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

INCOMPATIBILITY:

Simultaneous employment of a village trustee by the village

A village trustee in a village with a population less than 25,000 may simultaneously be employed by the village to perform services that are unrelated to and not in furtherance of his or her duty as trustee if duly authorized by the village council.


Opinion No. 6932

February 26, 1997


James L. Talaske
Prosecuting Attorney
Osceola County
410 West Upton Avenue
Reed City, Michigan 49677


You have asked whether a village trustee may simultaneously be employed by the village, in light of three different statutes: (1) Chapter IV, section 21 of 1895 PA 3, MCL 64.21; MSA 5.1263, which deals with compensation of village officers, (2) the incompatible public offices act, 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, and (3) the statute governing political activities by public employees, 1976 PA 169, MCL 15.401 et seq; MSA 4.1702(1) et seq.

According to the information provided with your request, the village trustee in question is also employed by the village to mow grass and perform various other tasks. The village council compensates the trustee for the performance of these tasks upon his submission of statements regarding the amount owed to him. The village in question has a population of less than 400 persons.

The first statute with which you are concerned, MCL 64.21; MSA 5.1263, addresses the compensation of village officers and reads as follows:

The president and each trustee shall receive compensation for the performance of the duties of the office of president or trustee only as provided by ordinance. The ordinance shall specify the manner and method that the compensation is due and payable. Said officers shall receive no other compensation for services performed for and on behalf of said village during their term of office. Except as otherwise provided in this act or by other law regulating fees for services, other officers shall receive such compensation as may be prescribed by the council.

(emphasis added).

The purpose of this section, as noted by the emphasized language in the first sentence, is the setting of compensation for performing the "duties of . . . trustee." Thus, while the emphasized language in the second sentence prohibits the receipt of other compensation for any services performed for the village during the term of office, it must be read in light of this purpose and as prohibiting only additional compensation for services relating to the fulfillment of the duties of trustee. This is especially true since the prohibition refers not to employees generally, but only to services performed by "[s]aid officers" - i.e., services related to their official capacity as trustees.

The history of MCL 64.21; MSA 5.1263, supports this interpretation. The Legislature rewrote this section through 1992 PA 42. Prior to this amendment, this section read, in pertinent part, as follows:

The president and trustees shall each receive such sum as shall be fixed by ordinance for each regular meeting of the village council by them respectively attended during their term of office . . . . Said officers shall receive no other compensation for services performed for and on behalf of said village during their term of office: Provided, That in no case shall such president or any trustee receive compensation for any meetings not actually attended.

Thus, at one time, this section required that village trustees be compensated only for each meeting they attended. In this context, the prohibitory sentence appears to prohibit trustees from receiving compensation for their services other than the sum paid for each meeting attended. Thus, the focus of the prohibitory sentence was on compensation received for duties as trustees, and not for services performed in other capacities.

1992 PA 42 amended this section to allow each village to decide how to compensate its trustees, establishing the method of compensation by ordinance. There is no reason to assume, however, that the Legislature intended that this prohibitory sentence have a different meaning in the revised version of this section.

This interpretation of the statute is also consistent with and statutorily implements the general rule that an official salary is not dependent on the amount of work done but belongs to the office itself without regard to the officer. Hawkins v Voisine, 292 Mich 357, 359; 290 NW 827 (1940).

Thus, the statute prohibits a village president or trustee from receiving additional compensation for any services rendered in furtherance of his or her duties as trustee, such as attending other governmental meetings or seminars or providing legal, financial or other consultation in respect to matters to be decided by the village council. This assures that a council person cannot engage in self-dealing or expand the compensable duties of the office thereby receiving compensation in excess of the amount the public understood he or she was to receive, regardless of the time, expertise or skills provided by the trustee in furtherance of the duties of the office.

If, however, a trustee also performs a separate job in village government wholly unrelated to fulfilling the duties of trustee, such as mowing the lawn, performance of these additional services could not arguably have been expected by the public to be included in the office to which he or she was elected. Moreover, the extent and value of these distinct services is ascertainable by the public and council alike and must be approved by the council as it would for any other village employee.

Accordingly, MCL 64.21; MSA 5.1263, only prohibits a village trustee from receiving additional compensation for any services related to or in furtherance of the performance of his or her official duties as a village trustee.

Next, we address the incompatible public office act, 1978 PA 566. Section 2 of the incompatible public offices act 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." Section 1(b) of 1978 PA 566 defines "incompatible offices" as follows:

"Incompatible offices" means public 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.

Offices are incompatible under section 1(b)(i) and (ii) when one office sets and approves the compensation for the other. OAG, 1991-1992, No 6713, p 132 (February 24, 1992). Thus, the offices at issue here fall within the definition of "incompatible offices" found in section 1(b) of the statute.

Nonetheless, the prohibition on holding incompatible offices is not absolute. As noted above, the prohibition on holding incompatible offices found in section 2 is qualified by the statement "[e]xcept as provided in section 3 . . . ." Section 3(4)(c) of the incompatible public offices act was added to the act through 1992 PA 10, and reads, in pertinent part, as follows:

(4) Section 2 does not do any of the following:

* * *

(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.

Thus, with the approval of the village council, a village trustee can be employed by the village without violating the incompatible public offices act.

