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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. 6180 August 26, 1983 INCOMPATIBILITY: Office of county controller/office of member of county social services board The office of county controller and the office of member of the county social services board of the same county are incompatible and may not be simultaneously occupied. Nicholas J. Jacobs Prosecuting Attorney County of Gogebic Bessemer, Michigan 49911 You have asked whether the offices of Gogebic County Controller and member of the Gogebic County Social Services Board are incompatible. Two public acts bear directly on your question. As stated in their respective titles, they are: 'AN ACT . . . to prohibit the holding of incompatible public offices; . . .' 1978 PA 566; MCLA 15.181 et seq, MSA 15.1120(121) et seq, and 'AN ACT to prescribe standards of conduct for public officers and employees; to create a state board of ethics. . . .' 1973 Pa 196, as amended; MCLA 15.341 et seq; MSA 4.1700(71) et seq. Section 2 of 1978 PA 566, supra, provides: 'Except as provided in section 3 (1) a public officer or public employee shall not hold 2 or more incompatible offices at the same time.' Incompatible offices are defined in 1978 PA 566, supra, Sec. 1(b), as follows: "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.' The first two statutory standards of incompatibility restate the common law. OAG, 1979-1980, No 5626, p 537, 541-542 (January 16, 1980). The third standard of incompatibility changed the common law by providing that incompatibility occurs when a breach of duty results from performance of other duties. The common law had, instead, based incompatibility on the nature of each public position and the potential for conflict which was inherent in the duties and responsibilities of each position. As previous opinions have concluded, abstaining from an activity does not prevent incompatibility from arising under 1978 PA 566, Sec. 1(b)(iii), supra, funds for various vocational-technical would constitute a breach of duty. OAG, 1979-1980, No. 5626, supra, at 544-545. See also, OAG, 1979-1980, No 5835, p 1131 (December 30, 1980); and OAG, 1981-1982, No 5955, p 311 (August 12, 1981). The second public act which bears upon your question is 1973 PA 196, supra. In defining prohibited conflicts of interest, 1973 PA 196, supra, Sec. 2(6), as amended, provides: 'A public officer or employee shall not engage in or accept employment or render services for a private or public interest when that employment or service is incompatible or in conflict with the discharge of the officer or employee's official duties or when that employment may tend to impair his or her independence of judgment or action in the performance of official duties.' (Emphasis added.) There is no question that the offices of county controller and members of the county social services board are public offices and that persons occupying these positions are public officers under 1973 PA 196, supra, Sec. 1(c). The Board of Ethics was created by 1973 PA 196, supra. Section 5(e) of that Act provides that 'the board shall . . . issue and publish advisory opinions . . .' concerning ethical conduct of public officers. That Board has said that no actual impairment of independence of judgment or action is required by 1973 PA 196, Sec. 2(6), supra, in order to constitute a conflict of interest under the Act. In re Zink, 79-EA-17, p 6. Thus, the standard of 1973 PA 196, Sec. 2(6), supra, is comparable to the common law standard. Under the common law, positions were considered incompatible even though the conflict of duties may arise only on rare occasions. It is the existence of conflicting powers, not the remoteness of their exercise, which is controlling. Northway v Sheridan, 111 Mich 18; 69 NW 82 (1896); Attorney General, ex rel Moreland v Common Council of City of Detroit, 112 Mich 145, 172-173; 70 NW 450 (1897); Weza v Auditor General, 297 Mich 686, 689; 298 NW 368 (1941). With this background, we must analyze the two offices in order to determine whether they are compatible. The question of the incompatibility of a member of specific county and local offices was considered in OAG, 1979-1980, No 5626, supra, p 537, including the office of members of county board of auditors and office of member of county mental health board. At p 546, it was stated that the duties of the county board of auditors: 'are set forth in 1913 PA 275, Sec. 9, MCLA 49.9; MSA 5.559. These duties include the auditing of all claims which are chargeable to the county, the purchasing of supplies for the county and its officers, the examination of the books of accounts of all county officers, and the recommending to the county board of commissioners the number of personnel and respective salary levels necessary for the various county offices.' The function of the county controller is similar to the board of auditors under one of the optional forms of county government available. The duties of the county controller are set forth at 1851 PA 156, Sec. 13b; MCLA 46.13b; MSA 5.336 which states in relevant part: 'The controller shall be the chief accounting officer of the county and shall have charge and supervision of the accounts and accounting of every office, officer and department of the county, the whole or any part of the expense of which are borne by the county. The controller shall see that a system of accounting is installed and properly kept by every office, officer and department