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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)



Opinion No. 5955

August 12, 1981


Offices of deputy sheriff and township trustee

The offices of deputy sheriff and township trustee are not incompatible and may be occupied simultaneously by the same person in the absence of good faith negotiation for a contract between the county sheriff and the township board.

Honorable Ralph Ostling

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion upon the following question:

May a deputy sheriff simultaneously serve as trustee of a township board?

Incompatibility of a public office is governed by 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 1 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 a public employee from holding two or more incompatible offices at the same time, except as otherwise provided in said act.

Deputy sheriffs are employed by the county sheriff and the county board of commissioners, and would not be subordinate to or subject to the supervision of a township board, of which a township trustee is a member. Similarly, a township trustee would not be subordinate to, nor supervise, a deputy sheriff employed by the county. This is further illustrated by the statute which authorizes townships to enter agreements with the county sheriff for the provision of law enforcement services in the township. See 1945 PA 246, Sec. 1; MCLA 41.181; MSA 5.45(1), which provides, in pertinent part:

'The township board of a township . . . may by resolution appropriate funds and call upon the sheriff of the county in which the township is located to provide special police protection for the township. The sheriff shall, when called upon, provide special police protection for the township and enforce all local township ordinances, to the extent that township funds are appropriated for the enforcement. Special township deputies appointed by the sheriff shall be under the jurisdiction of and solely responsible to the sheriff. . . .' [Emphasis added.]

I do not find that there is supervision or subordination between a township trustee and a deputy sheriff, and, therefore, the first and second criteria for incompatibility under 1978 PA 566, Sec. 1, supra, do not arise with respect to offices.

OAG, 1979-1980, No 5626, p 537 (January 16, 1980), discussed incompatibility under the common law and also under 1978 PA 566, supra. That opinion concluded, in part, that a breach of duty may arise when an officer serving in a dual capcaity had occasion to participate in the good faith negotiation or approval of such a contract in both capacities or to act to approve the contract. Abstention from either negotiating or voting on the contract would constitute a breach of duty in relation to the township office.

It is my opinion, therefore, that the offices of deputy sheriff and township trustee would not be incompatible in the absence of the county sheriff negotiating in good faith a contract with the township on behalf of the sheriff's department.

Frank J. Kelley

Attorney General

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