STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5748

July 30, 1980

PUBLIC OFFICES AND OFFICERS:

Incompatibility--member of State Board of Education and associate superintendent of schools of a school district

An associate superintendent of schools of a school district may seek election or appointment to the State Board of Education, but if elected or appointed, the same person may not simultaneously serve as an associate superintendent of schools of a school district and as a member of the State Board of Education because the two positions are incompatible.

Honorable Kerry Kammer

State Senator

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the following questions:

1954 PA 116, Sec. 281; MCLA 168.281; MSA 6.1281 provides that, '[n]o person shall be eligible to membership on the state board of education . . . who is not a registered and qualified elector of this state.' Thus, any registered and qualified elector of the State of Michigan is eligible to seek election or appointment to the State Board of Education. OAG, 1963-1964, No 4309, p 459, 460 (September 11, 1964).

It is, therefore, my opinion, in answer to your first question, that an associate superintendent of schools of a school district may seek election or appointment to the State Board of Education.

Turning to your second question, OAG, No 4309, supra, pp 463-465, 468 reviewed the duties of superintendent of schools of school districts and the supervisory authority of the State Board of Education over school districts and concluded that the office of member of the State Board of Education and the office of superintendent of schools of the school district and member of the administrative staff of a community college are incompatible and may not be occupied by the same person simultaneously. The rationale of that opinion is that the positions of school district superintendent and member of the administrative staff of a community college are subordinate to the office of member of the State Board of Education and subject to the supervisory authority of the State Board of Education over school districts and community colleges as declared by the people in Const 1963, art 8, Secs. 3 and 7.

It is clear that, as stated in OAG, No 4309, supra, the public positions of associate superintendent of schools of a local school district and member of the State Board of Education may not be held simultaneously under the common law doctrine of incompatibility of public positions.

The Legislature enacted 1978 PA 566, MCLA 15.181 et seq; MSA 15.1120(121) et seq, which modified the common law doctrine of incompatibility of public positions. However, 1978 PA 566, supra, Sec. 1 did not alter that phase of the common law doctrine of incompatibility which precludes holding two public positions where one is subordinate to and subject to supervision by the other. OAG, 1979-1980, No 5626, p ___ (January 16, 1980)

In answer to your second question, it is, therefore, my opinion that the positions of associate superintendent of schools of a school district and member of the State Board of Education are incompatible and may not be occupied simultaneously by the same person.

Frank J. Kelley