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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)



Opinion No. 5640

February 1, 1980


Son of a board member serving as employee of the board


Son of a member of a board also an employee of a board


Son of a member of a board also an employee of the board


Impartial tribunal

The State Board of Ethics has ruled that the son of a member of the Barrier Free Design Board may be employed by the Board without violation of the ethical standards of 1973 PA 196.

A member of the Barrier Free Design Board may not participate in any case in which her son appears on behalf of the agency.

Honorable Jelt Sietsema

State Representative

The Capitol

Lansing, Michigan 48909

You have asked my opinion on the following questions:

1. Is there a conflict of interest present where an employee of the barrier free design board is a son of a member of the board?

2. If such conflict of interest does exist, how is it to be resolved?

The persons to whom you refer in your letter have directed a similar inquiry to the state board of ethics which operated under the provisions of 1973 PA 196, as amended, MCLA 15.341 et seq; MSA 4.1700(71) et seq. (1) That board is vested with authority to issue advisory opinions upon request from public officers and employees relating to matters affecting ethical conduct of public officers and employees. 1973 PA 196, supra, Sec. 5(1)(e). On June 12, 1979 that board issued advisory opinion 79-EA-11 concluding that, although the circumstances therein did not constitute a violation of the ethical standards of 1973 PA 196, supra, Sec. 2(6), the rule in Warren Consolidated Schools v Employment Relations Commission, 67 Mich App 58; 240 NW2d 265 (1976), was applicable in these circumstances. In that case the Court of Appeals vacated a decision of the Michigan Employment Relations Commission and remanded the matter to the commission for the reason that one of the commissioners, who was a brother and former law partner of the attorney for one of the parties to the case, actively participated in the decision. In ruling, the court stated:

'. . . The object of this rule of absolute disqualification is more than a guarantee that a legal dispute will be resolved objectively by unbiased and impartial persons. It is also a shield against any suspicion on the part of the litigants and the public that any subjectivity, bias and partiality contributed to the outcome of the dispute. The thought behind such a rule was best expressed by Justice Frankfurter in Baker v Carr, 369 US 186, 267; 82 S Ct 691, 737-738; 7 L Ed 2d 663, 714-715 (1962):

"The Court's authority--possessed of neither the purse nor the sword--ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and in appearance, '

'We find attainment of what the rule seeks to accomplish impossible with brother arguing to brother whether the proceeding be judicial or administrative, and even where the only impropriety on the record is the fact that one brother participated in the decision of a controversy in which his brother was one of the advocates.'

The court thus held that the rule of absolute disqualification applicable to judicial proceedings is also applicable to administrative proceedings.

Therefore, inasmuch as a mother-son relationship is within the third degree of consanguinity, GCR 1963, 912.2(5) is here applicable. That court rule provides in pertinant part:

'A judge is disqualified when he cannot impartially hear a case, including a proceeding where the judge . . . is within the third degree (civil law) of consanguinity or affinity to a person acting as an attorney. . . .'

It is, therefore, my opinion that a member of the barrier free design board may not participate in any case in which her son appears on behalf of the agency.

Frank J. Kelley

Attorney General

(1) The facts stated are that Richard Smith, in the course of his employment as administrative assistant for barrier free design matters to the director of the bureau of construction codes of the department of labor, acts in various capacities before the barrier free design board, of which his mother is a member. He submits to the barrier free design board recommendations with respect to requests, made pursuant to 1966 PA 1, supra, Sec. 5(5)(a), for exceptions to the barrier free design requirements contained in the state construction code. He may appear when a decision proposed by a hearing officer is reviewed by the board. Such appearance may be in the role of an advocate when a proposed decision in a case involving a complaint for noncompliance under 1966 PA 1, supra, Sec. 5(5)(c), is before the board.


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