[ Previous Page] [ Home Page ]
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. 5626 January 16, 1980 INCOMPATIBILITY: Officers of school board member/vehicle trustee; school board member/city superintendent of public works; county road commissioner/township trustee; county road commissioner/village council member; county auditor/member of county health services board and member of board of commissioners/township assessor Where a person simultaneously holds the office of school board member and village trustee, there is no incompatibility as long as the two entities do not negotiate or enter into an agreement with each other. Similarly, unless negotiations for or an actual contract is entered into between the school district and the city, it is not incompatible for a person to serve as a school board member and the city superintendent of public works. Although a county road commission may enter into an agreement with a village or a township, this authority to contract does not render the positions of county road commissioner and township trustee or village council member incompatible unless such a contract is negotiated for or entered into. The offices of member of county board of auditors and member of county health services board are incompatible. The offices of member of county board of commissioners and township assessor are incompatible. Honorable Ralph Ostling State Representative The Capitol Lansing, Michigan 48909 Honorable Ernest W. Nash State Representative The Capitol Lansing, Michigan 48909 Mr. William S. Bovill Corporation Counsel County of Saginaw 3434 Davenport Avenue Saginaw, Michigan 48062 Honorable Roy Smith State Representative The Capitol Lansing, Michigan 48909 Honorable Steve Andrews State Representative The Capitol Lansing, Michigan 48909 Mr. James P. Hoy Prosecuting Attorney County of Luce 405 Newberry Avenue Newberry, Michigan 49868 You have requested my opinion as to whether certain public offices may be concurrently held by the same individual. 1978 PA 566, MCLA 15.181 et seq; MSA 15.1120(121) et seq, prohibits the holding of incompatible public offices and sets forth the standards under which such incompatibility is to be determined. However, prior to the enactment of 1978 PA 566, supra, the common law governed the determination of whether two public offices were incompatible. It is, therefore, necessary to review the common law doctrine of incompatibility and the changes effected by 1978 PA 566, supra, in order to place this body of law in proper perspective. The common law principles of incompatibility were summarized in OAG, 1967-1968, No 4620, p 278-279 (August 7, 1968): '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 or 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 Counsel of Detroit, 112 Mich. 145 (1897); Weza v. Auditor General, 2197 Mich. 686 (1941). See also O.A.G. 1963-64, p. 420; O.A.G. 1959-60, Vol. 1, p. 113; O.A.G. 1957-58, Vol. 1, p. 225; O.A.G. 1955-56, Vol. 1, p. 228. 'The rule of incompatibility has been extended to public employment where the duties of the public employment and the public office are incompatible so that they may not be simultaneously exercised by the same person. It has also been held that the legal consequence of such incompatibility applies so that by acceptance of the second public position, there is a vacation of the first public position. Knuckles v. Board of Education of Bell County, 114 S.W. 2d 511, (Ken., 1938). See also O.A.G. 1963-64, p. 459. 'It must be stressed that the above are common law principles involving incompatibility of public offices and positions. In the absence of a constitutional prohibition, it is within the authority of the legislature, by clear statutory provision, to permit the same person to occupy two public offices or two public positions, the duties of which are incompatible.' Thus, this common law doctrine focuses on the character and relationship of two public offices in order to determine whether an incompatibility exists due to: (1) The subordination of one office to the other; (2) The supervision of one office by the other; or (3) The inherent inconsistency and repugnancy of the functions of the two offices. Applying the first and second criteria for incompatibility, this office has held that the positions of county and township superintendents of schools may not be simultaneously held by the same person, OAG, 1959-1960, No 3359, p 113 (June 12, 1959); that the office of member of the State Board of Education is incompatible with the office of member of a local or immediate school district, OAG, 1963-1964, No 4309, p 459 (September 11, 1964). The third basis for common law incompatibility has been applied to situations in which the two public offices have competing interests which must be advanced by the officeholder in either a contractual setting or before a tribunal. OAG, 1967-1968, No 4698, p 317, 320 (October 31, 1968), sets forth the principle of incompatibility arising out of the ability of two offices to enter into contractual relationships with each other: 'In People ex rel. Kraemer v. Bagshaw (1942), 55 C.A. 2d 940, 130 P 2d 243, the Court held that the duties of the offices of city councilman and county supervisor were incompatible. Among