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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. 5835 December 30, 1980 INCOMPATIBILITY: Offices of member of the board of trustees of a community college district/member of city council The offices of member of the board of trustees of a community college district and member of a city council are not incompatible, provided that no contract is negotiated or approved between the two governmental entities. Honorable Gilbert J. DiNello State Senator The Capitol Lansing, Michigan You have requested my opinion upon the following question: May a member of the board of trustees of a community college district simultaneously serve as a city councilman of a city located within the district? In a letter opinion to State Representative Jackie Vaughn III, dated September 6, 1972, the offices of city council member and community college district trustee were examined, and under the common law doctrine of incompatibility, the opinion concluded that the two offices were incompatible for the reason that the two governmental units had the authority to contract with each other. The existence of the power to contract was sufficient to give rise to a conflicting duality of interest which made the dual officeholding incompatible. Incompatibility has since been codified in 1978 PA 566; MCLA 15.181 et seq; MSA 15.1120(121) et seq. 1978 PA 566, supra, Sec. 1, defines incompatible offices, in pertinent part: '(b) 'Incompatible offices' means public offices held by a public official which, when the official is performing the duties of any of the public offices held by the official, results in any of the following with respect to those offices held: (i) The subordination of public office to another. (ii) The supervision of 1 public office by another. (iii) A breach of duty of public office.' 1978 PA 566, supra, Sec. 2, prohibits a public officer or public employee from holding two or more incompatible offices at the same time, except as provided in part in 1978 PA 566, supra, Sec. 3: '(1) Section 2 shall not be construed to prohibit a public officer's or public employee's appointment or election to, or membership on, a governing board of an institution of higher education. However, a public officer or public employee shall not be a member of more than 1 governing board of an institution of higher education simultaneously, and a public officer or public employee shall not be an employee and member of a governing board of an institution of higher education simultaneously. '(5) This section shall not be construed to allow or sanction specific actions taken in the course of performance of duties as a public official or as a member of a governing body of an institution of higher education which would result in a breach of duty as a public officer or board member.' 1978 PA 566, Sec. 1, supra, includes boards of trustees in the definition of the governing board of an institution of higher education, and also includes within the latter term community colleges. I do not find that there is supervision or subordination between a board of trustees of a county community college and the governing body of a home rule city located within the county which forms the community college district. The first and second criteria for incompatibility under 1978 PA 566, Sec. 1, supra, do not arise with respect to these two offices. However, 1978 PA 566, Sec. 3(5), supra, does preclude specific actions in the performance of duties, as a public official or as a member of a governing body of an institution of higher education, which would result in a breach of duty. OAG, 1979-1980, No 5626, p 537 (January 16, 1980), discussed incompatibility under the common law and also under 1978 PA 566, supra. With respect to incompatibility arising from breach of duty in the contract situation, it was then stated: 'Where, however, incompatibility arises only when the performance of the duties of the two offices results in a breach of duty of a public office, there is no incompatibility until the two public entities actually enter into contractual negotiations with each other. . . . '. . . It is, therefore, my opinion that a public official may concurrently hold two public offices which are not in a supervisor/subordinate relationship as long as the official refrains from performing the functions of each office in a manner which would be a breach of duty. . . . 'Thus, a public official's abstention from the responsibilities of his or her office in order to avoid participating in the approval of both sides of an agreement between the two public entities which he or she serves is itself a breach of duty. Only vacation of one office will resolve the public official's dilemma.' The occasion for a contract between the community college district and a home rule city may arise, such as under 1966 PA 331, Sec. 145; MCLA 389.145; MSA 15.615(1145). Incompatibility would not arise until the two entities negotiate or enter into a contract. An individual holding both offices may not participate in such negotiation or contract approval. By refraining from participating in contract negotiation or contract approval, the individual holding both offices would not be performing his other duties in either office. This would constitute a breach of duty in contravention of 1978 PA 566, supra, Sec. 11(b)(iii). It is, therefore, my opinion that the office of member of the board of trustees of a community college district and the office of member of a city council are not incompatible, provided that no contract is negotiated or approved between the two entities. Frank J. Kelley Attorney General
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