STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6229

June 18, 1984

INCOMPATIBILITY

Office of member of Board of Trustees of Michigan State University and position of administrative assistant to state senator

The office of member of the Board of Trustees of Michigan State University and the position of administrative assistant to a state senator are not incompatible and may be simultaneously occupied by the same person.

Honorable William A. Sederburg

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on the propriety of your administrative assistant continuing to serve in that position if she is elected to the Michigan State University Board of Trustees in November, 1984.

Pursuant to Const 1963, art 8, Sec. 5, a person serving on the Board of Trustees of Michigan State University is a public officer of the state. Attorney General ex rel Cook v Burhans, 304 Mich 108, 111; 7 NW2d 370 (1942). Further, a person who serves as an administrative assistant to a member of the Legislature occupies a public position.

The legislative power is nested in the Senate and House of Representatives, Const 1963, art 4, Secs. 2 and 3. This power may not be delegated to employees of the Legislature.

The common law doctrine of incompatibility of public positions has been modified by the Legislature through the enactment of 1978 PA 566; MCLA 15.181 et seq; MSA 15.1120(121) et seq. OAG, 1979-1980, No 5748, p 900 (July 30, 1980). 'Except as provided in section 3,' a public officer or public employee shall not simultaneously hold two or more incompatible positions. 1978 PA 566.supra, Sec. 2.

1978 PA 566, supra, Sec. 3, in pertinent part, provides:

Thus, the Legislature has seen fit to provide an exception to the prohibition against the holding of incompatible public offices or positions in the case of the election or appointment of a public officer or employee to membership on a governing board of an institution of higher education, which would include service upon the Michigan State University Board of Trustees.

It must be noted, however, that 1978 PA 566, Sec. 3(5), supra, states:

Breach of duty and, therefore, incompatibility of public office in contravention of 1978 PA 566, supra, would arise in the event that the two public entities negotiate or enter into a contract with each other thereby requiring the individual holding a public office or position with each entity to refrain from participating in the contract negotiation or approval. OAG, 1979-1980, No 5626, p 537 (January 16, 1980); OAG, 1979-1980, No 5835, p 1131 (December 30, 1980). An administrative assistant to a state senator would have no dispositive role in either the negotiations of or the approval of contracts between the Senate and the Board of Trustees of Michigan State University should any such contracts exist.

OAG, 1983-1984, No 6134, p 66 (March 17, 1983), and OAG, 1983-1984, No 6135, p 73 (March 17, 1983), concluded that the office of member of the Board of Trustees of Michigan State University and the office of Director of the Office of State Employer, and the office of member of the Board of Trustees of Michigan State University and the office of Director of the Department of Licensing and Regulation, respectively, were incompatible. Finding that 1973 PA 196, as amended; MCLA 15.341 et seq, MSA 4.1700(71) et seq, which prescribes standards of conduct for public officers and employees, applied and must be considered in view of the proscription in 1978 PA 566, Sec. 3(4), supra, prohibiting activity which violates other Michigan law, the Attorney General found in both instances, based on the duties and responsibilities of the offices involved, that '[t]he simultaneous occupation of these offices involves the potential for the impairment of independence of judgment or action,' and is, therefore, a violation of 1973 PA 196, supra, Sec. 2(6). OAG, 1983-1984, No 6134 and 6135, supra.

Responding to the question whether the public office of member of the Board of Trustees of Michigan State University and the public position of director of local finance programs, bureau of local government services, Department of Treasury, may be simultaneously occupied by the same person and, after reviewing the responsibilities of the positions involved, OAG, 1983-1984, No 6218, p 286 (April 18, 1984), concluded the two positions were not incompatible based on the respective duties of each and found no resultant impairment of independence of judgment or action on the performance of the duties of each public position.

However, in view of the fact that the standard of conduct provisions of 1973 PA 196, supra, are inapplicable to members of the Board of Trustees of Michigan State University, OAG, 1983-1984, No 6211, p 246 (March 21, 1984), OAG, 1983-1984, No 6218, supra, the position of administrative assistant to a state senator, must be examined in order to determine whether 1973 PA 196, supra, impacts on your question.

By definition, the standards of conduct set forth in 1973 PA 196, Sec. 2, supra, clearly apply to a public employee. The Legislature, for purposes of 1973 PA 196, supra, has in 1973 PA 196, supra, Sec. 1, defined this term as:

Since an administrative aide to a state senator is not an employee within the executive branch of the state, 1973 PA 196, supra, is not applicable to your question.

It is my opinion, therefore, that the office of member of the Board of Trustees of Michigan State University and the position of administrative assistant to a state senator are not incompatible and may be simultaneously occupied by the same person.

Frank J. Kelley

Attorney General