STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6859

July 18, 1995

INCOMPATIBILITY:

Township trustee and clerical employee of a district court

The positions of township trustee and clerical employee of a district court in a district of the third class are incompatible and may not be held simultaneously by the same person.

Honorable David N. Galloway

State Representative

The Capitol

Lansing, Michigan 48913

You have asked if the positions of township trustee and clerical employee of a district court in a district of the third class are compatible and may be held simultaneously by the same person.

According to information provided by your office, the person in question is a member of both the Waterford Township Board and a clerical employee of the 51st District Court. Under section 8123(9) of the Revised Judicature Act of 1961 (RJA), MCL 600.101 et seq; MSA 27A.101 et seq, the 51st district is a district of the third class, consisting solely of Waterford Township. Section 8103(3) of the RJA specifies that "each political subdivision comprising ... [a district of the third class] is responsible for maintaining, financing and Operating the district court within its respective political subdivision." Similarly, section 8104 of the RJA specifies that a city or township within a district of the third class constitutes the "district control unit," which is "responsible for maintaining, financing and operating the court only within its political subdivision." Section 8271(1) of the RJA gives the judges of the district court authority to appoint the employees of the court, and to "fix their compensation within appropriations provided by the governing body of each district control unit," while section 8271(2) of the RJA specifies that each district control unit shall pay the compensation of district court employees.

Since the 51st district consists solely of Waterford Township, the township is the only district control unit in the district, and thus is the sole authority responsible for financing the court and paying the compensation of court employees According to information provided by one of your constituents, who also sits on the Waterford Township Board, the board makes line item appropriations in determining the district court's budget, including a line item appropriation for compensation of court personnel. Your constituent informs us that while the line item appropriation is a lump sum covering all salaries, the township board is aware of the specific salaries that each employee will receive and the board has, in the past, met with the court administrator to discuss which employees will need raises and has adjusted the budget accordingly.

The Legislature addressed incompatibility of public offices in 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(12I) 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."

This office has repeatedly concluded that two public positions are incompatible under 1978 PA 566 when one position establishes compensation for the other, since this is an element of supervision and subordination. See, e.g., OAG, 1991-1992, No 6713, p 132 (February 24, 1992). In this instance, however, the Waterford Township Board does not have authority to establish the compensation for the position of clerical employee at the district court, even though the board makes a line item appropriation for salaries as a whole based on the specific salaries to be paid to court personnel. Section 8271(1) of the RJA allows district court judges to fix the compensation for court personnel at any level "within the overall limits of funds appropriated by the district control unit," even if this amount surpasses a specific line item appropriation designated by the district control unit. (Emphasis added.) Judges of the 74th Judicial Dist v Bay County, 385 Mich 710, 726-727; 190 NW2d 219 (1971). See also, Branch County Bd of Comm'rs v Service Employees International Union, Local 586, 168 Mich App 340, 349; 423 NW2d 658 (1988). Thus, the township board does not have actual control over the amount of salary paid to court employees, and the position of clerical employee of the court is not subordinate to that of township trustee.

Nonetheless, the dual holding of these positions may still result in a breach of duty rendering the positions incompatible under section 1(b) (iii) of 1978 PA 566. A breach of duty occurs when the dual holding of two public positions prevents a person from protecting, advancing, or promoting the interests of either position. OAG 1987-1988, No 6418, pp 15, 17 (January 13, 1987); OAG 1979-1980, No 5626, pp 537,543 (January 16, 1980).

A township trustee owes a fiduciary duty to the township, as explained by the Michigan Supreme Court in People v Hirschfield, 271 Mich 20, 25; 260 NW 106 (1935), quoting from Hornung v State, ex rel Gamble, 116 Ind 458, 462; 19 NE 151 (1888):

Since the township trustee in question must vote on appropriations for the district court that could impact the trustee's salary as a clerical employee of the court, the trustee's duties will conflict with the trustee's interests as an employee of the court, diminishing the ability to protect, advance or promote the interest of the office of township board member. This conflict is unavoidable regardless of the good faith of the trustee. Thus, given the statutory requirement that a township board in a judicial district of the third class finance the operation of the district court, which includes appropriating the funds for the salaries of court employees, the positions of township trustee and district court employee are inherently incompatible in a district of the third class.

The trustee cannot remedy this incompatibility by abstaining from any board actions on the district court budget, since abstention itself constitutes a breach of duty. Rather, the person in question can only remedy this incompatibility by vacating one of the two positions. Wayne County Prosecutor v Kinney, 184 Mich App 681, 684-685; 458 NW2d 674, lv den 436 Mich 887 (1990); Contesti v Attorney General, 164 Mich App 271, 281; 416 NW2d 410, lv den 430 Mich 893 (1987).

It is my opinion, therefore, that the positions of township trustee and clerical employee of a district court in a district of the third class are incompatible and may not be held simultaneously by the same person.

Frank J. Kelley

Attorney General