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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)



Opinion No. 6409

December 18, 1986


County commissioner-member of a city transportation authority

The office of county commissioner and the office of member of a board of a city transportation authority are incompatible and may not be simultaneously occupied by the same person where the county has a contractual relationship with the city transportation authority.

Honorable Michael J. Griffin

State Representative

The Capitol

Lansing, MI 48909

You have requested my opinion whether there is an incompatibility of public offices where an individual simultaneously holds the offices of elected member of the county board of commissioners and appointed citizen member of the board of a newly-formed transportation authority established by a city under MCL 124.351 et seq; MSA 5.3475(1) et seq.

MCL 15.182; MSA 15.1120(122), provides, in pertinent part: "[A] public officer or public employee shall not hold 2 or more incompatible offices at the same time."

In MCL 15.181(b); MSA 15.1120(121)(b), the Legislature has defined the phrase "incompatible offices" to mean

"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 the 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."

A member of a county board of commissioners, along with the rest of the members of the board, is generally responsible for representing the county in managing its affairs. MCL 46.11(p); MSA 5.331(p).

A member of the board of the city transportation authority, along with the other members of the board, is, according to its articles of incorporation, to "appoint an executive director and ... adopt rules, regulations, and policies governing the employees, patrons, and facilities under its jurisdiction."

The articles of incorporation for the city transportation authority indicate that the authority was created to, inter alia, operate a public mass transit system within the city and to do all things necessary for the accomplishment of that purpose.

After reviewing the duties of these two offices, it is apparent that there is neither a subordination to, nor a supervision of, one office by the other, and thus, the first and second criteria for incompatibility under MCL 15.181(b)(i) and (ii); MSA 15.1120(121)(b)(i) and (ii), are inapplicable.

The term "breach of duty," as used in MCL 15.181(b)(iii); MSA 15.1120(121)(b)(iii), was interpreted in OAG, 1979-1980, No 5626, pp 537, 543 (January 16, 1980), as a failure to protect, advance or promote the interests of a public office:

"[T]he common law has long recognized the fiduciary obligation a public official owes the public entity he or she serves. In People v Township Board of Overyssel, 11 Mich 222, 225 (1863), the Court stated:

'... All public officers are agents, and their official powers are fiduciary. They are trusted with public functions for the good of the public; to protect, advance and promote its interests, and not their own. And, a greater necessity exists than in private life for removing from them every inducement to abuse the trust reposed in them, ...'

"Thus, within the context of the incompatibility statute, a breach of duty would occur when the simultaneous holder of two public offices failed to protect, advance and promote the interests of both public offices."

Prior to the recent formation of the city transportation authority which has been voted by the city electors a tax levy consisting of one mill for two years for transportation services within the city, I am advised that a county area transportation council (which included both city and county governments) provided certain public transportation services throughout the county. According to personnel from the Michigan Department of Transportation, the county has retained the city transportation authority to provide the same sort of transportation services (demand response and semi-fixed routes for clients of county human service agencies) that was provided to county residents outside the city by the now-disbanded county area transportation council. Contractual negotiations between units of government formed the basis for a finding of incompatibility of offices in OAG, 1985-1986, No 6269, p 7 (January 29, 1985), which discusses the "breach of duty" criteria of MCL 15.181(b)(iii); MSA 15.1120(121)(b)(iii), in the context of the offices of township clerk and village trustee:

"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." OAG, No 6269, slip opinion, pp 3-4.

It is my opinion, therefore, that the offices of appointed member of the board of a city transportation authority and elected county commissioner are incompatible under MCL 15.181(b)(iii); MSA 15.1120(121)(b)(iii), and may not be occupied simultaneously by the same person where the county has a contractual relationship with the city transportation authority.

Frank J. Kelley

Attorney General

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