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. 5359 September 8, 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 Although a prosecuting attorney may not hold an office as a municipal attorney of a municipality in the same county, he or she may serve as counsel for such a municipality provided the right to refuse an assignment from the municipality is reserved. Mr. Eugene C. Penzien Prosecuting Attorney Bay County Building Bay City, Michigan 48706 You requested my opinion on the following question: 'May a prosecuting attorney act as attorney for a city, township or village where there has been no formal appointment and acceptance of the office of city, township or municipal attorney as such?' OAG, 1977-1978, No. 5261, p ___ (February 1, 1978), held that the offices of prosecuting attorney and municipal attorney for a municipality in the same county are incompatible for the reason that a person may not simultaneously occupy two public offices where the public trust vested in the holder of each office cannot be served by the same person because of conflicting obligations of the two positions. Examples of such conflicting obligations are: (1) where one position is supervisory of the other or, (2) where the two entities served may contract with each other and the office-holder could find himself on both sides of a bargaining table. The prosecutor's principal obligation is to his office as county prosecutor. Ray v Gun Plains Township, 340 Mich 549; 66 NW2d 95 (1954), and OAG 5261, supra. Of principal concern in assessing his or her relationship with the municipality is whether the attorney has retained the right to refuse an assignment by the municipality on the grounds that it would conflict with his responsibilities as prosecutor. Where he or she has reserved this discretion, his relationship to the municipality is that of attorney-client rather than holding a municipal office. In such case the doctrine of incompatibility does not apply. In a letter to Governor William G. Milliken dated October 27, 1970, I held: 'I am aware that in OAG 1967-1968, pp. 317, 323, I ruled that a city attorney who is charged with the duty of taking an active role in the negotiations, preparation and execution of any contracts to which the city is a party would be an agent of the city council. Were Mr. Carr appointed as house counsel for Michigan State University he would undoubtedly be in the same position. However, as he is able to refrain from accepting particular assignments that could involve conflicting loyalties, his position is somewhat different. . . . 'It is therefore my opinion that so long as an attorney retains independent status rather than accepts the position of house counsel, the doctrine of incompatibility does not prohibit him from serving as an attorney for Michigan State University and also as a member of the board of control of Oakland University. . . .' [Emphasis added] The taking of an oath of office as a municipal attorney is evidence of the acceptance of an 'office'. Failure to take the oath is not, however, standing alone, indicative that an attorney is not actually the municipal attorney. It is therefore my opinion that, although a prosecuting attorney may not hold an office as a municipal attorney of a municipality in the same county, he or she may serve as counsel for such a municipality provided the right to refuse an assignment from the municipality is reserved. Frank J. Kelley Attorney General