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

MIKE COX, ATTORNEY GENERAL

INCOMPATIBILITY:

PUBLIC OFFICES & OFFICERS:

Incompatibility of offices of deputy county treasurer and township treasurer

The offices of deputy county treasurer and treasurer of a township within the same county are incompatible.

Opinion No. 7198

January 29, 2007

Honorable Kevin A. Elsenheimer
State Representative
State Capitol
Lansing, MI 48909

You have asked whether the offices of deputy county treasurer and treasurer of a township within the same county are incompatible.

The Incompatible Public Offices Act, 1978 PA 566 (Act), MCL 15.181 et seq, addresses the simultaneous holding of two or more public offices. Section 2 of the Act, MCL 15.182, prohibits public officers and employees from holding two or more "incompatible offices" at the same time.

The Act defines "incompatible offices" as:

[P]ublic 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. [MCL 15.181(b).]

The Act comprehends within its prohibitions not only public officers, but also public employees. Macomb County Prosecuting Attorney v Murphy, 464 Mich 149; 627 NW 247 (2001). Each of the positions about which you inquire are public offices, the holders of which are public officers.

The position of county treasurer is an elective county office whose duties and powers are provided by law. Const 1963, art 7, § 4. A county treasurer's statutory duties include receiving and accounting for all county funds. MCL 48.40. Each county treasurer "shall appoint a deputy [county treasurer]," who in case of the absence or disability of the county treasurer, or in cases of a vacancy, performs all of the duties of the county treasurer.1 MCL 48.37. In exercising deputed powers, the deputy, like the county treasurer, is a county official.

The position of township treasurer is an elective township office whose powers and duties are provided by law. Const 1963, art 7, § 18. These duties include receiving and accounting for all money belonging to the township. MCL 41.76. In addition, the township treasurer is responsible for collecting and accounting for all ad valorem property taxes assessed against taxable property in the township for state, county, township, and other public entities under the General Property Tax Act, 1893 PA 206, MCL 211.1 et seq. This act details the respective duties and responsibilities of county and township offices, including their treasurers, with respect to the imposition and collection of ad valorem property taxes for county, state, and township purposes. Your question may be answered by examining provisions of the General Property Tax Act that are material to the interaction of these officers to determine whether one of the offices is subordinate to the other or supervises the other.

The process of assessing, collecting, and enforcing property taxes is an annual one. The township clerk, on or before September 30, delivers to the township supervisor and county clerk a statement of the aggregate amount of all taxes to be raised in the township for township, school, highway, drain, and all other purposes. The statement and supporting papers are submitted by the county clerk to the county board of commissioners. MCL 211.36.

Under section 37 of the General Property Tax Act, the county board of commissioners at its annual meeting held in October: 1) determines the amount of money to be raised for county purposes and apportions that amount among the townships; 2) examines each township's statement and certification of taxes to be raised in the township for township, school, highway, drain, and other purposes and entertains objections and authorizes and requires defects and omissions to be "corrected" or "supplied"; and 3) "direct[s] that the money proposed to be raised for township, school, highway, drain, and all other purposes as authorized by law, shall be spread upon the assessment roll of the proper townships." MCL 211.37. Section 37 further provides:

This action and direction shall be entered in full upon the records of the proceedings of the board, and shall be final as to the levy and assessment of all the taxes, except if there is a change made in the equalization of any county by the state tax commission upon appeal in the manner provided by law. The direction for spread of taxes shall be expressed in terms of millages to be spread against the taxable values of properties and shall not direct the raising of any specific amount of money. [MCL 211.37.]

The clerk of the board of commissioners, immediately after the board's apportionment actions, issues certificates to the county treasurer and to each township's supervisor "showing the millages apportioned to each township for state, county and the various township purposes, each tax being kept distinct." MCL 211.38.

The township assessing officer then completes the assessment roll. The appropriate assessing officer in each local tax collecting unit "shall assess the taxes apportioned to that local tax collecting unit according to the taxable values entered in the assessment roll of that local tax collecting unit for the year." MCL 211.39. Before the supervisor or assessing officer delivers the roll to the township treasurer, "he or she shall carefully foot [total] the several columns of valuation and taxes, and make a detailed statement, which he or she shall give the clerk of his or her township . . . and the clerk shall immediately charge the amount of taxes to the township treasurer." MCL 211.41.

