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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. 5927

June 29, 1981

TOWNSHIPS:

Supervisor holding office while bringing suit against the township

There is no legal prohibition against a township supervisor bringing suit against the township he or she serves as supervisor, but the supervisor may not participate in any consideration by the township board of the suit or any disposition thereof.

Honorable Michael J. Griffin

State Representative

The Capitol

Lansing, Michigan

You have asked for my opinion as to whether a township supervisor may continue to hold office if he or she is a plaintiff in a lawsuit against the township.

Access to the courts is a fundamental right in our society. For example, Const 1963, art 1, Sec. 13, provides:

'A suitor in any court of this state has the right to prosecute or defend his suit, either in his own proper person or by an attorney.'

Suits against the township may involve the entire range of human activity, including claims for unpaid compensation, for damages due to negligence relating to nongovernmental activities of the township or where governmental immunity has been statutorily waived, for injunction in cases of threatened irreparable harm or for declaratory relief in cases where rights and obligations are in controversy.

There is no constitutional or statutory prohibition against a township supervisor seeking the assistance of the courts to protect his or her legal rights by filing a lawsuit against the township he or she serves as supervisor.

The township supervisor, as a member of the township board, should refrain from participating in any board action relating to the supervisor's lawsuit.

Similarly, the township supervisor should refrain from participating in any open or closed deliberations of the township board regarding the township's handling of any lawsuit which the supervisor has brought against the township. As noted in OAG, 1981-1982, No 5864, p ___ (March 17, 1981), public officers are subject to fiduciary duties in the conduct of their office. The opinion cites the following quotation from People ex rel Plugger v Township Board of Overyssel, 11 Mich 222, 226-227 (1863), concerning the responsibility of public officers where matters of personal interest are involved:

'[The] public were entitled to their best judgment, unbiased by their private interests, and by accepting the [public] office they became bound to exercise such judgment, and to use their best exertions for the public good, regardless of their own. They had no right, while they continued in office, to place themselves in a position where their own interests would be hostile to those of the public.'

It is my opinion, therefore, that there is no legal prohibition against a township supervisor bringing suit against the township he or she serves as supervisor, but that such supervisor should refrain from participating in the township board's consideration of such suit or any disposition thereof.

Frank J. Kelley

Attorney General


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