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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. 6214

April 3, 1984

INCOMPATIBILITY:

Office of township trustee and office of superintendent of schools

The offices of township trustee and superintendent of schools of a school district located in the same county are incompatible may not be simultaneously occupied by the same person.

Honorable Gilbert J. DiNello

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion whether the same person may simultaneously serve as a superintendent of a local school district and as a township trustee. This office has been informed that the school district in question is located entirely within the boundaries of the general law township in question. Further, the county in which the school district and township are located has not adopted separate tax rate limitations pursuant to Const 1963, art 9, Sec. 6. Thus, the school district and township are in competition with each other for the allocation of millage by the county tax allocation board. See, Property Tax Limitation Act, 1933 PA 62, MCLA 211.201 et seq; MSA 7.61 et seq.

2 OAG, 1960, No 3504, p 105 (August 2, 1960), ruled that, at common law, the offices of township supervisor and superintendent of schools were incompatible because 'an individual cannot represent and protect the interest of both the township and the school district lying therein before the County Tax Allocation Board. . . .' Township trustees and township supervisors are both members of the township board. RS 1846, C 16, Sec. 70, MCLA 41.70; MSA 5.62.

Subsequently, the Legislature addressed the question of incompatibility of public positions in 1978 PA 566, MCLA 15.181 et seq; MSA 15.1120(121) et seq. Section 1 thereof provides, 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 allowing 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 commands that:

'(1) Except as provided in section 3, a public officer or public employee shall not hold 2 or more incompatible offices at the same time.'

In a letter opinion addressed to Representative DeBeaussaert dated December 16, 1980, it was concluded:

'. . . When a general law township and a local school district are competing with each other for the allocation of millage by the county tax allocation board, where separate tax rate limitations have not been provided for or have expired, an official holding both offices would be involved in a conflict of interest, at cross-purpose with protecting, advancing and promoting the interests of both governmental bodies. Attention to one public office, to the exclusion of the other public office, would result in a breach of duty. This would not occur where a separate tax rate limitation had been provided for because there would be no competition, no conflict of interest, and no breach of duty. Nor would such occur where the township is a charter township, because the tax rate limitations of charter townships are provided for by statute and are not determined by the county tax allocation board. See Const 1963, art 9, Sec. 6; 1947 PA 359, Sec. 27; MCLA 42.27; MSA 5.46(27); and 1933 PA 62, Sec. 11; MCLA 211.211; MSA 7.71.

'It is, therefore, my opinion that the offices of a general law township trustee and member of a board of education of a school district would be incompatible where no separate tax rate limitations have been provided for and the two governmental units are in competition for the allocation of millage before the county tax allocation board.'

This conclusion is equally applicable to the offices of township trustee and superintendent of a school district.

Also, to the extent that the school district and township in question undertake negotiations for or enter into a contract between themselves, the two offices would become incompatible. OAG, 1979-1980, No 5626, p 537 (January 16, 1980).

It must be observed that the allocation of millage by the county tax allocation board occurs on an annual basis. Thus, the incompatibility of public positions in unavoidable. Further, abstension of the officeholder in question from the competition between the school district and the township for millage allocated by the county tax allocation board is no answer to the problem. OAG, 1979-1980, No 5626, supra, at p 545, observed that:

'Thus, a public official's abstension from the responsibilities of his or her office in order to avoid participating in the approval of both sides of an agreement between the two public entities which he or she serves is itself a breach of duty. Only vacation of one office will resolve the public official's dilemma.'

It is my opinion, therefore, that the offices of township trustee and superintendent of schools of a school district located in the same county are incompatible and may not be simultaneously occupied by the same person.

Frank J. Kelley

Attorney General

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