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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. 6440 June 2, 1987 CONSTITUTIONAL LAW: Const 1963, art 7, Sec. 28--service of elected officials as members of port authority INCOMPATIBILITY: Elected public officer serving as member of governing body of port authority PORT AUTHORITIES: Conduct of members of port authority Qualifications for member of port authority By virtue of Const 1963, art 7, Sec. 28, a port authority organized by a city and a county may have elected state, county, or city officers of either the legislative or executive branch, with the exception of state legislators, as members and officers of the authority. Members of a port authority are subject to the appropriate conflict of interest in public contracts statute and the standards of conduct for public officers and employees statute. Honorable Curtis Hertel State Representative The Capitol Lansing, Michigan 48909 You have requested my opinion whether an elected official of the state, County of Wayne or City of Detroit, of either the legislative or executive branch, may be appointed to serve as a member of the Detroit/Wayne County Port Authority. Your question does not identify any specific elected office and must, therefore, be answered in general terms. The Detroit/Wayne County Port Authority was created pursuant to 1978 PA 639, MCL 120.101, et seq; MSA 5.2190(1), et seq. Its functions center around the acquisition and operation of port facilities, MCL 120.108(d); MSA 5.2190(8)(d), defined by MCL 120.102(e); MSA 5.2190(2)(e): " 'Port facilities' means those facilities owned by the port authority such as: seawall jetties; piers; wharves; docks; boat landings; marinas; warehouses; storehouses; elevators; grain bins; cold storage plants; terminal icing plants; bunkers; oil tanks; ferries; canals; locks; bridges; tunnels; seaways; conveyors; modern appliances for the economical handling, storage, and transportation of freight and handling of passenger traffic; transfer and terminal facilities required for the efficient operation and development of ports and harbors; other harbor improvements, or improvements, enlargements, remodeling, or extensions of any of these buildings or structures." MCL 120.104(1); MSA 5.2190(4)(1), provides for the creation of an authority through the joint action of cities and counties: "A city and county, a combination of counties or a combination consisting of at least 1 city and 1 county, by joint resolution of their respective governing bodies, may request the governor to authorize the incorporation of an authority.... After approval by the governor, the articles of incorporation and any amendments to those articles shall be effective upon filing with the secretary of state." MCL 120.104(3); MSA 5.2190(4)(3), provides: "The exercise by an authority of the powers conferred by this act shall be considered and held to be an essential governmental function and a benefit to, and a legitimate public purpose of the state, the authority, and the constituent units." The membership of the Detroit/Wayne County Port Authority is established by MCL 120.105(5); MSA 5.2190(5)(5): "An authority which is established in a county having a population of 2,000,000 or more shall consist of 5 members as follows: "(a) One member shall be appointed by the governor. "(b) Two members shall be appointed by a majority of all the members of the county board of commissioners of the county. The members appointed shall be nominated by the commissioners on the board who do not reside within the political boundaries of a city having a population of 1,000,000 or more. "(c) Two members shall be appointed by the mayor of a city having a population of 1,000,000 or more which is located in the county." MCL 120.101, et seq; MSA 5.2190(1), et seq, does not expressly disqualify state, county or city elected officials from eligibility to serve on the authority. Const 1963, art 7, Sec. 28, provides for the creation of such joint governmental undertakings as the Detroit/Wayne County Port Authority, and expressly addresses the eligibility of their officials to serve on the authorities thereby created: "The legislature by general law shall authorize two or more counties, townships, cities, villages or districts, or any combination thereof among other things to: enter into contractual undertakings or agreements with one another or with the state or with any combination thereof for the joint administration of any of the functions or powers which each would have the power to perform separately; share the costs and responsibilities of functions and services with one another or with the state or with any combination thereof which each would have the power to perform separately; transfer functions or responsibilities to one another or any combination thereof upon the consent of each unit involved; cooperate with one another and with state government; lend their credit to one another