the conflicting duties cited as the basis of that holding was the authority of the county board to contract with the city council for various purposes. Similarly in McDonough v. Roach (1961), 35 NJ 153, 171 Atl 2d 307, 309, the Court held the office of the mayor of a city and that of member of the board of chosen freeholders of a county were incompatible. The basis of that decision was that the legislature of New Jersey had authorized the county to contract with the city with respect to sundry subjects, the Court speaking of the nature of the conflict at page 309 as follows: "In all of these matters the terms upon which the project is to be pursued are left to the agreement of the public bodies. In the negotiations the county board is bound to consider the interests of all of its citizens while the local governing body has a like obligation to the citizenry of the municipality alone. No man, much less a public fiduciary, can sit on both sides of a bargaining table. He cannot in one capacity pass with undivided loyalty upon proposals he advances in his other role. The offices are accordingly incompatible. ' 'In my opinion the rationale of these two cases is persuasive. 'In Michigan there is in addition to statutes which authorize counties to contract with either townships or cities for particular purposes, Act 35, P.A. 1951, which authorizes a county to contract with either a city or township or any other municipal corporation 'for the ownership, operation, or performance, jointly, or by any 1 or more on behalf of all, of any property, facility or service which each would have the power to own, operate or perform separately.' 'Thus as in Bagshaw and Roach, supra, if the same person holds both offices, there is a potential conflict in the duties between the office of township supervisor or city councilman and the office of county supervisor. As held in those cases, that potential conflict is against the public policy. I emphasize that while the actual conflict of duties may arise but infrequently, it is the existence of the power, not the remoteness of its exercise, that is controlling. Attorney General, ex rel. Moreland v. Common Council of City of Detroit, supra.' See also, OAG, 1975-1976, No 5087, p 690 (December 6, 1976). This recognition that no individual can faithfully serve two masters has led this office to conclude in I OAG, 1957-1958, No 2978, p 225, 226 (May 1, 1957): '. . . It was there determined that the offices of township supervisor and member of a school board embracing the particular township are incompatible for the reason that the duties of the supervisor include presentation to the county tax allocation board of the needs of the township as against other taxing units. The same individual could not protect the interests of both the township and the school districts lying therein in the allocation of millage.' (1) Correspondingly, OAG, 1963-1964, No 4307, p 422-423 (June 30, 1964), in holding that the offices of member of the township board of review and member of the local board of education in the same township are incompatible, stated: 'From the foregoing resume of the duties and responsibilities of members of the township board of review it clearly appears that any person serving as a member of that board cannot exercise an unbiased judgment or perform a disinterested service if at the same time this person is a member of the local board of education. As a member of the school board such an individual knows that the public schools in his township receive their operating revenues from current tax levies plus such additional operating millage as may have been voted. He also knows that taxes result from the application of tax rates and voted millage to the assessed valuation of property in the township. Thus higher tax returns tend to flow from higher assessed valuations. While it is true that the township board of review at its first meeting must deal with the several parcels or items of real or personal property on an individual basis, there will be many situations before the board where a member may exert his influence to increase assessed values. . . .' It should be noted that at common law the incompatibility of public offices is determined through a review of the powers and duties of the offices. OAG, 1969-1970, No 4686, p 153, 154-155 (June 29, 1970), recited the often-quoted statement of this principle in CJS, Officers: ". . . The question of incompatibility of necessity depends on the circumstances of the individual case. Although there is authority holding that offices are incompatible when it is physically impossible that they may be performed properly by the same person, the general rule is that the inconsistency, which at common law makes offices incompatible, does not consist in the physical impossibility to discharge the duties of both offices, but lies rather in a conflict of interest, as where one is subordinate to the other and subject in some degree to the supervisory power of its incumbent, or where the incumbent of one of the offices has the power of appointment as to the other office, or the power to remove the incumbent of the other, or to audit the accounts of the other, the question being whether the occupancy of both