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. 5261

February 1, 1978

INCOMPATIBILITY:

Prosecuting attorney and municipal attorney of a municipality in same county.

PROSECUTING ATTORNEY:

Prosecuting attorney and municipal attorney of a municipality in same county.

MUNICIPAL ATTORNEY:

Prosecuting attorney and municipal attorney of a municipality in same county.

The offices of prosecuting attorney and municipal attorney of a municipality in the same county are incompatible.

Honorable Quincy Hoffman

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion as to whether the offices of prosecuting attorney and municipal attorney of a municipality in the same county are incompatible.

The office of county prosecutor is provided for by Const 1963, art 7, Sec. 4, which specifies that the duties and powers of the office shall be provided by law. These duties are set forth in various statutes, including 1846 RS 14, Sec. 53; MCLA 49.153; MSA 5.751, which states:

'The prosecuting attorneys shall, in their respective counties, appear for the state or county, and prosecute or defend in all the courts of the county, all prosecutions, suits, applications and motions, whether civil or criminal, in which the state or county may be a party or interested.'

Thus, a prosecuting attorney is charged with the responsibility of representing the people in all criminal actions before the courts in his county and, with the exception of counties which have appointed civil counsel, (1) he is charged with protecting the interests of the people of the county in civil matters as well.

The doctrine of incompatibility has been defined as the common law restriction against the same person concurrently holding two offices where one office is supervisory to the other or where the duties of such offices are incompatible for reasons of public policy. Attorney General, ex rel Moreland v Common Council of the City of Detroit, 112 Mich 145; 70 NW 450 (1897). It is the potential for conflict, not the actual conflict, that is controlling. See OAG, 1967-1968, p 318, 320 (June 3, 1968).

In my opinion a potential for conflict of interest is present where both entities served by the prosecuting attorney are empowered to contract with each other for such a contract would require him to represent both entities before a court and interpret the provisions of the contract when called upon to do so.

The Urban Cooperation Act of 1967, 1967 PA 7; MCLA 124.501 et seq; MSA 5.4088(1) et seq, authorizes public agencies, including counties and municipalities, to contract for the joint exercise of their powers and responsibilities.

Another statute which assigns responsibilities to the county prosecutor is the Open Meetings Act, 1976 PA 267; MCLA 15.261 et seq; MSA 4.1800(11) et seq. The Open Meetings Act provides in Secs. 10, 11 and 12 for actions to be brought by the prosecutor to invalidate actions taken in violation of the Open Meetings Act and further, to bring criminal charges against public officials who intentionally violate the act.

Since the legal advisor to a municipality may be called upon to advise city officials as to appropriate action under the Open Meetings Act, he would, in his capacity as prosecutor, be obligated to review these same activities. The prosecutor would thus be in a position of reviewing the action of persons who acted pursuant to his legal advice.

I am aware that OAG, 1939-1940, p 338 (November 28, 1939) held that there was no incompatibility between the office of prosecuting attorney and city attorney. At the time that opinion was issued, neither 1967 PA 7, supra, nor 1976 PA 267, supra, had been enacted, and that opinion is hereby superseded.

It is therefore my opinion that the position of county prosecutor is incompatible with the position of municipal attorney of a municipality located within the same county.

Frank J. Kelley

Attorney General

(1) 1941 PA 15; MCLA 49.71 et seq; MSA 5.824 et seq, authorizes the board of commissioners to employ an attorney to represent the county in civil matters whenever the board determines that the prosecuting attorney is unable to properly represent the county. In Wayne County Prosecuting Attorney v Wayne County Board of Commissioners, 44 Mich App 144; 205 NW2d 27 (1972), the Court of Appeals upheld the right of a board of county commissioners to employ a corporation counsel on a continuing basis.