STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6101

September 14, 1982

INCOMPATIBILITY:

Teacher of a local school district serving on the board of education of an intermediate school district

A teacher employed by a local school district may simultaneously serve as a member of the board of education of an intermediate school district to which the local school district is constituent.

If the teacher serves on a student's individualized educational planning committee, the two positions of teacher of the local school district and member of the board of education of such intermediate district would be incompatible.

Honorable Tom Alley

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion whether a person may simultaneously serve as a teacher employed by a local school district and as a member of an intermediate school district board of education where the local school district is constituent to the intermediate school district. ⁽¹⁾

In 1978 PA 556, MCLA 15.181 et seq; MSA 15.1120(121) et seq, the Legislature has prohibited the holding of incompatible public positions and set forth the standards for determining such incompatibility. See, OAG, 1979-1980, No 5626, p 537 (January 16, 1980). These standards modified, to some extent, the prior common law doctrine of incompatibility of public positions.

The Legislature has provided in 1978 PA 556, supra, Sec. 1(b):

Members of boards of education of constituent school districts are expressly authorized by 1976 PA 451, supra, Sec. 612(1) to serve simultaneously on intermediate school district boards of education. OAG, 1977-1978, No 5230, p 237 (October 3, 1977). Also, in 1978 PA 556, supra, Sec. 3(2), the Legislature has expressly permitted a school district board of education member to simultaneously serve as a superintendent of schools in another school district. The Legislature has not explicitly addressed the simultaneous holding of the two public positions here in question. Thus, we must apply the provisions of 1978 PA 556, supra, Sec. 1(b), in light of the powers and duties of those two public positions.

A review of 1976 PA 451, supra, demonstrates that the public positions of teacher in a local school district and member of an intermediate school district board of education are neither subordinate to one another nor involve the supervision of one public position by the other. ⁽²⁾ The teacher is hired and supervised by the board of education in the local school district where he teaches, not by the intermediate school district board of education upon which he serves.

Under the common law, two public positions were incompatible if there may be an inherent inconsistency in the functions of the two positions. A breach of duty of public position now occurs only when the actual performance of the duties of the two positions results in an inherent inconsistency between the duties of such positions. OAG, 1979-1980, No 5626, supra.

OAG, 1969-1970, No 4598, p 46 (April 11, 1969), concluded that there was no inherent inconsistency in holding the positions of teacher in one local school district and a member of the board of education of another local school district under the common law of incompatibility of public positions, even though the two school districts in question could contract with each other. A teacher is under a contractual obligation to teach students, not to negotiate contracts on behalf of his employer board of education with other boards of education. Thus, the duties of the two public positions here in question are not inherently inconsistent with regard to contracts between the local school district and the intermediate school district.

My office has been informed that the intermediate school district in question contracts with its constituent districts to provide special education and vocational education services to students of the constituent local school district. Pursuant to these contracts, the intermediate school district receives its costs for providing the services from the constituent local school districts less intermediate school district special education millage property tax revenue and state aid paid to the intermediate school district for providing the services in question. Those contracted services are provided by employees of the intermediate school district and do not involve the services of the constituent school district English teacher in question who is also a member of the intermediate school district board of education. Based upon these facts, there is no breach of duty with regard to the instant contracts for special education and vocational education services.

Local school districts and intermediate school districts, generally, appear before the county tax allocation board in connection with the allocation of the fifteen mill limitation established by Const 1963, art 9, Sec. 6. See, 1933 PA 62; MCLA 211.201 et seq; MSA 7.61 et seq. However, in the instant situation, the electors of the county have voted to establish separate tax limitations for the county, townships, intermediate school district, and school districts, thereby abolishing the county tax allocation board and eliminating any incompatibility problems arising from appearing before the county tax allocation board. See, OAG, 1979-1980, No 5626, supra, at p 539, n 1. Moreover, a teacher is not an officer of the employing school district and would have no duty to represent the school district's position before the county tax allocation board. See the September 11, 1975 letter opinion to Senator Byker; and the July 16, 1976 letter opinion to Mr. Batway. The opinion to Mr. Batway concluded that simultaneously occupying the public positions of intermediate school district board of education member and principal of a local school district constituent to the intermediate school district did not violate the common law doctrine of incompatibility of public positions.

It is possible that a student receiving special education services may spend a part of the student day in the English teacher's class and, thus, the English teacher may be involved with one or more employees of the intermediate school district with the student's individualized educational planning committee (IEPC), 1980 AACS, R 340.1721b. The IEPC is a legally required meeting of school district personnel and a handicapped student's parents to determine, inter alia, an appropriate educational program for the handicapped student. 1980 AACS, R 340.1721d and R 340.1721e and Board of Education of the Hendrick Hudson Central School Dist v Rowley, 80 USLW, 4925, 4927 (US Sup Ct, 1982).

In the context of an IEPC, the teacher is discharging his duty as an employee of the constituent school district as a member of a committee that also has as members employees of the intermediate school district board of education of which he is a member. Further, the intermediate school district board of education may appeal the determination of the IEPC, with regard to the appropriate educational program for the handicapped student in question, to an impartial hearing officer. 1980 AACS, R 340.1722a, R 340.1722b, and R 340.1724, pp 268, 271. In such a situation, the actual performance of the duties of the two public positions gives rise to the supervision and subordination of one public position by another public position in contravention of 1978 PA 556, Sec. 1(b)(i) and (ii), supra.

It is my opinion, therefore, that a person may simultaneously serve as a teacher employed by a local school district and as a member of the board of education of an intermediate school district to which the local school district is constituent. It is my further opinion that if the person in question, in his or her role of an English teacher, serves on a student's individualized educational planning committee, the positions of teacher in the local school district and member of the board of education of such intermediate district would be incompatible.

Frank J. Kelley