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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)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5682

April 17, 1980

CONFLICT OF INTEREST:

Member of board of education holding membership in collective bargaining organization representing teachers of the school district

LABOR:

Collective bargaining by organization for teachers of several school districts

SCHOOLS AND SCHOOL DISTRICTS:

Member of a board of education holding membership in collective bargaining organization representing teachers of the school district

TEACHERS:

Membership in collective bargaining organization representing teachers in several school districts

A member of a board of education of a school district who is also a member of a collective bargaining organization which is representing the teachers of such school district is not in a conflict of interest if the member discloses his or her membership in the organization of the collective bargaining representative, abstains from voting on any contract between the school district and the collective bargaining representative, and the contract has been approved by a vote of two-thirds of the full membership of the board of education.

Honorable Bill S. Huffman

State Senate

The Capitol

Lansing, MI 48909

Dear Senator Huffman:

You have requested my opinion on a question which may be phrased as follows:

Does a conflict of interest exist when a teacher in one school district is a member of a collective bargaining organization that also represents teachers in another school district where the teacher serves on the board of education?

In OAG, 1969-1970, No 4598, p. 46 (April 11, 1969), it was held that the same person could simultaneously occupy the office of member of board of education in one school district and be employed as a teacher in another school district. (1) That opinion was premised upon a situation in which different collective bargaining organizations represented the teachers in each of the involved school districts.

Here, it is undisputed that the same collective bargaining organization represents the teacher's collective bargaining unit in both of the affected school districts. In Northern Michigan Education Association v Kalkaska Public Schools Board of Education, 87 Mich App 604; 274 NW2d 851 (1978) leave to appeal denied 406 Mich 991 (1979), the Court of Appeals sustained the validity of a collective bargaining organization representing the employees in more than one school district under 1947 PA 336, Sec. 9, MCLA 423.209; MSA 17.455(9).

The legislature has enacted 1968 PA 317, MCLA 15.321 et seq; MSA 4.1700(51) et seq, which deals with conflicts of interest in public contracts and includes school board members and public school teachers within its scope. In 1968 PA 317, supra, Secs. 2 and 3, the legislature has provided:

'Sec. 2. (1) No public servant shall be a party, directly or indirectly, to any contract between himself and the public entity of which he is an officer or employee, except as provided in section 3.

'(2) No public servant shall directly or indirectly solicit any contract between the public entity of which he is an officer or employee and (a) himself; (b) any firm (meaning co-partnership or other unincorporated association) of which he is a partner, member or employee; . . . nor shall he take any part in the negotiations for such a contract or the renegotiation thereof or amendment thereto or in the approval thereof; nor shall he represent either party in the transaction; except as provided in section 3.

'Sec. 3. The provisions of section 2 hereof shall apply to all public servants who are paid for working more than an average of 25 hours per week for a public entity, but such provisions shall not apply to any other public servant: (1) if he shall promptly disclose his pecuniary interest in the contract to the official body which has power to approve the same, which disclosure shall be made a matter of record in its official proceedings; and (2) if the contract is approved by a vote of 2/3 of the full membership of such approving body without the vote of a member thereof, if any, making such disclosure.' (Emphasis supplied)

In the situation referred to in your letter, the teacher is a member of a collective bargaining organization that is an unincorporated association. Thus, when the board of education of which the teacher is a member contracts with the teacher's collective bargaining organization in that school district, it is contracting with an unincorporated association of which the school board member in question is a member. Consequently, such school board member must conform to the disclosure, non-voting requirements of 1968 PA 317, supra, Sec. 3, and the contract must be approved by a vote of 2/3 of the full membership of the board of education.

It is my opinion that a conflict of interest exists if a teacher in one school district is a member of a collective bargaining organization that also represents teachers in another school district, where the teacher serves on the board of education, and, in his capacity as a school board member, the person in question fails to follow 1968 PA 317, supra, Sec. 3, with regard to the contract with such collective bargaining organization.

Frank J. Kelley

Attorney General

(1) The simultaneous holding of these two public positions does not result in an incompatibility of public office. See OAG, 1969-1970, No 4598, supra, and OAG, 1979-1980, No 5626, p. ___ (January 16, 1980).

 


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