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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. 5922 June 17, 1981 COUNTIES: Membership on county apportionment commission A person occupying a county office and thereby serving as a member of the county apportionment commission is precluded from also serving as a chairperson of a county political party member of the county apportionment commission. Mr. Wesley J. Nykamp Prosecuting Attorney Ottawa County County Building Grand Haven, Michigan You have requested my opinion concerning a question which may be phrased as follows: How is the county apportionment commission to be constituted when one of the elected county officers who is required by statute to be a member of the commission is also the chairperson of the county committee of one of the county's major political parties who is also required by statute to be a member of the commission? 1966 PA 261, as amended; MCLA 46.401 et seq; MSA 5.359(1) et seq, provides for the apportionment of county commissioner districts by a county apportionment commission. 1966 PA 261, Sec. 1, as last amended by 1970 PA 137; MCLA 46.401; MSA 5.359(1), in pertinent part, provides: 'Within 60 days after the publication of the latest United states official decennial census figures, the county apportionment commission in each county of this state shall apportion the county into not less than 5 nor more than 35 county commissioner districts as nearly of equal population as is practicable and within the limitations of section 2. . . .' In addition, 1966 PA 261, Sec. 3, as amended by 1977 PA 185; MCLA 46.403; MSA 5.359(3), provides in part: '(1) The county apportionment commission shall consist of the county clerk, the county treasurer, the prosecuting attorney, and the statutory county chairperson of each of the 2 political parties receiving the greatest number of votes cast for the office of secretary of state in the last preceding general election. If a county does not have a statutory chairperson of a political party, the 2 additional members shall be a party representative from each of the 2 political parties receiving the greatest number of votes cast for the office of secretary of state in the last preceding general election and appointed by the chairperson of the state central committee for each of the political parties. The clerk shall convene the apportionment commission and they shall adopt their rules of procedure. Three members of the apportionment commission shall be a quorum sufficient to conduct its business. All action of the apportionment commission shall be by majority vote of the commission.' The selection of a chairperson of a county political committee is provided in the Michigan Election Law, 1954 PA 116, Sec. 599, as amended by 1977 PA 219; MCLA 168.599; MSA 6.1599, which states in part: '(3) Within 30 days following the convening of the fall county convention the executive committee, acting without the officers of the county committee who are not otherwise members of the executive committee, shall meet and select a temporary chairperson and temporary secretary. The temporary officers shall serve only during the selection of the officers of the executive committee for the 2 years commencing on January 1 next. The officers shall be a chairperson, a vice-chairperson who shall be of the opposite sex of the chairperson, a secretary, and a treasurer. Candidates for legislative offices consisting of more than 1 county may give a written proxy to other members of the executive committee.' (Emphasis added.) Const 1963, art 7, Sec. 4 provides that in each organized county the people shall elect a sheriff, clerk, treasurer, register of deeds (unless combined with the office of clerk) and prosecuting attorney. The duties and responsibilities of these officals are established by statute. The offices of county clerk, county treasurer, and prosecuting attorney, whose occupants are by statute required to be members of the county apportionment commission, are constitutional public officers. OAG, 1979-1980, No 5587, p 454 (October 26, 1979). Public officers are required to act in the public interest and within the authority granted to them. Veldman v Grand Rapids, 275 Mich 100; 265 NW 790 (1936). A public office is a public trust and a fiduciary standard is imposed on public officials. Barkey v Nick, 11 Mich App 381; 161 NW2d 445 (1968). Public officials have a duty to perform as required by the Constitution or statutes concerning the public. It should also be noted that OAG, 1975-1976, No 4969, p 352 (March 24, 1976), concluded: 'A county political party executive committee treasurer does not hold a public office; it is therefore not incompatible for a person to simultaneously serve as sheriff and county political party executive committee treasurer.' However, there is no indication that the Legislature intended that a member of the county apportionment commission may serve in multiple capacities on that body or exercise more than one vote. Therefore, an individual who is the county political party chairperson and an elected county official, required to serve on the county apportionment commission by virtue of his or her county office, must fulfill the duties of the public office of county clerk member of the apportionment commission ad may not simultaneously serve on the apportionment commission in the capacity of chairperson of a political party. The Legislature has made no provision for a political party vice-chairperson to serve in such instance and the statute may not be rewritten to so provide. Because the elected county official is, therefore, ineligible to serve as the statutory county political party chairperson for the purposes of 1966 PA 261, Sec. 3, supra, the state central committee of the political party is authorized to appoint a person, otherwise qualified, to serve as that political party's representative on the county apportionment commission. OAG, 1981-1982, No 5906, p 185 (May 13, 1981). It is my opinion, therefore, that the county clerk, county treasurer and prosecuting attorney must sit on the county apportionment commission only in the official capacity in which they were duly elected by the people. It is further my opinion that a person may not sit on the county apportionment commission in the dual role of elected officer of the county and as chairperson of a county political otherwise qualified, to serve as that political party's representative on the county apportionment commission. The Legislature is free to amend the statute to provide for another method of selection of the county political party representative. Frank J. Kelley Attorney General
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