or any combination thereof as provided by law in connection with any authorized publicly owned undertaking. "Any other provision of this constitution notwithstanding, an officer or employee of the state or any such unit of government or subdivision or agency thereof, except members of the legislature, may serve on or with any governmental body established for the purposes set forth in this section and shall not be required to relinquish his office or employment by reason of such service." (Emphasis added.) Because Const 1963, art 7, Sec. 28, is a new provision, it is appropriate to examine the Address to the People, which proposed adoption of the Constitution, 2 Official Record, Constitutional Convention 1961, p 3394, for an explanation of the purpose of that provision: "This is a new section designed to encourage the solution of metropolitan problems through existing units of government rather than by creating a fourth layer of local government. Local governments are allowed to join in a variety of ways to work out together the solutions to their joint problems. ".... "Because this work is to be carried on by local governments, officials (except members of the legislature) are allowed to serve on the boards. The last sentence provides that such service is not in conflict with other provisions of this constitution." The meaning to be given the language of the Constitution is that which reflects the sense most obvious to the common understanding. Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). It is apparent from the language of Const 1963, art 7, Sec. 28, that elected officials at the state, county and city level, except members of the Legislature, may serve on the board of an authority created pursuant to that constitutional provision. See, OAG, 1983-1984, No 6260, p 423, 424-425 (December 5, 1984). Regarding state legislators, Const 1963, art 4, Sec. 8, prohibits them from holding any other office or position of the state or a political subdivision thereof. OAG, 1983-1984, No 6165, p 135 (June 29, 1983); OAG, 1981-1982, No 6075, p 672 (June 14, 1982). It is also apparent that the Detroit/Wayne County Port Authority falls within the class of intergovernmental units encompassed by Const 1963, art 7, Sec. 28. You also ask whether such an elected official may serve as the secretary-treasurer or chairperson on the Detroit/Wayne County Port Authority. MCL 120.105(3); MSA 5.2190(5)(3), provides for the selection of the chairperson and secretary-treasurer and in pertinent part, reads: "The members shall elect 1 of their membership as chairperson and another as vice-chairperson, shall designate their terms of office, and shall appoint a secretary-treasurer who need not be a member." There is no legal basis for categorically disqualifying from such offices those members who happen to be elected officials. Finally, you ask whether there are procedures to ensure compatibility, lack of conflict of interest, and separation of governmental powers if elected officials are permitted to serve on the Detroit/Wayne County Port Authority. Const 1963, art 7, Sec. 28, permits elected officials other than state legislators to serve on an intergovernmental authority, "[a]ny other provision of this constitution notwithstanding." The separation of powers doctrine is embodied by Const 1963, art 3, Sec. 2, and therefore is not violated by such dual service. Additionally, since the Constitution expressly permits elected officials other than state legislators to serve on an intergovernmental body, it cannot be said that such dual service gives rise to incompatibility. OAG, No 6260, pp 424-425, supra; OAG, 1967-1968, No 4620, p 278, 279 (August 7, 1968); OAG, 1977-1978, No 5230, p 237, 238 (October 3, 1977). With regard to conflict of interest, there are statutes which expressly address the topic. See, 1968 PA 318, MCL 15.301, et seq; MSA 4.1700(21), et seq (prohibits conflicts of interest in public contracts by members of the Legislature and enumerated state officers); 1968 PA 317, MCL 15.321, et seq; MSA 4.1700(51), et seq (prohibits conflicts of interest in public contracts by other state officers and public servants); and 1973 PA 196, MCL 15.341, et seq; MSA 4.1700(71), et seq (imposes standards of conduct for public officers and employees). These statutes would apply to elected officers serving as members of the Detroit/Wayne County Port Authority. It is my opinion, therefore, that, with the exception of state legislators, an elected official at the state, county, or city level, of either the executive or legislative branch, may serve as a member and officer of the Detroit/Wayne County Port Authority. It is my further opinion that the members of a port authority are subject to the appropriate conflict of interest in public contracts statute and the standards of conduct for public officers and employees statute. Frank J. Kelley Attorney General
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