Section 42 of the General Property Tax Act further specifies the duties of the township treasurer. The township supervisor "shall prepare a tax roll, with the taxes levied as provided in this act, and annex to the roll a warrant signed by him or her, commanding the township . . . treasurer" to: 1) collect the several sums mentioned in the last column of the roll; 2) retain the amount receivable by law into the township treasury for the purposes therein specified; 3) pay over as provided in section 43 to the county treasurer the amounts that are collected for state and county purposes; and 4) account in full for all money received on or before the next following March 1. MCL 211.42.

Section 43(2) requires that the township treasurer be properly bonded with sufficient sureties approved by the county treasurer:

The treasurer . . . on or before the third day immediately preceding the day the taxes to be collected become a lien, shall give to the county treasurer a bond running to the county in the actual amount of state, county, and school taxes . . . with sufficient sureties to be approved by the supervisor of the township and the county treasurer, conditioned that he or she will pay over to the county treasurer as required by law all state and county taxes, pay over to the respective school treasurers all school taxes that he or she collects during each year of his or her term of office, and duly and faithfully perform all the other duties of the office of treasurer. [MCL 211.43(2).]

Upon receipt of the tax roll, the township treasurer shall proceed to collect the taxes. MCL 211.44. All taxes are to be collected before the first day of March each year. MCL 211.45.

Section 43 of the General Property Tax Act details the respective duties of county and township treasurers with respect to the collection of taxes paid timely or returned delinquent, and the accounting each local treasurer must make to the county treasurer, among others. Subsection 43(3)(a) and (b) provides:

(a) Within 10 business days after the first and fifteenth day of each month, the township or city treasurer shall account for and deliver to the county treasurer the total amount of state and county tax collections on hand on the first and fifteenth day of each month; to the school district treasurers the total amount of school tax collections on hand on the first and fifteenth day of each month; and to the public transportation authorities the total amount of public transportation authority tax collections on hand the first and fifteenth day of each month. If the intermediate school district and community college district provide for direct payment pursuant to subsection (9), the township or city treasurer shall also account for and deliver to the intermediate school district and the community college district the total respective amounts of school tax collections on hand the first and fifteenth day of each month. This subdivision shall not apply to the month of March.

(b) Within 10 business days after the last day of February, the township or city treasurer shall account for and deliver to the county treasurer at least 90% of the total amount of state and county tax collections on hand on the last day of February; to the school district treasurers at least 90% of the total amount of school tax collections on hand on the last day of February; and to the public transportation authorities at least 90% of the total amount of public transportation authority tax collections on hand on the last day of February. If the intermediate school district and community college district provide for direct payment pursuant to subsection (9), the township or city treasurer shall also account for and deliver to the intermediate school district and community college district at least 90% of the total respective amounts of school tax collections on hand on the last day of February. [MCL 211.43(3)(a) and (b).]

Section 54 of the General Property Tax Act requires township treasurers to pay the county treasurer the state and county taxes collected and account for unpaid taxes:

Within 20 calendar days after the time specified in his warrant, the township treasurer or other collecting officer shall pay to the county treasurer all state and county taxes collected, and within the same time shall make his statement of unpaid taxes upon real and personal property as required in section 55. [MCL 211.54.]

If taxes are not paid by February 15, they are "returned delinquent" from the township to the county. Payment of the "returned" delinquent taxes is, therefore, made to the county treasurer. The county treasurer must assure himself or herself that a township treasurer has properly accounted for all sums collected on property subject to ad valorem taxes and properly reported all property taxes remaining delinquent. MCL 211.55. With respect to the return of delinquent taxes made by the township treasurer to the county treasurer, section 55 provides in part:

The county treasurer shall immediately compare the affidavits of the tax collecting officer with regard to the taxes collected and taxes remaining unpaid with the tax roll. [MCL 211.55.]

Only if the returns are correct are the township treasurer and the treasurer’s sureties released from their bond. MCL 211.56.

Each treasurer collects taxes on behalf of the county as well as all local taxing units within the township. Under the statutory provisions detailed above, each treasurer has a fiduciary responsibility to each of those taxing units.

The activities and relationships discussed above make the township treasurer subordinate to the county treasurer in collecting county and state taxes; the county treasurer is given specified supervisory responsibilities over the township treasurer's performance of tax collecting duties.

