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. 5557

September 7, 1979

COUNTY BOARD OF COMMISSIONERS:

Conflict of interest

COUNTY BOARD OF COMMISSIONERS:

Liability for appointment of member to county position

CONSTITUTIONAL LAW:

Statute imposing strict liability upon members of county boards of commissioners

A member of a county board of commissioners may not be appointed to serve as an employee of the county unless specifically authorized to do so by law.

Members of the county board of commissioners who vote in favor of such appointment or employment are liable to the county for monies paid as salary, wages or compensation to the person who received the appointment.

Efforts should first be made to recover these monies from the person who illegally received them. If the monies are not recovered from the recipient, the members of the board who voted in favor of the appointment may be held jointly and severally liable. Monies so recovered should be deposited in the county treasury.

Joseph Barberi

Prosecuting Attorney

Isabella County

200 N. Main Street

Mt. Pleasant, Michigan 48858

You have requested my opinion as to whether 1851 PA 196, as last amended by 1978 PA 326, Sec. 30(a); MCLA 46.30(a); MSA 5.353(1), is unconstitutional for overbreadth.

1851 PA 156, Sec. 30(a), supra, states:

'(1) A member of the county board of commissioners of any county shall not be eligible to receive, or shall not receive, an appointment from, or be employed by an officer, board, committee, or other authority of that county except as otherwise provided by law.

'(2) In case of an appointment or employment made in violation of this section, both the person making the appointment or employment and the person appointed or employed shall be liable for moneys paid to the person as salary, wages, or compensation in connection with the appointment or employment. In case the appointment or employment is made by a committee or board, a member of the committee or board at the time the appointment was made or contract of employment entered into shall be liable. . . .' [Emphasis added]

Clearly, 1851 PA 156, Sec. 30(a), supra, has established a standard of strict liability, wherein the members of county boards of commissioners are presumed to know the laws with which they are in constant contact. There could exist, as you point out, a paradox within the application of the statute. This would allow for the appointment of a member of the board to a prohibited position, over the objection of one or more members of such board, and hold such objecting members of the board liable for the appointment.

The act provides that '. . . a member of the committee or board at the time the appointment was made . . . shall be liable. . . .' No differentiation is made between members supporting and members opposing the appointment.

The definition of overbreadth is:

'. . . [T]hat the challenged statute includes within its prohibitions both legal and illegal activity.' Police Officers Guide, National Union of Police Officers, AFL-CIO v Washington, 369 F Supp 543, 551 (1973).

The legal activity in this case would be a vote of a commissioner in opposition to the appointment of a member of the board to another position which is prohibited by the statute. The illegal activity is the appointment of a member of the board to a prohibited position. A portion of the statute brought into question reads:

'. . . both the person making the appointment or employment and the person so appointed or employed, shall be liable for monies paid to the person as salary, wages, or compensation in connection with the appointment or employment. . . .'

The rules of construction, as applied by the courts to legislative enactments, support the constitutionality of a statute:

'In the construction of statutes courts should lean towards that construction which will give the statute force, validity, not to that construction which will nullify it. . . .' Thomas Canning Co. v Southern Pacific Co, 219 Mich 388, 400; 189 NW 210 (1922). Cited with approval in Pigorsh v Fahner, 386 Mich 508, 514; 194 NW2d 343 (1972).

This statute may logically be construed to deem only those supervisors voting for such illegal appointments as liable. The statute goes on to settle liability for such appointment on 'a member of a board or committee making an appointment or employment':

'. . . An officer or other official, or a member of a board or committee making an appointment or employment in violation of this section is guilty of a misdemeanor, . . .' [Emphasis added]

The result of such language is to place liability only on the persons committing an illegal action and not on (1) those who did not vote and (2) those who voted against such appointment.

A fair reading of MCLA 46.30(a), supra, does not direct liability for all concerned members of boards including those who were not involved in or objected to the illegal act. Thus, in answer to your first question, it is my opinion that MCLA 46.30(a), supra, is not unconstitutionally overbroad.

It is also necessary to consider whether all members of the board, including the illegal appointee, are equally liable for all compensation paid to the illegal appointee when no member of the board was aware of such illegality of appointment when the appointment was actually made, and when the appointee has faithfully served without notice of such illegality?

As discussed previously, only board members voting for the illegal appointment incur liability. Members of the board who did not vote, or who voted against the illegal appointment incur no liability.

The statute contemplates recovery of the monies illegally paid. Therefore, efforts should be made to recover these monies from the person who illegally received them. If the monies are not recovered from the recipient, the members of the county board of commissioners who voted in favor of the appointment may be jointly and severally liable. Any monies recovered should be deposited in the county treasury.

Frank J. Kelley

Attorney General