STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6269

January 29, 1985

INCOMPATIBILITY:

Offices of village trustee and township clerk

The offices of village trustee and township clerk are not incompatible and may be simultaneously occupied by the same person, provided, however, that no contract is negotiated, approved or amended between the village and the township.

Honorable Wilbur V. Brotherton

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion whether there is an incompatibility of public offices where an individual simultaneously holds the offices of village trustee and township clerk.

1978 PA 566; MCLA 15.181 et seq; MSA 15.1120(121), prohibits a public officer or public employee from holding two or more incompatible public offices at the same time. 1978 PA 566, supra, Sec. 2. A public officer is a person who is elected or appointed to a public office of a city, village, township, or county in this state. 1978 PA 566, supra, Sec. 1(e)(ii).

The offices of village trustee ⁽¹⁾ and township clerk ⁽²⁾ are elective offices and, as such, the individual serving in each office is a public officer for purposes of 1978 PA 566, supra. A village trustee is a member of the village council, 1895 PA 3, c II, Sec. 1, supra, and a township clerk is a township board member, RS 1846, c 16, Sec. 70 as amended; MCLA 41.70; MSA 5.62.

The criteria under which incompatibility of public office is determined is set forth in 1978 PA 566, supra, Sec. 1(b):

In an unpublished opinion of the Attorney General, OAG, 1944, No O-1989, (March 31, 1944), it was concluded that the offices of township supervisor and village president were not incompatible so as to preclude one person from occupying them simultaneously.

OAG, 1945-1946, No O-3083, p 202 (January 29, 1945), concluded that the offices of township clerk and village clerk were not incompatible under the common law.

In 1978, before the effective date of 1978 PA 566, supra, two letter opinions of the Attorney General were issued, involving in each, an individual simultaneously serving in a township office and in a village office. After examining the powers and duties of the offices of village clerk and township treasurer, and finding no statutory prohibition against a person holding the two offices, the letter opinion addressed to Senator Robert D. Young, dated February 23, 1978, concluded there was no incompatibility where an individual simultaneously held the above offices.

On August 21, 1978, in a letter opinion addressed to Senator Harold Scott, review was made of the offices of deputy township clerk and deputy village clerk. Relying on OAG, 1945-1946, No O-3083, supra, and on the common law, it was determined that the duties of deputy township clerk and deputy village clerk did not present a situation of incompatibility.

Similarly, after reviewing the duties of the offices of village trustee and township clerk, it is apparent that there is neither a subordination to nor supervision of one office by the other, and, therefore, the first and second criteria for incompatibility under 1978 PA 566, Sec. 1(b), supra, are inapplicable.

However, the statutorily created third criteria of 1978 PA 566, Sec. 1(b), supra, namely, subparagraph (iii), bases incompatibility upon a breach of duty of public office, which is a significant departure from the common law. Under the common law, 'the authority of two public entities to contract with each other would prohibit the same person from serving both in positions of influence in determining whether to approve, amend or implement the contract' since the person could not give complete loyalty to both public entities he or she served. OAG, 1979-1980, No. 5626, supra, 542. It was the potential for conflict which was determinative at the common law. Under 1978 PA 566, Sec. 1(b)(iii), supra, however, incompatibility arises when performance of the duties of the two offices results in a breach of duty of a public office. There is no incompatibility until the two public entities negotiate or enter into a contract with each other. OAG, 1979-1980, No 5626, supra; OAG, 1979-1980, No 5835, p 1131, 1132 (December 30, 1980).

Authority for local government units to enter into contractual undertakings or agreements is found in 1951 PA 35; MCLA 124.1 et seq; MSA 5.4081 et seq, and 1967 Ex Sess PA 7; MCLA 124.501 et seq; MSA 5.4088(1) et seq. Pursuant to this authority, townships and villages may enter into contractual agreements. An individual who simultaneously serves on a township board by virtue of his or her office as township clerk and as a trustee member of a village council who, in each office, is empowered to vote on a contract between the two public entities could not give complete loyalty to both public entities, and may avoid breaching his or her duty of loyalty only by abstaining from any participation whatsoever with respect to contracts between the said two public entities. A breach of duty would occur if the individual simultaneously holding the two offices failed to protect, advance and promote the interests of both offices. OAG, 1979-1980, No 5626, supra, 543.

It is my opinion, therefore, that the offices of village trustee and township clerk are not incompatible and may be occupied simultaneously by the same person, provided, however, that no contract is negotiated, approved or amended between the village and the township.

Frank J. Kelley

Attorney General