of the county. . . . The controller shall keep in his office a general ledger in which shall be set up controlling accounts which shall show at all times the assets and liabilities of the county, and of each and every of its funds. The controller shall examine regularly the books and accounts of the several officers, agents and departments of the county and report his findings to the board of supervisors at such times as they shall prescribe. The controller shall make all purchases of books, stationery, materials and supplies which may be required by the county or its officers. . . .' The function of the county social services board is set forth in 1939 PA 280, Sec. 45(2), MCLA 400.45(2); MSA 16.445(2), which states in relevant part: '(2) The powers and duies of the county social services board shall include all of the following: (a) Supervision of and responsibility for the administration of the county infirmary and county medical care facility and child caring institution, except as provided in sections 55(c) and 58. (b) Conduct, in conjunction with the state department, an annual review of social service programs operating within the county. (c) Development of policy and supervision of the administration of social service programs authorized by the county board of commissioners or financed solely from county funds or county administered funds. (d) Development and administration of employment programs and work training projects complementary to and not in conflict with the state general public relief or categorical assistance policy. (e) Review and submit recommendations on contracts involving programs administered by the state department proposed to be entered into between the state department and public or private agencies within the county including proposed purchases of service contracts from applicant agencies within the county eligible for funding under Title 20 of the social security act, 42 U.S.C. 1397 to 1397f. . . . (f) Act as the agent for the county board of commissioners in the development of coordinated or consolidated approaches to the delivery of social services and cooperative service delivery arrangements between the state department and each public and private social service agency within the county. (g) Represent the county board of commissioners in all negotiations between the county and the state department. (h) Make annual policy recommendations to the Michigan county social services association on annual departmental appropriations, priorities for utilization of Title 20 funds, eligibility standards for general public relief and burial, employment programs, work training projects, and other related issues.' In addition, 1938 PA 280, supra, Sec. 46(1) and (5), provides: '(1) The administration of the powers and duties of the county department shall be vested in a county social services board of 3 members, appointed from persons residing within the county and not holding an elective office, for 3-year terms as follows: 2 members shall be appointed by the county board of commissioners, and 1 member by the director of social services. 5) Members of the board shall be reimbursed for necessary travel and other expenses, and shall be paid such amount as shall be fixed by the board of commissioners or board of county auditors.' (Emphasis added.) The two offices here are in conflict in a number of areas regarding contracts, supplies and expenses. The duties of the county controller include 'supervision of the accounts and accounting of every office, officer and department of the county. . . .' The fulfillment of this duty would require the county controller to supervise the accounts of the county department of social services, as well as the requirement that the controller supervise the accounts of county social service board members. A person serving as both county controller and on the county social services board, therefore, would be in a position where he would be required to supervise his own accounts. Supervision of one's self presents inherent conflicts. In addition, the statute requires that 'the controller shall examine regularly the books and accounts of the several officers, agents and departments of the county and report his findings to the board of supervisors. . . .' The controller would be required to audit his or her own travel and other expenses. Further, the controller would be required to examine the books and accounts of the county department of social services. The controller who sits as county social services board member, therefore, would be responsible for the direction of the department of social services expenditures, then auditing those same expenditures to determine if they were proper. Thus, each of these duties of the county controller conflicts with the function of a county social services board member because the controller would, in effect, be passing upon expenditures made by himself as a member of the board of social services. While I am convinced that the controller would make every effort to remain objective, nevertheless, the public is entitled to the judgment of each of these offices, free from any possible impairment of independent judgment due to dual involvement. It is my opinion, therefore, that the office of county controller, and the office of a member of the county social services board of the same county are incompatible and may not be simultaneously occupied. Frank J. Kelley Attorney General (1)
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