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. 5397

November 14, 1978

PROSECUTING ATTORNEYS:

Incompatibility with offices of township treasurer or township school board members in the same county

PROSECUTING ATTORNEYS:

Incompatibility of office of assistant prosecuting attorney

INCOMPATIBILITY:

Prosecuting attorney or assistant prosecuting attorney holding the offices of township treasurer or school board member in the same county

The offices of prosecuting attorney and assistant prosecuting attorney are incompatible with the offices of township treasurer and member of a school board in the same county.

Mr. Robert L. Kaczmarek

Prosecuting Attorney

County of Saginaw

111 S. Michigan Avenue

Saginaw, Michigan 48602

You have requested my opinion on the following questions:

1. Does the incompatibility of offices apply to non-elected assistant prosecuting attorneys to the same extent that it applies to elected prosecuting attorneys?

2. Is the office of prosecuting attorney incompatible with either the office of township treasurer or school board member in the same county?

The common rules concerning incompatibility of offices are well settled. Incompatibility exists where the nature and duties of two public offices are such as to render it improper, from a consideration of public policy, for one person to hold both positions simultaneously. Weza v Auditor General, 297 Mich 686 (1941); Attorney General ex rel Moreland v Common Council of the City of Detroit, 112 Mich 145 (1897). Thus, incompatibility is present when one office is subordinate to the other. It is also present when the holder of one office has the power to remove the incumbent from the other office or where the holder of two offices may be called upon to advance the interest of both public agencies even though those interests are in conflict. Moreland, supra; and OAG 1977-1978, No. 5261, p. ___ (February 1, 1978). The doctrine of incompatibility does not turn upon the integrity of the individual holding the two public offices, but is based upon the public interest in having decisions made objectively and solely in the public interest.

The duties of an assistant prosecuting attorney are set forth in 1911 PA 41, Sec. 2; MCLA 49.42; MSA 5.802 which provides that he or she shall:

'Perform any and all duties pertaining to the office of prosecuting attorney at such time or times as he may be required so to do by the prosecuting attorney and during the absence or disability from any cause of the prosecuting attorney . . .'

Since the duties of an assistant prosecuting attorney are to perform any and all duties of the prosecuting attorney, it follows that any public office incompatible with the office of prosecuting attorney is incompatible with the duties and responsibilities of an assistant prosecuting sttorney.

Turning to your second question, certain duties of a township treasurer are spelled out in RS 1846, Chapter 16, Sec. 76 et seq; MCLA 41.76 et seq; MSA 5.68 et seq which provides in part that:

'The township treasurer shall receive and take charge of all moneys belonging to the township, or which are by law required to be paid into the township treasury . . . and shall pay over and account for the same, according to the order of such township, or the officers thereof duly authorized . . . and shall perform all such other duties as shall be required of him by law.'

Also, RS 1846, Chapter 16, Sec. 70, MCLA 41.70; MSA 5.62, provides that the township treasurer be a member of the township board. Thus, the treasurer, as a member of the township board exercises policy-making responsibilities.

The general powers and duties of the office of member of a board of education are set forth in the School Code of 1976, 1976 PA 451, Sec. 1201 et seq; MCLA 380.1201 et seq; MSA 15.41201. These duties encompass all aspects of the general administration of the school district and include the power to levy taxes, Sec. 1211, and borrow and invest funds, Sec. 1225, 1223.

The duties of a prosecuting attorney are found at RS 1846, Ch 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, application and motions, whether civil or criminal, in which the state or county may be a party or interested.'

In addition, a prosecuting attorney may be requested by the Attorney General to provide assistance in the investigation examination, and/or audit of books, records and accounts of any township, school district or any public officer thereof. 1929 PA 52, Sec. 1; MCLA 14.141; MSA 3.241.

It is this latter responsibility of the prosecuting attorney which led to the conclusion stated in a letter opinion to Senator Ziegler dated October 22, 1976, that in the event the prosecuting attorney is requested to assist in an investigation of the school district, pursuant to 1929 PA 52, Sec. 1, the operation of the office of prosecuting attorney and school board president would be inconsistent.

This analysis would equally apply to members of a township school board and the township treasurer inasmuch as the duties imposed on the prosecuting attorney by 1929 PA 52, Sec. 1, supra, extend to their records.

Therefore, it is my opinion that the offices of prosecuting attorney and assistant prosecuting attorney are incompatible with the offices of township treasurer and school board member in the same county.

Frank J. Kelley

Attorney General