Attorney General