In OAG, 1987-1988, No 6418, p 15 (January 13, 1987), the Attorney General addressed the incompatibility of the offices of county commissioner and city treasurer, under the same provisions of the General Property Tax Act:

It is the responsibility of the city treasurer each year to collect all taxes on real and personal property located in the city which are due to the county. MCL 211.54; MSA 7.98, provides:

"Within 20 calendar days after the time specified in his warrant, the township treasurer or other collecting officer shall pay to the county treasurer all state and county taxes collected, and within the same time shall make his statement of unpaid taxes upon real and personal property as required in section 55."

The city treasurer is required to post a bond satisfactory to the county treasurer. MCL 211.43(2); MSA 7.84(2). If the city treasurer fails to pay to the county all taxes collected which are due to the county, the city may be held liable for the deficiency. Ottawa County v City of Holland, 269 Mich 192; 256 NW 851 (1934). The supervisory relationship between the city treasurer and the county treasurer on the annual settlement day is summarized in VerBurg, Managing the Modern Michigan Township (MSU, 1981), p 83. While that summary refers only to township treasurers, it is equally applicable to city treasurers in view of MCL 211.87 and 211.107(1); MSA 7.141 and 7.161(1). VerBurg states:

"Settlement day is the time when township treasurers deliver a final report of collections for the season. The day is supposed to occur between March 1 and March 30, although it sometimes extends beyond that date. The process is largely one in which the township and county treasurers determine the balance owed to the county at that time. Generally, this will include the final distribution of regular collections and those received after March 1. The settlement will also involve a review of taxes being returned delinquent. The county treasurer then assumes responsibility for collecting taxes on real property.

"Township treasurers may be somewhat intimidated with the matter of settlement; in effect, it is a kind of review of one's work by an outsider."

Thus, the city treasurer is, in effect, the county's agent in collecting the county's taxes on property located in the city, subject to the supervision of the county through the county treasurer and generally through the county board of commissioners. The overall responsibility of the county board of commissioners as to county business is set forth in MCL 46.11(p); MSA 5.331(p), which empowers the board to represent the county and to have the care and management of the property and business of the county if other provisions are not made. The supervision by the county of the city treasurer's collection activities is necessary to verify that all applicable county taxes are collected by the city treasurer and are transferred to the county.

It is my opinion, therefore, that county supervision of the city treasurer pertaining to the collection of county taxes by the city treasurer necessitates the conclusion that simultaneous holding of the offices of city treasurer and member of the county board of commissioners would be contrary to the prohibition against occupying incompatible offices in MCL 15.182; MSA 15.1120(122).

While the offices of county treasurer and township treasurer are clearly incompatible, the question here is whether that incompatibility extends to the office of deputy county treasurer.

MCL 48.37 requires that each county treasurer shall appoint "a" deputy who, in the absence of the treasurer from the office, is competent to perform all the duties of the office of treasurer. A person unable to perform all the duties of the office due to holding what would be an incompatible office would not be qualified for the appointment.

The collection of taxes assessed under the GPTA is a continuous activity. At all times, the county and township are involved in the collection of both delinquent and non-delinquent taxes. That activity extends beyond the activities discussed above through the ultimate forfeiture and foreclosure of properties for which taxes have not been paid. In most counties, the county treasurer is the foreclosing governmental unit. MCL 211.78. No month goes by that does not call for an accounting between each unit. The deputy county treasurer is required by law to be included in the tax collection process when the county treasurer is not available to perform the duties of the treasurer and, in general, assists the county treasurer in discharging all of the duties of that office. OAG, 1975-1976, No 4971, pp 411, 413 (April 20, 1976), recognized that a deputy county treasurer is subject to the same legislation as is applicable to the county treasurer. Accordingly, the incompatibility of the offices of county treasurer and township treasurer extends as well to the deputy county treasurer as well as to the county treasurer.

It is my opinion, therefore, that the offices of deputy county treasurer and treasurer of a township within the same county are incompatible.

MIKE COX
Attorney General

1In counties having a population in excess of 50,000, deputies may be appointed, each of whom "may perform all the official acts" which county treasurers "might legally" do.  MCL 45.41.  In counties having a population in excess of 500,000, a chief deputy treasurer may be appointed.  MCL 45.51.