[ Previous Page]  [ Home Page ]

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. 6418

January 13, 1987

INCOMPATIBILITY:

City treasurer--member of county board of commissioners

Dean of community college--member of county board of commissioners

City attorney--member of county board of commissioners

The office of city treasurer and the office of member of the county board of commissioners are incompatible and may not be simultaneously occupied by the same person.

The position of dean of a community college and the office of member of the county board of commissioners are incompatible and may not be simultaneously occupied by the same person.

The office of city attorney and the office of member of the county board of commissioners are not incompatible and may be simultaneously occupied by the same person, provided that no contract is negotiated or approved between the city and county, and provided there is no legal conflict between the city and the county.

Honorable R. Robert Geake

State Senator

The Capitol

Lansing, Michigan 48913

You have requested my opinion with respect to whether the office of county commissioner is incompatible with any of the following offices of other governmental units in the same county:

(1) city treasurer,

(2) dean of a community college, or

(3) city attorney.

The Legislature has modified the common law relating to incompatibility of public offices and public positions. These changes are codified in 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq.

MCL 15.182; MSA 15.1120(122), provides that "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, for the purposes of the Act, 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, result in any of the following with respect to those 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."

When the provisions of MCL 15.181; MSA 15.1120(121), and MCL 15.182; MSA 15.1120(122), are read against the background of the title to the Act, it is clear that the Legislature intended the Act to apply to both public officers and public employees. OAG, 1979-1980, No 5626, p 537, 541 (January 16, 1980).

County Commissioner/City Treasurer

It is the responsibility of the city treasurer each year to collect all taxes on real and personal property located in the city which are due to the county. MCL 211.54; MSA 7.98, provides:

"Within 20 calendar days after the time specified in his warrant, the township treasurer or other collecting officer shall pay to the county treasurer all state and county taxes collected, and within the same time shall make his statement of unpaid taxes upon real and personal property as required in section 55."

The city treasurer is required to post a bond satisfactory to the county treasurer. MCL 211.43(2); MSA 7.84(2). If the city treasurer fails to pay to the county all taxes collected which are due to the county, the city may be held liable for the deficiency. Ottawa County v City of Holland, 269 Mich 192; 256 NW 851 (1934). The supervisory relationship between the city treasurer and the county treasurer on the annual settlement day is summarized in VerBurg, Managing the Modern Michigan Township (MSU, 1981), p 83. While that summary refers only to township treasurers, it is equally applicable to city treasurers in view of MCL 211.87 and 211.107(1); MSA 7.141 and 7.161(1). VerBurg states:

"Settlement day is the time when township treasurers deliver a final report of collections for the season. The day is supposed to occur between March 1 and March 30, although it sometimes extends beyond that date. The process is largely one in which the township and county treasurers determine the balance owed to the county at that time. Generally, this will include the final distribution of regular collections and those received after March 1. The settlement will also involve a review of taxes being returned delinquent. The county treasurer then assumes responsibility for collecting taxes on real property.

"Township treasurers may be somewhat intimidated with the matter of settlement; in effect, it is a kind of review of one's work by an outsider."

Thus, the city treasurer is, in effect, the county's agent in collecting the county's taxes on property located in the city, subject to the supervision of the county through the county treasurer and generally through the county board of commissioners. The overall responsibility of the county board of commissioners as to county business is set forth in MCL 46.11(p); MSA 5.331(p), which empowers the board to represent the county and to have the care and management of the property and business of the county if other provisions are not made. The supervision by the county of the city treasurer's collection activities is necessary to verify that all applicable county taxes are collected by the city treasurer and are transferred to the county.

It is my opinion, therefore, that county supervision of the city treasurer pertaining to the collection of county taxes by the city treasurer necessitates the conclusion that simultaneous holding of the offices of city treasurer and member of the county board of commissioners would be contrary to the prohibition against occupying incompatible offices in MCL 15.182; MSA 15.1120(122).

County Commissioner/Community College Dean

Counties are authorized to contribute to community colleges. MCL 389.125(c); MSA 15.615(1125)(c), and MCL 380.1607; MSA 15.41607 (as successor to the former MCL 340.794; MSA 15.3794). As such, a community college dean, when sitting as a member of the county board, would have to balance the duties as a member of that body to legislate for the entire county as against loyalty to the community college and the educational constituency which it serves.

The county board of commissioners each year is required to review the community college's request for a tax levy to determine that such requested amount is authorized by law. In Delta College v Saginaw County Board of Commissioners, 395 Mich 562, 567; 236 NW2d 425 (1975), the court noted the limited scope of the county board of commissioners' review of a community college's request for a tax levy:

"That clear, legal and compulsory duty is found in Michigan's general property tax law MCL 211.37; MSA 7.55:

" '[The board of commissioners] shall direct that such of the several amounts of money proposed to be raised for township, school, highway, drain and all other purposes as shall be authorized by law, be spread upon the assessment role of the proper townships, wards and cities.' " (Emphasis added.)

MCL 211.37; MSA 7.55, provides, in addition to the portion quoted above, that the county board of commissioners examine the documentation for any community college tax levy and that the board hear any taxpayer objections to such tax levy:

"The county board of commissioners, at its annual session in October in each year ... shall ... examine all certificates, statements, papers, and records submitted to it, showing the moneys to be raised in the several townships for school, highway, drain, township, and other purposes. It shall hear and duly consider all objections made to raising any such moneys by any taxpayers to be affected thereby.... It may refer any or all the certificates, statements, papers, records, and proceedings to the prosecuting attorney, whose duty it shall be to examine the same and without delay report in writing his opinion to the board."

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, supra, at 543, 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."

It is my opinion, therefore, that the position of community college dean would be incompatible with that of member of the county board of commissioners contrary to MCL 15.182; MSA 15.1120(122), because of the conflicting loyalties amounting to a breach of duty which could result from the dean's evaluating requests to the county board for contributions to the community college and in considering challenges as to whether the tax levies of the community college are authorized by law.

County Commissioner/City Attorney

A county commissioner serves on the board of county commissioners, and a city attorney represents the city in legal matters and advises city officials as to legal questions. In analyzing the three statutory tests of incompatible offices, it is noted that supervision and subordination are not involved between these two offices.

The third statutory test is whether there is a breach of duty of public office. In contrast to the previous common law of incompatible offices which involved an analysis of two public offices for potential conflict, MCL 15.181 et seq; MSA 15.1120(121) et seq, refers to activity in two offices which results in a breach of duty. In OAG, 1985-1986, No 6269, p 7 (January 29, 1985), it was concluded that the offices of village trustee and township clerk are not incompatible and may be occupied by the same person, provided, however, that no contract is negotiated or approved between the village and the township:

"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)." (Emphasis in original.)

In this connection, it is instructive and pertinent to observe that in OAG, 1979-1980, No 5626, p 537, 543 (January 16, 1980), it was stated:

"[W]ithin 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."

That opinion concluded the discussion of the incompatibility statute, 1978 PA 566, supra, with the following statement:

"[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." OAG, 1979-1980, No 5626, supra, at 545.

It is my opinion, therefore, that the offices of city attorney and member of the county board of commissioners are not incompatible and, thus, may be occupied by the same person, provided that no contract is negotiated or approved between the city and the county, and provided that there is no actual legal conflict between the city and the county. It is my further opinion that within the context of the incompatibility statute, a breach of duty would occur where the simultaneous holder of the offices of city attorney and member of the county board of commissioners failed to protect, advance, and promote the interests of both public offices and that in such situation, only vacation of one office would resolve the public official's dilemma.

Frank J. Kelley

Attorney General

[ Previous Page]  [ Home Page ]