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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. 6302 June 17, 1985 INCOMPATABILITY: Village councilperson--township board member Village councilperson--county commissioner The offices of village councilperson and either township board member or county commissioner are incompatible and may not be simultaneously occupied by the same person when the village has contracts with the township or the county. Honorable Richard D. Fessler State Senator Capitol Building Lansing, Michigan 48909 You have requested my opinion as to whether an individual may simultaneously serve as a village councilperson and as either a township board member or a county commissioner. Accompanying your request was material as to the local units in question which indicates that the village and the township have agreements regarding public safety services, water service, sanitary sewage disposal services and other municipal services. Similarly, this material indicates that the village and the county have agreements regarding cooperation in the use of federal community development funds and the development of pollution control facilities for sewage disposal systems. With some exceptions not pertinent to your question, MCL 15.182; MSA 15.1120(122), prohibits a public officer from holding two or more incompatible public offices at the same time. MCL 15.181(b); MSA 15.1120(121)(b), defines the term 'incompatible offices' as follows: '(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 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.' OAG, 1985-1986, No 6269, p ___ (January 29, 1985), considered whether an individual may simultaneously hold the offices of village trustee and township clerk (1) and concluded: '[T]he 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.' [Emphasis added.] [p 4, Slip Opinion.] As the underscored language indicates, the existence of contracts between the governmental entities involved requires a contrary conclusion. Participation in, or abstention from, the proceedings regarding these public contracts as an official of both contracting governmental units would involve a breach of duty. As was stated in OAG, 1979-1980, No 5835, p 1131, 1132 (December 30, 1980): 'An individual holding both offices may not participate in such negotiation or contract approval. By refraining from participating in contract negotiation or contract approval, the individual holding both offices would not be performing his other duties in either office. This would constitute a breach of duty in contravention of 1978 PA 566, supra, Sec. 11(b)(iii).' A similar conclusion was reached in OAG, 1979-1980, No 5626, p 537, 545 (January 16, 1980): '[A] public official's abstention 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.' [Emphasis added.] Given the existence of these contracts between the village, on the one hand, and the township and the county on the other hand, a person simultaneously holding the position of village councilperson, along with the position of either township board member or county commissioner, would necessarily be confronted with an unacceptable choice: vote on the contracts or abstain from such a vote. Either choice results in a breach of duty to one or both of the public offices he holds. OAG, Nos. 5835 and 5626, supra. It is my opinion, therefore, that the offices of village councilperson and either township board member or county commissioner are incompatible and may not be simultaneously occupied by the same person when the village has contracts with the township or the county. Frank J. Kelley Attorney General (1)
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