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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. 5926

June 24, 1981

CONFLICT OF INTEREST:

County commissioner participating in selection of member of a county board of road commissioners where commissioner is a litigant against the road commission

A county commissioner participating in the selection of a member to serve on a county road commission is not involved in a conflict of interest because the commissioner is also a party plaintiff in a lawsuit brought against the county road commission to compel the road commission to perform its duties.

Honorable Edgar Geerlings

State Representative

The Capitol

Lansing, Michigan

You have requested by opinion on the following question:

Is it a conflict of interest for a member of a county board of commissioners to vote on the appointment of a member to the county board of road commissioners if the county commissioner is a member of a group which has filed a lawsuit against the county board of road commissioners involved?

The conflict of interest statute which applies to the public servants involved in your question is 1968 PA 317; MCLA 15.321 et seq; MSA 4.1700(51) et seq. (1) 1968 PA 317, supra, provides for the conduct of public officials in regard to contracts with public entities.

1968 PA 317, supra, Sec. 8, provides in part:

'This act shall supersede all local charter provisions, whether incorporated in legislative acts or local charters, which relate to the matter of confict of interest. It is the intention that this act shall constitute the sole law in this state and shall supersede all other acts in respect to conflicts of interest relative to public contracts, involving public servants. . . .'

A member of a county board of commissioners is a 'public servant' pursuant to 1968 PA 317, supra, Sec. 1(a), and the county and its boards and commissions are 'public entities' as defined by 1968 PA 317, supra, Sec. 1(b). However, your inquiry does not involve a contract between a public servant and a public entity. Thus, the situation involved in your inquiry is not a conflict of interest under 1968 PA 317, supra. (2)

Therefore, a review must be made of the common law regarding the fiduciary obligation a public official owes the public entity which he serves. In People ex rel Plugger v Township Board of Overyssel, 11 Mich 222, 225 (1863), the Michigan Supreme Court stated:

'[Fidelity] in the agent is what is aimed at, and as a means of securing it, the law will not admit the agent to place himself in a situation in which he may be tempted by his own private interest to disregard that of his principal. . . . All public officers are agents, and their official powers are fiduciary. They are trusted with public functions for the good of the public; to protect, advance and promote its interests, and not their own. And, a greater necessity exists than in private life for removing from them every inducement to abuse the trust reposed in them. . . .'

In Woodward v City of Wakefield, 236 Mich 417, 420; 210 NW 322, 323 (1926), the Supreme Court declared:

'[It] is the policy of the law to keep municipal officials far enough removed from temptation as to insure the exercise of their unselfish interest in behalf of the municipality. . . .'

In Abrahamson v Wendell, 72 Mich App 80, 83; 249 NW2d 302, 304 (1976), rehearing, 76 Mich App 278, 282; 256 NW2d 613 (1977), the Court stated:

'[D]ecision makers . . . must seek to avoid even the appearance of impropriety.'

It is my opinion, therefore, that a member of a county board of commissioners who also is a member of a group which has filed a lawsuit against the county board of road commissioners would not, by that fact alone, be in a conflict of interest which would require the county commissioner to refrain from participating in the discussion and voting on the appointment of a member to the county board of road commissioners.

Frank J. Kelley

Attorney General

(1) There was an attempt to repeal 1968 PA 317, supra, by 1975 PA 227, Sec. 191; MCLA 169.191; MSA 4.1701(191), but 1975 PA 227 was found to be unconstitutional in its entirety for embracing more than one object contrary to Const 1963, art 4, Sec. 24. Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich 123; 240 NW2d 193 (1976).

(2) I find, for the same reason, that 1851 PA 156, Sec. 30, as amended; MCLA 46.30; MSA 5.353, is not applicable to the situation involved in your inquiry.

 

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