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

Opinion No. 5119

February 16, 1977

VILLAGE CLERKS:

Appointment of council member to serve as a temporary village clerk

VILLAGE COUNCIL:

Appointment of council member to serve as a temporary village clerk

INCOMPATIBILITY:

Village clerk/member of village council

A village council may appoint one of its members to serve as temporary village clerk during periods of time that the village clerk is temporarily unable to carry out his duties or is temporarily absent.

A person may not simultaneously serve as a member of a village council and as the village clerk.

If the office of village clerk is vacated, the council must fill the vacancy by appointment of a person other than a member of the council.

Honorable Michael H. Conlin

State Representative

23rd District

House of Representatives

Lansing, Michigan 48901

Referring specifically to the Village of Dexter, you have asked for my opinion on how long a village may appoint one of its members to be a temporary village clerk.

The Village of Dexter is a 'general law village' operating pursuant to 1895 PA 3; MCLA 61.1 et seq; MSA 5.1201 et seq. 1895 PA 3, supra, Ch IV, Sec. 5 provides in relevant part:

'. . . In case of the absence of the clerk, or if from any cause he shall be unable to discharge, or be disqualified from performing the duties required of him, then the council may appoint one [1] of their own number or some other person, to perform the duties of the clerk for the time being. . . .'

1895 PA 3, supra, Ch II, Sec. 13 provides in relevant part:

'Any vacancy occurring in the office of president, trustees or any other elective office shall be filled by appointment by the council, and such appointee shall hold his office until the next annual election thereafter . . .'

1895 PA 3, Ch II, Sec. 13, supra, further provides for the election of the clerk. A vacancy can occur either by resignation (1895 PA 3, Ch II, supra, Sec. 10), abandonment of residency (1895 PA 3, Ch II, supra, Sec. 11) or the declaration of council under specified circumstances (1895 PA 3, Ch II, supra, Sec. 12).

Reading these several sections together, it is evident that a village council may appoint one of its members to be temporary clerk only during periods of time in which the village clerk is temporarily unable to carry out his duties or is temporarily absent but has not vacated the office. The temporary clerk continues in office until the office of clerk is vacated, until the new clerk is elected or until the clerk resumes his duties. When for any reason the office of clerk becomes vacated, then the city council is obliged to fill the office by appointment.

Although 1895 PA 3, supra, provides that a council may appoint one of its members to be temporary clerk, thereby removing any question of incompatibility of office, the statute does not authorize the appointment of a councilman as village clerk. This ommission raises the question of incompatibility of office between a member of a village council and a village clerk.

The rule on incompatibility of office has been stated many times in opinions of the Attorney General as follows:

'Based upon the common law, it is the public policy of the state of Michigan that the same person may not simultaneously occupy two public offices where the nature of the duties of such offices renders it improper from considerations of public policy for one person to retain both. The test of incompatibility is described as the character and relationship of the two offices. There is incompatibility where one office is subordinate to another, subject in some degree to its supervisory power, or where the functions of the two offices are inherently inconsistent and repugnant, so that the same person may not occupy them simultaneously. When such incompatibility exists, acceptance of the second office vacates ipso facto the first office. Attorney General ex rel Moreland v Common Council of Detroit, 112 Mich 145 (1897); Weza v Auditor General, 297 Mich 686 (1941). See also OAGE 1963-1964, p 420; OAG 1959-1960, Vol 1, p 113; OAG 1957-1958, Vol 1, p 225; OAG 1955-1956, Vol 1, p 228.' OAG, 1967-1968, No 4620, p 278 (August 7, 1968).

An examination of the powers and responsibilities of the village clerk reveals that 1895 PA 3, Ch IV, supra, Sec. 8 provides:

'The clerk shall report to the council, whenever required, a detailed statement of the receipts, expenditures, and financial condition of the village, of the debts to be paid, and moneys necessary to meet the estimated expenses of the corporation, and shall perform such other duties pertaining to his office as the council may require.' [Emphasis supplied.]

It is apparent from the above passage that the village council does have a supervisory role over the activities of the village clerk, making the offices of village clerk and member of the village council incompatible.

In summary, it is my opinion that a village council may appoint one of its members to be temporary village clerk while the village clerk remains in office. Upon the vacation of the office of village clerk, the village council may not appoint a permanent village clerk for the remainder of the term who continues to serve as a member of the council.

Frank J. Kelley

Attorney General