offices by the same person is detrimental to the public interest or whether the performance of the duties of one interferes with the performance of those of the other. Thus, in determining incompatibility, the permanency of the position, the power granted, and the functions actually performed should be considered. It is not the performance, or the prospective right of performance, of inconsistent duties only that gives rise to incompatibility, but the acceptance of the functions and obligations growing out of the two offices; until tenure in the sense of term of office exists, there can be no incompatibility of official duty. The offices may be incompatible even though the conflict in the duties thereof arises on but rare occasions. . . .' C. J. S., Officers, Sec. 23, pp. 135-36.' Thus, OAG 4686, supra, held that a city clerk, whose duties as defined by city charter did not confer upon him a vote on the city council, could simultaneously serve as a member of the Board of Governors of Wayne State University, since only the council itself had the authority to approve contracts on behalf of the city with the University. With this review of the common law doctrine of incompatibility as a backdrop, the incompatibility statute, 1978 PA 566, supra, may be interpreted in accordance with the following principles stated by the Court of Appeals in Gruskin v Fisher, 70 Mich App 117, 123-124; 245 NW2d 427 (1976): 'Legislative amendment of the common law is not lightly presumed. "The rule has been declared by the United States Supreme Court, as follows: 'No statute is to be construed as altering the common law, further than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.' A statute may take away a common law right, but there is a presumption that the legislature has no such purpose. "This rule of statutory interpretation has received wide adoption, and is employed where there is reasonable doubt whether a change in the common law which is claimed to have been made by a statute should apply to a particular situation or circumstance. If a change is to be made in the common law, therefore, the legislative purpose to do so must be clearly and plainly expressed.' 3 Sutherland, Statutory Construction, Sec. 61.01, p 41 (Sands Ed, 1974).' 1978 PA 566, supra, Sec. 1, sets forth the definitions of the Act's essential terms. These terms include the definition of 'public employee' as an employee of any public entity in the state, whether at the state or local government level, section 1(d); and 'public officer' as any person elected or appointed to a public office in the state, whether at the state or local government level, section 1(e). However, most importantly is the following definition of 'incompatible offices' set forth at section 1(b): "Incompatible offices' means public offices held by a public official which, when the official is performing the duties of any of the public offices held by the official, results in any of the following with respect to those offices held: '(i) The subordination of 1 public office to another. '(ii) The supervision of 1 public office by another. '(iii) A breach of duty of public office.' Although the definition of the term 'incompatible offices' describes the officeholder as a public official rather than in terms of 'public employee' or 'public officer', this discrepancy is reconciled by reference to section 2 of the Act which states: '(1) Except as provided in section 3, a public officer or public employee shall not hold 2 or more incompatible offices at the same time.' Thus, this Act continues the applicability of incompatibility principles to both public officers and employees as previously recognized at common law. With respect to the first and second criteria of incompatibility at common law (the subordination of one public office to another, and its converse, the supervision of one public office by another) the statute recites these principles without definition. Thus, it must be assumed that the Legislature accepted the commonly-understood meanings of the terms 'subordination' and 'supervision'. Detroit Edison v Secretary of State, 281 Mich 428; 275 NW 196 (1937). Webster's New Third International Dictionary defines the term 'subordination' to mean 'submissive to or falling under the control of a higher authority.' It defines the term 'supervision' to mean 'to coordinate, direct and inspect continuously'. These commonly-understood meanings of the terms 'subordination' and 'supervision', in conjunction with the principles enunciated in Gruskin v Fisher, supra, that legislative revision of the common law is not to be lightly presumed, leads to the conclusion that the first and second criteria of incompatibility at common law have not been altered by the statute. Thus, the first and second criteria of incompatibility as set forth by the statute would extend to those situations in which 'the incumbent of one of the offices has the power of appointment as to the other office, or the power to remove the incumbent of the other, or to audit the accounts of the other'. CJS, Officers, Sec. 23, p 135-136. Although the statute adopts the first and second criteria of common law incompatibility, there is a significant difference between the third statutory criterion and the common law doctrine of incompatibility. As stated earlier, under the common law, the test of incompatibility involved an analysis of the character and relationship of the two offices, not merely the performance, or the prospective right of performance, of inconsistent duties gave rise to incompatibility. 