It is still necessary, however, to reconcile the exception created in section 3(4)(c) of the incompatible public offices act with section 3(2) of the political activities by public employees statute, 1976 PA 169, which prohibits elected officials from being employed by the village and which does not contain an exception for villages with a population under 25,000. Section 3(2) of the statute governing political activities of public employees states as follows:

[A] public employee of a unit of local government or school district who is elected to an office within that unit of local government or school district shall resign or may be granted a leave of absence from his employment during his elected term.

Section 3(2) applies not only to public employees seeking elected office, but to elected officials seeking employment with the unit of government that they serve. OAG, 1987-1988, No 6443, p 104 (June 8, 1987). Village trustees are elected officials. MCL 62.1; MSA 5.1215. Accordingly, OAG, 1987-1988, No 6443, concluded that section 3(2) prohibits a member of the village council from being employed by the village. See also, Letter Opinion of the Attorney General (Representative Edward E. Mahalak, August 1, 1984).

Research has failed to reveal any authority construing the effect of section 3(4) of the incompatible public offices act on section 3(2) of the political activities statute. This office has held, however, that section 3(4)(c) of the incompatible public offices act creates an exception to section 30a(1) of 1851 PA 156, MCL 46.30a; MSA 5.353(1), which prohibits members of the county board of commissioners from accepting appointments or employment with the county. OAG, 1995-1996, No 6913, p __ (August 19, 1996); OAG, 1993-1994, No 6748, p 7 (February 2, 1993); OAG, 1991-1992, No 6730, p 175 (September 4, 1992). These opinions relied primarily on the fact that the general prohibition found in section 30a(1) of 1851 PA 156 is qualified by the phrase "except as otherwise provided by law." Each of the three opinions concluded that section 3(4)(c) of the incompatible public offices act fell within this exception. Section 3(2) of the political activities statute, however, contains no language similar to the "except as otherwise provided by law" language of 1851 PA 156, section 30a(1). Thus, it is necessary to apply the rules of statutory construction to determine which statute controls in this situation.

Statutes are in pari materia when they relate to the same class of persons or things or have the same purpose or object. Richardson v Jackson County, 432 Mich 377, 384; 443 NW2d 105 (1989). Both statutes at issue apply to village trustees employed by the village and so, to this extent, are in pari materia. When statutes are in pari materia, they should be construed harmoniously, if at all possible, so as to give reasonable effect to each. House Speaker v State Administrative Bd, 441 Mich 547, 568; 495 NW2d 539 (1993). Repeals by implication are not favored, and the courts will not construe one statute to have impliedly repealed another when there is any other reasonable construction. Id. at 562. The courts have inferred repeals, however, when a subsequent legislative act clearly conflicts with a prior act, or when a subsequent act is clearly intended to occupy the entire field covered by a prior act. Id. at 563. In such an instance, the earlier statute is deemed to have been repealed to the extent of the conflict. Shirilla v Detroit, 208 Mich App 434, 439-440; 528 NW2d 763 (1995).

Unfortunately, it is not possible to construe section 3(4)(c) of the incompatible public offices act harmoniously with section 3(2) of the political activities by public employees statute. These statutes undeniably conflict, since section 3(4)(c) allows a village trustee in a village with a population under 25,000 to be employed by the village, while section 3(2) of the political activities by public employees statute forbids such an arrangement. As a general rule, a more recent enactment will prevail over an earlier enactment. In re Americana Foundation, 145 Mich App 735, 741; 378 NW2d 586 (1985), lv den 425 Mich 867; 387 NW2d 387 (1986). Section 3(4)(c) of the incompatible public offices act is a more recent enactment than section 3(2) of the political activities by public employees statute and so should be construed to supersede section 3(2) to the extent that they are inconsistent.

Such a construction also furthers the Legislature's intent in enacting section 3(4)(c) of the incompatible public offices act. 1992 PA 10 originated as House Bill 4263. As explained in Senate Legislative Analysis, HB 42621 and HB 4263, February 13, 1992, these bills were "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." This purpose is best fulfilled if section 3(4)(c) is construed to supersede contradictory statutes. Accordingly, a village trustee in a village with a population under 25,000 can perform other services for the village without violating section 3(2) of the political activities by public employees statute.

Finally, if MCL 64.21; MSA 5.1263, were read to prohibit a village from employing and paying a village trustee for services performed in another capacity in villages under 25,000, then we would have the anomalous result that cities, townships and counties under 25,000 could authorize their public officers to perform other services for compensation but small villages could not. That would certainly frustrate the purpose of adding section 3(4)(c) to the incompatible public offices act so that small units of government could employ and pay their public officers for other services, since villages are generally the smallest of the four units of government in population.

It is my opinion, therefore, that a village trustee in a village with a population less than 25,000 may simultaneously be employed by the village to perform services that are unrelated to and not in furtherance of his or her duty as trustee if duly authorized by the village council.



FRANK J. KELLEY
Attorney General

1 House Bill 4262 was a companion bill to House Bill 4263. House Bill 4262, as 1992 PA 9, added language mirroring section 3(4)(c) of the incompatible offices act to the statute governing contracts between public servants and the public entities they serve, 1968 PA 317, MCL 15.321 et seq; MSA 4.1700(51) et seq.