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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. 5853 February 24, 1981 CITIES: Appearance of city councilperson before board of zoning appeals appointed by city council PUBLIC OFFICERS: Appearance before a board of zoning appeals appointed by a public officer. It is improper for a city councilperson, possessing the appointment power over members of the city board of zoning appeals, to appear before the city zoning board of appeals regarding a petition before the board. Honorable Gary M. Vanek State Representative The Capitol Lansing, Michigan You have requested my opinion on the following question: Is it proper for a city councilperson to address the zoning board of appeals of the city regarding a petition before the board? The Michigan Court of Appeals has addessed a similar situation in Barkey v Nick, 11 Mich App 381, 384, 385; 161 NW2d 445, 447 (1968), where a city commissioner appeared before that city's board of zoning appeals and argued in favor of a special exception in regard to property owned, in part, by his brother. The Royal Oak City Commission has the power of appointment to the board of zoning appeals. The Court stated the question before it as follows: '. . . What is the status of a decision of an administrative board made pursuant to an argument by one charged in part with the appointment of that administrative body? . . .' '. . . It creates an abuse of trust imposed by the assumption of public office and creates a personal pecuniary interest conflicting with the fiduciary duty owed all members of the public. Further, it creates a doubt in the public mind as to the impartiality of the board's action. . . .' 'We agree with the petitioner that there has been an imposition of duress on the members of the board, not as a matter of fact, but as a matter of law, and that, in consequence of that duress, the action of the board is void. The presence of the city commissioner before the board brings with it the presence and powers of his office. . . .' Barkey v Nick, supra, cited Place v Board of Adjustment of Saddle River, 42 NJ 324; 200 A2d 601; 7 ALR3d 1434, (1964), a New Jersey case in which the same question was addressed. In Place v Board of Adjustment of Saddle River, supra, the Supreme Court of New Jersey stated that the appearance of a municipal official before a board over which the official has the power to appoint was patently improper because it influenced the action of the board, and created doubt in the public mind as to the impartiality of the action of the board. In Abrahamson v Wendell, 72 Mich App 80; 249 NW2d 302 (1976), on rehearing 76 Mich App 278, 281-282; 256 NW2d 613, 615 (1977), a township supervisor appeared before the township zoning board of appeals as a contractor on behalf of his customers, seeking a variance from an administrative body over which he shared the power of appointment. The Court held that the township supervisor had acted improperly in addressing the zoning board of appeals, with the opinion stating that even the appearance of impropriety should be avoided by public officials: '. . . [A]s a matter of law, the appearance by the supervisor before the body over which he had appointive powers, at least in part, must be deemed an imposition of duress on the members of the zoning board of appeals and, as a result, the action of the board is void. Barkey v Nick, supra. . . .' 1921 PA 207, Sec. 5, as amended; MCLA 125.585; MSA 5.2935, empowers the legislative body of a city to appoint members to the city board of zoning appeals. It is, therefore, my opinion that it is improper for a city councilperson, possessing the appointment power over membership on the city board of zoning appeals, to address the city zoning board of appeals regarding a petition before the board. Frank J. Kelley Attorney General
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