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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. 6075

June 14, 1982


Const 1963, art 4, Sec. 8--employment of legislator by community college district prohibited


Employment of legislator by community college district

Const 1963, art 4, Sec. 8 precludes a member of the Legislature from accepting employment by a community college district.

Honorable Doug Ross

State Senator

State Capitol

Lansing, Michigan 48909

You have requested my opinion as to whether a conflict of interest is present when a member of the Legislature, while serving in that body, accepts employment at a state community college as a part-time instructor.

While Const 1963, art 4, Sec. 9 prohibits a legislator from receiving any appointment within this state from the Governor or any other state authority during the legislator's term of office and while Const 1963, art 4, Sec. 10 prohibits state legislators from being interested directly or indirectly in any contract with the State which shall cause a substantial conflict of interest, most pertinent to your inquiry is Const 1963, art 4, Sec. 8 which provides:

'No person holding any office, employment or position under the United States or this state or a political subdivision thereof, except notaries public and members of the armed forces reserve, may be a member of either house of the legislature.' [Emphasis added.]

Thus, the Michigan Constitution clearly declares the public policy of this State to be 'that prohibition of duality in officeholding by members of the Legislature extends to public employment or position as well as to public office.' OAG, 1963-1964, No 4309, p 459 (September 11, 1964).

Resolution of your question therefore requires consideration of whether employment as a part-time instructor at a public community college constitutes employment 'under this state or a political subdivision' of this State. To the extent a public community college may be regarded as a state agency or a political subdivision of this State, clearly Const 1963, art 4, Sec. 8 prohibits a legislator from accepting a position of employment with such an entity.

It is noted that in Const 1963, art 8, Sec. 7, the people have provided that the 'Legislature shall provide for the establishment and financial support of public community and junior colleges which shall be supervised and controlled by locally elected boards.'

The nature of a community college may be determined by examination of the enabling statute creating community college districts, 1966 PA 331; MCLA 389.1 et seq; MSA 15.615(101) et seq, authorized pursuant to Const 1963, art 8, Sec. 7, supra. A community college district is a public body corporate, whose purpose is to provide education to persons in the local community. 1966 PA 331, supra, Secs. 103, 105. Under 1966 PA 331, supra, Sec. 11, a community college district is created by a vote of the local electors. A maximum annual tax rate is established by vote of the people as is the membership of the governing community college district board of trustees. 1966 PA 331, supra, Secs. 14 and 15. As to community college districts located in intermediate school districts having a population of more than 1,000,000, the Legislature established the community college district, 1966 PA 331, supra, Sec. 81, to be represented by a locally elected board of trustees, 1966 PA 331, supra, Sec. 82.

The question whether community college districts are state or local agencies was the subject of a letter opinion issued to Auditor General Albert Lee on February 6, 1975. In ruling that community college districts are not agencies for the purpose of determining whether post audits of these institutions are to be conducted by the auditor general pursuant to Const 1963, art 4, Sec. 53, this office applied the test for distinguishing state from local agencies formulated by the Michigan Supreme Court in Schobert v Inter-County Drainage Board, 342 Mich 270; 69 NW2d 814 (1955). In that case the court set forth the following principles:

'[I]t is clear that the term 'State officer' is so broad as to embrace the literally hundreds of officials within the State who perform, in varying degrees, functions having their authorization in constitutional provisions and statutory enactments applicable to the State at large or partaking to some extent of the police power of the State. Thus, in a sense, and to the extent that the performance of their official functions involves the administration of State laws, county and municipal officials, prosecutors, judges, treasurers, police and school officials, drain commissioners and hosts of others are all State officials.

'On the other hand, as opposed to such broad usage, the use of the term 'State officer' in the Michigan Constitution (1908) is specific. We start with the proposition (article 4, Sec. 1) that the powers of government are divided into 3 departments, legislative, executive, and judicial. . . .

'We cannot conclude, in view of foregoing, that the term 'State officer' as employed in our fundamental charter embraces the broad usage tendered to us. . . .

'It is clear from what has this far been observed that in one sense of the term a State officer is one who exercises a portion of the sovereign powers on a State-wide basis, normally from the seat of government, such as the attorney general, while in another, a State officer is any official whatsoever whose duties embrace the implementation of sovereign policy, however expressed, such as the village constable. [citations omitted] From such dichotomy we derive no comfort, however, for it is equally clear that the term 'State officer' will vary in content with its use and context, and that the same officeholder may be an officer of the State for one purpose and not for another. Thus we might well hold that a county, township, or municipal election official is a State officer as concerns the duty of State officers to administer constitutional rights equally to all races (e.g., Mitchell v. Wright, 69 F Supp 698) while at the same time denying that he is a State officer to the extent that a vacancy in his office could only be filled by the governor by and with the advice and consent of the senate.

'We are not so bold as to attempt an all-embracing definition of 'State officer.' The precise delination of the term will await our rulings as cases are brought before us. In each instance the meaning of the term 'State officer' will be governed by the purpose of the act or clause in connection with which it is employed. . . .' 342 Mich at 280-282. [Emphasis supplied.]

The letter opinion applied the Schobert analysis to conclude that community college districts were local public agencies based on their local characteristics: 1) they serve a local student body; 2) members of the board of trustees are elected locally; and, 3) property taxes in support thereof are locally assessed. Letter Opinion to Auditor General Albert Lee, supra, p. 3.

It is evident from the above-outlined statutory scheme and authorities that a community college district is a 'political subdivision' of this State within the purpose of Const 1963, art 4, Sec. 8. Further support for this conclusion is offered by Doan v Kellogg Community College, 80 Mich App 316; 263 NW2d 357 (1977). In Doan, supra, the Michigan Court of Appeals was asked to decide the question of whether an action brought against a community college must be filed in the Michigan Court of Claims, which body has exclusive jurisdiction over all claims made against the State and its departments and agencies. In ruling that the Court of Claims did not have jurisdiction over community college districts, the court reasoned that community colleges are more akin to political subdivisions which provide primarily local services by boards elected locally than to a state agency.

Thus, community college districts are public agencies which fall within the ambit of Const 1963, art 4, Sec. 8, supra, and a community college district is impacted by the prohibition expressed by the people in Const 1963, art 4, Sec. 8 that members of the Legislature shall not accept a position or employment with such an entity.

OAG, 1975-1976, No 5047, p 495 (June 11, 1976) applied Const 1963, art 4, Sec. 8 to preclude a member of the Legislature from serving on the board of directors or the project district council of an economic development corporation, an agency and instrumentality of a municipality.

It is my opinion, therefore, that Const 1963, art 4, Sec. 8 precludes a member of the Legislature from accepting employment by a community college district.

Resolution of your question on this ground makes unnecessary any consideration of the application of Const 1963, art 4, Secs. 9 and 10 to your question.

Frank J. Kelley

Attorney General

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