67 CJS, Officers, Sec. 23, pp 135-136. The statute, however, focuses upon the manner in which the public official performs the duties of the public offices. This is true because, pursuant to the statutory definition of the term 'incompatible offices' at section 1(b), incompatibility exists only when the performance of the duties of one of the public offices by the official results in any of the three prohibited situations occurring. This shift in approach does not alter the first and second criteria of incompatibility as expressed in the common law. If one public office is subordinate or supervisory over another office, a public officer will usually be unable to perform the duties of both offices simultaneously in a manner which will avoid this subordination or supervision. However, with respect to the third criterion, in many situations the public official may be able to perform the functions of two public offices without breaching a duty of either office by simply not performing a function which may constitute a breach of duty. By way of illustration, under the common law the authority of two public entities to contract with each other would prohibit the same person from serving both in positions of influence in determining whether to approve, amend or implement the contract since the person could not give complete loyalty to one entity without some sacrifice of loyalty to the other. This would be true even if the two public entities had not contracted with each other in the past or contemplated doing so in the foreseeable future. It was the potential for conflict which was determinative, even though no actual conflict of duties has occurred. OAG 4698, supra. Where, however, incompatibility arises only when the performance of the duties of the two offices results in a breach of duty of a public office, there is no incompatibility until the two public entities actually enter into contractual negotiations with each other. Also, in such cases, the public officer or employee may avoid breaching his or her duty of loyalty by abstaining from participating in the consideration of the contract. The incompatibility statute does not define the term 'breach of duty of public office.' Certainly, a public officer's failure to perform duties prescribed by statute would constitute a breach of duty. 1931 PA 328, Sec. 478, MCLA 750.478; MSA 28.746, provides: 'When any duty is or shall be enjoined by law upon any public officer, or upon any person holding any public trust or employment, every wilful neglect to perform such duty, where no special provision shall have been made for the punishment of such delinquency, shall be deemed a misdemeanor, punishable by imprisonment in the county jail for not more than 1 year or by a fine of not more than 500 dollars.' In People v Bommarito, 33 Mich App 385, 388-389; 190 NW2d 359 (1971), the Court of Appeals in reinstating an information charging an undersheriff with violation of 1931 PA 328, Sec. 478, supra, stated: 'The undersheriff is required by statute (MCLA Sec. 51.73 [Stat Ann 1961 Rev Sec. 5.866]) to take the same oath of office as the sheriff and he has the same duty to obey and enforce the laws of this state. Failure to enforce the law or prevent a violation of which he is cognizant constitutes a breach of this duty. State v. Reichman (1916), 135 Tenn 653 (188 SW 225). 'Such a breach of duty is a wilful neglect of duty in violation of MCLA Sec. 750.478 (Stat Ann 1954 Rev Sec. 28.746).' Thus, if a public official wilfully breaches a duty of one public office, the official has violated 1931 PA 326, Sec. 478, supra, irrespective of any duty owed to the second public office concurrently held by the official. See also State v McClung, 123 W Va 682, 689; 17 SE2d 621 (1941), Nuecus County v Currington, 139 Tex 297, 300; 162 SW2d 687 (1942). In addition to the duties expressly imposed upon public officials by statute, the common law has long recognized the fiduciary obligation a public official owes the public entity he or she serves. In People v Township Board of Overyssel, 11 Mich 222, 225 (1863), the Court stated: '. . . All public officers are agents, and their official powers are fiduciary. They are trusted with public functions for the good of the public; to protect, advance and promote its interests, and not their own. And, a greater necessity exists than in private life for removing from them every inducement to abuse the trust reposed in them, . . .' Thus, within the context of the incompatibility statute, a breach of duty would occur when the simultaneous holder of two public offices failed to protect, advance and promote the interests of both public offices. A review of the legislative history of the incompatibility statute is helpful in determining whether this shift in direction from the common law under the third criterion was intended by the Legislature. There were two significant amendments to House Bill No. 6699 