STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5774

September 8, 1980

INCOMPATIBLE OFFICES:

Member of township board and member of township board of zoning appeals

PUBLIC OFFICES AND OFFICERS:

Conflict of interest and incompatibility

A member of a township board is expressly permitted by the Legislature to serve simultaneously as a member of the township board of zoning appeals.

Where a member of a township board of zoning appeals owns land within the township which is affected either directly or indirectly by zoning appeals pending before the township board of zoning appeals, the member must disqualify himself or herself when the matter is considered by the township board of zoning appeals and his or her failure to do so shall constitute misconduct for which he or she may be removed from office.

Robert L. Kaczmarek

Prosecuting Attorney

County of Saginaw

Governmental Center

111 S. Michigan Avenue

Saginaw, Michigan 48602

You have requested my opinion on the following questions:

You inform me that the member of the township board who sits on the township's zoning board of appeals has property holdings within the township, which holdings are being developed. You also indicate the individual has abstained from voting upon zoning changes for parcels of land which he owns.

The township zoning act, 1943 PA 184, Sec. 18(1), as amended by 1978 PA 637; MCLA 125.288(1); MSA 5.2963(18)(1) provides, that one member of the township board may be appointed to serve on the zoning board of appeals. Thus, the Legislature has specifically authorized the simultaneous holding by one individual of the two offices in question. However, with respect to conflicts of interest which may arise during the service of a member on the township board of zoning appeals, 1943 PA 184, Sec. 18(1;, supra, further provides:

The quoted language was added to section 18(1), supra, by amendatory 1976 PA 131, as last amended by 1978 PA 637, supra. No language in 1943 PA 184, Sec. 18, supra, describes further the phrase 'conflict of interest.'

The conflict of interest statute, 1968 PA 317; MCLA 15.321 et seq; MSA 4.1700(51) et seq, provides for the conduct of public servants in respect to contracts with public entities, and constitutes 'the sole law in this state . . . in respect to conflicts of interest relative to public contracts. . . .' 1968 PA 317, supra, Sec. 8. A member of the township board who simultaneously occupies the office of zoning board of appeals member is a 'public servant' in both capacities within the meaning of 1968 PA 317, supra, Sec. 1(a). 1968 PA 317, supra, Sec. 2 provides:

1968 PA 317, supra, Sec. 3 declares:

Thus, to the extent an individual who is a public servant enters into contracts with the public entity which the individual serves, the provisions of 1968 PA 317, supra, must be observed.

The language in 1943 PA 184, Sec. 18(1), supra, prohibiting conflict of interest, was construed in Abrahamson v Wendell, 72 Mich App 80; 249 NW2d 302 (1976), rehearing, 76 Mich App 278; 256 NW2d 613 (1977). In Abrahamson, supra, a decision of a township zoning board of appeals was held void where the township supervisor appeared before the zoning board on behalf of parties as their contractor seeking a zoning variance. The township board, of which the supervisor is a member, possessed appointive power concerning membership on the zoning board; 1943 PA 184, Sec. 18(1), supra,. In voiding the decision by the township zoning board of appeals, the Court stated:

It is clear that a member of the township zoning board of appeals must avoid even the appearance of impropriety particularly where, as here, such member of the township board also sits upon the zoning board. Therefore, any conflict of interest between personal profit and public duty must be scrupulously avoided. Thus, under 1943 PA 184, Sec. 18(1), supra, the failure of a member of the township board of zoning appeals to disqualify himself or herself from a vote in which the member has a conflict of interest 'shall constitute misconduct' for which the person 'shall be removable' from office by the township board upon written charges.

In response to your first question, based upon the facts which you have presented, it is my opinion that under 1943 PA 184, Sec. 18(1), supra, and 1968 PA 317, supra, that there appears to be no conflict of interest for a member of the township board to be a member of the township board of zoning appeals, where that person holds title to land within the township, and is involved with its development, provided that such person abstains from voting on zoning changes which affect, directly or indirectly, the person's holdings.

Your second question addresses whether in this instance, the office of member of the township board and simultaneous membership on the township zoning board of appeals is compatible. 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.

It should be noted that 1978 PA 566, supra, was enacted by the same legislature that subsequently enacted 1978 PA 637, which amended 1943 PA 184, Sec. 18(1), supra. 1978 PA 637 did not alter the language in 1943 PA 184, Sec. 18(1), supra, which provides that the township board may appoint a member of the township board as a member of the zoning board, thereby evidencing its manifest intent that the dual holding of the office of member of the township board and member of the zoning board of appeals is permitted and is, therefore, not incompatible. When enacting or amending a statute, the legislature must be presumed to have knowledge of existing statutes and laws. Skidmore v Czapiga, 82 Mich App 689; 267 NW2d 150 (1978), lv den, 403 Mich 810. Generally, statutes which can stand together and relate to the same subject matter, being in pari materia, should be construed together and effect should be given all of them. In Re Jones' Estate, 334 Mich 392; 54 NW2d 697 (1952).

Construing 1978 PA 566, supra, in conjunction with 1943 PA 184, Sec. 18(1), supra, I am constrained to conclude that while the same individual may compatibly serve as a member of the township board and member of the township board of zoning appeals, as a member of the board of zoning appeals, the official must refrain from voting on those matters where a conflict of interest exists.

Because a member of a township board serving also as a member of the township board of zoning appeals and owning and developing land in the township may be affected by decisions made by the township board of zoning appeals involving land not owned by such member, township boards should avoid such appointments, whenever possible, as a matter of policy.

It is, therefore, my opinion that dual holding of the office of member of the township board and membership on the township board of zoning appeals is compatible. The dual office holder shall abstain from voting on matters where a conflict of interest exists, pursuant to 1943 PA 184, Sec. 18(1), supra, and upon failure to do so, the member of the zoning board of appeals is subject to removal from that office.

Frank J. Kelley