STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5743

July 22, 1980

PUBLIC OFFICES AND OFFICERS:

Ineligibility to hold a second office

PUBLIC SERVICE COMMISSION:

Member ineligible to hold another public office

A person appointed as a member of the Public Service Commission, upon taking the oath of office as such member, assumed the office of member of the Public Service Commission and simultaneously vacated the office of chairperson and member of a board of trustees of a community college district.

Mr. John William Thomas

Counsel for Charles Stewart Mott Community College

1415 Mott Foundation Building

Flint, Michigan 48502

You have advised that the Chairperson of the Board of Trustees of Charles Stewart Mott Community College has been appointed by the Governor as a member of the Public Service Commission. You have requested my opinion on the following question:

In response to your question, it must first be pointed out that prohibitions against conflicts of interest contained in Const 1963, art 4, Sec. 10 and 1968 PA 318, MCLA 15.301 et seq; MSA 4.1700(21) et seq apply only to situations where a person who holds a public office is interested directly or indirectly in a contract with the state or a political subdivision thereof which causes a substantial conflict of interest.

Your question involves a situation where separate public positions are held simultaneously by a public officer or public employee. This presents an issue of incompatibility of public office, rather than conflict of interest. Questions of incompatibility are normally resolved by application of the common law doctrine of incompatibility of public office, as modified by 1978 PA 566, MCLA 15.181 et seq; MSA 15.1120(121) et seq; OAG 1979-1980, No 5626, p ---- (January 16, 1980). A common law doctrine only applies in the absence of a specific statute governing the situation. Const 1963, art 3, Sec. 7, Myers v Genesee County Auditor, 375 Mich 1; 133 NW2d 190 (1965).

The common law doctrine of incompatibility, as modified by 1978 PA 566, supra, is not applicable to the question you present because there is a specific statutory provision governing outside service by members of the Public Service Commission. The statute which created the Public Service Commission, 1939 PA 3, Sec. 1, MCLA 460.1 et seq; MSA 22.13(1) et seq, provides in pertinent part:

If language employed in a statute is plain, certain and unambiguous, a bare reading suffices and no interpretation is necessary. Board of Road Commissioners v Wayne County Clerk, 293 Mich 229; 291 NW 879 (1940); Washtenaw County v Washtenaw County Board of Supervisors, 341 Mich 388; 67 NW2d 105 (1954). Thus, it is evident that a member of the Public Service Commission, during the member's term, is not permitted to hold any office or be employed by 'any other commission, board, department or institution in this state.'

1933 PA 3, supra, Sec. 1 provides that members of the Michigan Public Service Commission shall be '. . . appointed by the governor with the advice and consent of the senate . . .' Const 1963, art 5, Sec. 6 states that:

If an appointment to office, which requires the advice and consent of the senate, is made during the time the senate is in session the appointee can assume the duties of his office immediately upon the filing of the oath of office. OAG 1966, No 4531, p 393 (December 27, 1966).

It has been held that when a person has been appointed to and accepts a public office under a constitutional provision or statute which makes such office holder ineligible to hold any other public office, the office holder is deemed to vacate the other public office held upon taking the said oath of office. State ex rel Van Antwerp v Hogan, 238 Ala 445; 218 So 2d 258 (1969); McWilliams v Neal, 130 Ga 733; 61 SE 721 (1908).

It is, therefore, my opinion that when the chairperson and member took her oath of office as a member of the Public Service Commission, she assumed that office and vacated the office of chairperson and member of the board of trustees of the Charles Stewart Mott Community College District.

Frank J. Kelley