as originally introduced in the Legislature and referred to the Committee on House Policy as indicated in House Journal 1978, p 3360. The first amendment deleted subsection (2) of section 2 in the original version of the bill which stated: '(2) A public officer who accepts a second public office while holding a public office which is incompatible with the second public office shall be considered to have vacated the first public office held.' The second amendment added a provision, which became section 5 of the statute, and reads as follows: 'An action of a public officer or public employee shall not be absolutely void by reason of this act. An action of a public officer or public employee shall be voidable only by discretionary action of a court of competent jurisdiction, as prescribed in section 4. However, any judicial relief or judicial remedy shall operate prospectively only.' The elimination from the language of House Bill 6699 of the common law remedy for incompatible offices which dictated an ipso facto vacation of the first incompatible office after acceptance of the second, coupled with the inclusion of a remedy designed to void only an 'incompatible act' without affecting a public official's concurrent holding of the two public offices indicates that the Legislature intended a departure from common law. It is, therefore, my opinion that a public official may concurrently hold two public offices which are not in a supervisor/subordinate relationship as long as the official refrains from performing the functions of each office in a manner which would be a breach of duty. Also, while incompatibility principles had been applied to public employment as well as public office under common law, OAG 4620, supra, the common law of ipso facto vacation of the first incompatible position may now be more easily reconciled with civil service and tenure laws. Instead, the remedy for incompatible offices is contained in section 4 of the act which states: 'The attorney general or a prosecuting attorney may apply to the circuit court for Ingham county or to the circuit court for the county in which the alleged act or practice in violation of this act is alleged to have occurred or in which a party to the alleged violative act or practice resides, for injunctive or other appropriate judicial relief or remedy. However, this act shall not create a private cause of action.' Vacation of one position would usually be required under the first and second criteria of the statute. If one position is subordinate to another, the circuit court could require the public officer or employee to resolve the incompatibility by vacating one of the two positions. With respect to the third criterion of the statute, under common law, the acceptance of a second inconsistent office constituted an ipso facto vacation of the first. Under the statute, if a breach of duty occurs, a less drastic remedy may be available. Continuing with the example, if a public official approved both sides of an agreement between a city and a local school district as city councilperson and school board member, a court could either void the contract or decide to uphold it if it determines that the contract would have been approved without the participation of this particular public official. As noted, 1931 PA 28, Sec. 478, supra, provides that a public officer's wilful neglect to perform a public duty constitutes a misdemeanor. A public official's failure to participate in the negotiation of an agreement between two public entities in order to avoid an incompatibility arising from his or her concurrent membership on the boards of both bargaining public entitles could be considered a wilful neglect of duty. In Gray v Clerk of Common Pleas Court, 366 Mich 588, 594; 115 NW2d 411 (1962), the Court, with respect to a court bailiff's failure to serve process, stated: 'The continued failure to serve process in the instant case is the same as in the Cartwright Case. Failure for long periods of time to serve process, in accordance with the duties set forth in the statute, is misfeasance. It is to be noted that the statute calls to the attention of the court its duty to compel bailiffs serving process out of such court to perform their duties. Nonfeasance is a substantial failure to perform a duty, or, in other words, the neglect or refusal, without sufficient excuse, to do that which it was the officer's legal duties of a public office is in and of itself not only nonfeasance but also malfeasance. 'Public policy dictates that those who have charge of public officers and officials have the authority to remove them if they fail to carry out their duties, whether those duties are placed on them by statute or by the inherent responsibilities and duties of the office itself. . . .' Thus, a public official's abstention from the responsibilities of his or her office in order to avoid participating in the approval of both sides of an agreement between the two public entities which he or she serves is itself a breach of duty. Only vacation of one office will resolve the public official's dilemma. With this understanding of the incompatibility statute, the following relationships described in your inquiries may be analyzed: 1. School board member and village trustee 2. School board member and city superintendent of public works 3. County road commissioner and township trustee 4. County road commissioner and village council member 5. Member of board of county auditors and member of county health services board 6. Member of county board of commissioners and township assessor or assessor for any local unit of government within the same county With respect to the first and second relationships (a school board member concurrently serving as a village trustee or city superintendent of public works) it should first be noted that each local school district is a public body corporate. 