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
JENNIFER M. GRANHOLM, ATTORNEY GENERAL
INCOMPATIBILITY:
Township planning commission member serving on county planning commission
The Incompatible Public Offices Act does not prohibit the same person from simultaneously serving as a member of a township planning commission created under the Municipal Planning Act and as a member of a county planning commission in the same county.
Opinion No. 7060
August 28, 2000
Honorable Ken Bradstreet
State Representative
The Capitol
Lansing, Michigan
You have asked whether the Incompatible Public Offices Act prohibits the same person from simultaneously serving as a member of a township planning commission created under the Municipal Planning Act and as a member of a county planning commission in the same county.
In the Incompatible Public Offices Act, 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, the Legislature has addressed the simultaneous holding of multiple public offices. Section 2 prohibits public officers and employees from simultaneously holding two or more incompatible offices. Section 1(b) 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.
An examination of the powers and duties of the two public offices in your question begins with the township planning commission. The township planning commission at issue was formed under the Municipal Planning Act, 1931 PA 285, MCL 125.31 et seq; MSA 5.2991 et seq. That Act authorizes a township planning commission to adopt a "master plan" for the municipality's physical development. Section 6. When the township planning commission adopts a "master plan," then streets, public areas, and public buildings or structures cannot be constructed in the township until first approved by the township planning commission. Section 8(3). The township planning commission's disapproval of construction may, however, be overruled by a vote of not less than two-thirds of the entire membership of the township board. Section 9.
Under the Municipal Planning Act, "all powers" granted to the township's "zoning commission" are automatically "transferred to the planning commission." Section 12. Thus, the township planning commission at issue has assumed the powers granted to the township zoning board. Under the Township Zoning Act, 1943 PA 184, MCL 125.271 et seq; MSA 5.2963(1) et seq, these powers include making the recommendations on a proposed township zoning ordinance, zoning map, or on amendments to either. Section 10. This section requires township planning commission recommendations to be submitted to the "county zoning commission" or "county planning commission" for that body's review and recommendation1. Submitting such matters to the county zoning commission is required, unless the "county board of commissioners" has, by resolution, waived the county review of township zoning ordinances (and zoning maps), and pertinent amendments. None of the county zoning commission duties set forth in the Township Zoning Act have any direct linkage to the planning commission of a township within the county.
In OAG, 1995-1996, No 6837, p 19 (February 23, 1995), the Attorney General concluded that a person cannot simultaneously serve as a member of a county planning commission and as a member of a township planning commission in that county, where the township planning commission was established under the Township Planning Act, 1959 PA 168, MCL 125.321 et seq; MSA 5.23(101) et seq. The rationale for this conclusion is that under the Township Planning Act, a township planning commission's responsibility to adopt a basic development plan for the township is subject to review and approval by the county planning commission. The opinion, therefore, concluded that there was a prohibited incompatibility because the member in question was in effect passing on his or her work as township planning commissioner when reviewing the plan for approval or disapproval as a county planning commissioner.
The situation involved in your question is distinguishable from that in OAG No 6837. In the current situation, a member of a township planning commission established under the Municipal Planning Act does not perform any functions that are subject to "approval" by the county planning commission. Instead, the township planning commission involved in your question need only submit its recommendations to the county planning commission for "review and recommendation." Thus, the county planning commission has a purely advisory role in reviewing zoning ordinance recommendations submitted by the township planning commission.
The county planning commission's advisory role in reviewing zoning ordinance recommendations from a township planning commission does not create a relationship in which the performance of the duties of both offices by the same person results in either the "subordination" of one of the offices to the other of the "supervision" of one of the offices by the other. Thus, a person simultaneously occupying both offices does not violate either section 1(b)(i) or section 1(b)(ii) of the Incompatible Public Offices Act.
The question remains whether the simultaneous holding of these offices nevertheless constitutes a "breach of duty of public office," prohibited by section 1(b)(iii) of the Incompatible Public Offices Act. Generally, a breach of duty occurs when the simultaneous holding of multiple public offices prevents the office holder from advancing or promoting the interests of both positions. In determining whether a breach of duty exists, the only relevant duty to examine among the duties of a county planning commission and a township planning commission is the responsibility of the county planning commission to review and make "recommendations" on zoning ordinance and zoning map provisions recommended by the township planning commission. In addressing a separate incompatibility inquiry, the Attorney General concluded that a public official does not breach a duty owed to either office where the role of the second body of which the person is a member is merely advisory to the ultimate decision-making body. OAG, 1999-2000, No 7033, p 65 (September 16, 1999).
It is my opinion, therefore, that the Incompatible Public Offices Act does not prohibit the same person from simultaneously serving as a member of a township planning commission created under the Municipal Planning Act and as a member of a county planning commission in the same county.
JENNIFER M. GRANHOLM
Attorney General
1 OAG, 1999-2000, No 7043, p 87 (February 24, 2000), discusses in detail the county review process for township ordinances.