1976 PA 451, Sec. 1132, MCLA 380.1132; MSA 15.41132. A member of a board of education of a local school district performs his or her duties without subordination to, or supervision of, the city or village government within which the school district is located. Thus, the first and second criteria for incompatibility under the statute are inapplicable. Under the first relationship, although a local school district and a village may enter into an agreement, pursuant to 1951 PA 35, MCLA 124.1 et seq; MSA 5.4081 et seq, which would be approved by the board of education and village trustees, respectively, there is nothing inherent in the duties of school board member or village trustee which would indicate that the performance of these duties by one individual would result in a breach of duty of public office. As long as the two public entities do not negotiate an agreement with each other, the public official serving both would not fall within the third criterion of the incompatibility statute. Similarly, under the second relationship, the office of city superintendent of public works would not be incompatible with the position of school board member unless negotiations for or an actual contract is entered into between the school district and the city were actually entered into. It is, therefore, my opinion that the office of school board member and village trustee or city superintendent of public works are not incompatible under 1978 PA 566, supra, unless there is a contract between the two public bodies which imposes a duty upon the named official. This same analysis would apply to the third and fourth relationships (a county road commissioner concurrently serving as a township trustee or village council member). The office of county road commissioner is neither subordinate to nor supervisory over the offices of township trustee or village council member. It is, therefore, my opinion that, although a county road commission may enter into an agreement with a village or a township to perform work on local roads, pursuant to 1951 PA 51, Sec. 12(13), MCLA 247.662(13); MSA 9.1097(13), this authority to contract does not render these positions incompatible unless such a contract is entered into. With respect to the fifth relationship (a member of the county board of auditors concurrently serving as a member of the county health services board) the duties of the board of county auditors are set forth in 1913 PA 275, Sec. 9, MCLA 47.9; MSA 5.559. These duties include the auditing of all claims which are chargeable to the county, the purchasing of supplies for the county and its officers, the examination of the books of accounts of all county officers, and the recommending to the county board of commissioners the number of personnel and respective salary levels necessary for the various county offices. The county mental health services board is a county agency under 1974 PA 258, Sec. 204, MCLA 330.1204; MSA 14.800(204). Thus, in exercising the duties set forth in 1974 PA 258, Sec. 226, MCLA 330.1226; MSA 14.800(226), to provide mental health services to persons located within the county, the county mental health services board is effectively subject to the supervisory authority of the board of county auditors. It is, therefore, my opinion that the offices of member of the board of county auditors and member of the county mental health services board are incompatible under 1978 PA 566, supra. With respect to the sixth relationship (a member of the county board of commissioners concurrently serving as township assessor or assessor for any other local unit of government within the same county) the county board of commissioners is required by 1893 PA 206, Sec. 34, MCLA 211.34; MSA 7.52, to meet in April of each year to examine the assessment rolls of the cities and townships within the county to ascertain whether the real and personal property within the cities and townships have been equally and uniformly assessed at true cash value. The county board of commissioners may also furnish assistance to local assessing officers in the performance of their duties. Consequently, the county board of commissioners effectively serves in a supervisory capacity over local assessors within the county when fulfilling the duties imposed upon the board by 1893 PA 206, Sec. 34, supra. It is, therefore, my opinion that the office of member of a county board of commissioners and office of township assessor or other local government assessor in the same county are incompatible under 1978 PA 566, supra. Frank J. Kelley Attorney General (1)
[ Previous Page] [ Home Page ]