Opinion #6491

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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. 6491

January 22, 1988

INCOMPATIBILITY:

State tax commissioner--director of state and federal relations for intermediate school district

A person may simultaneously occupy the office of State Tax Commissioner and the position of director of state and federal relations for an intermediate school district.

Honorable John M. Engler

State Senator

The Capitol

Lansing, Michigan 48913

You have requested my opinion as to whether a person employed as director of state and federal relations for the Genesee Intermediate School District may be appointed to concurrently serve as a Commissioner of the State Tax Commission.

1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, governs the incompatibility of public offices. Act 566, Sec. 2, provides in pertinent part that "[a] public officer or public employee shall not hold 2 or more incompatible offices at the same time."

The term "incompatible offices" as used in Act 566 is defined in Sec. 1(b) as follows:

" '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, 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."

In order to determine the compatibility of the position of director of state and federal relations for the Genesee Intermediate School District with the office of commissioner on the State Tax Commission, it is necessary to review the power and duties of the respective positions.

Const 1963, art 9, Sec. 3, provides in pertinent part:

"The legislature shall provide for the uniform general ad valorem taxation of real and tangible personal property not exempt by law. The legislature shall provide for the determination of true cash value of such property; the proportion of true cash value at which such property shall be uniformly assessed, which shall not, after January 1, 1966, exceed 50 percent; and for a system of equalization of assessments...."

The General Property Tax Act, 1893 PA 206; MCL 211.1 et seq; MSA 7.1 et seq, provides for the assessment and equalization of property for ad valorem tax purposes. The assessment and equalization of property is a yearly process. Act 206, Secs. 10 and 34; 1911 PA 44, Sec. 2, MCL 209.2; MSA 7.602.

The State Tax Commission was created pursuant to MCL 209.101; MSA 7.631. The Commission is composed of three commissioners, not more than two of whom shall be members of the same political party to be appointed by the Governor with the advice and consent of the Senate. MCL 209.102; MSA 7.632.

Act 206, Sec. 150, sets forth the duties of the State Tax Commission as follows:

"(1) To have and exercise general supervision over the supervisors and other assessing officers of this state, and to take such measures as will secure the enforcement of the provisions of this act, to the end that all the properties of this state liable to assessment for taxation shall be placed upon the assessment rolls and assessed and that proportion of true cash value which the legislature from time to time shall provide pursuant to the provisions of article 9, section 3 of the constitution.

"(2) To confer with and advise assessing officers as to their duties under this act, and to institute proper proceedings to enforce the penalties and liabilities provided by law for public officers, officers of corporations and individuals failing to comply with the provisions of this act; to prefer charges to the governor against assessing and taxation officers who violate the law or fail in the performance of their duties in reference to assessment and taxation, and in the execution of these powers the commission may call upon the attorney general or any prosecuting attorney in the state to assist it.

"(3) To receive all complaints as to property liable to taxation that has not been assessed or that has been fraudulently or improperly assessed, and to investigate the same, and to take such proceedings as will correct the irregularity complained of, if any is found to exist.

"(4) To require from any officer in this state, on forms prescribed by the commission such annual or other reports as shall enable it to ascertain the assessed value and equalized values of all property listed for taxation throughout the state under this act, the amount of taxes assessed, collected and returned and such other matter as it may require, including a separate listing of the valuations of all personal and real property classifications within the assessing unit, to the end that it may have complete statistical information as to the practical operation of this act, and to approve the forms used by assessing officers in taking the assessment of property.

"(5) To furnish the state board of equalization at each session thereof an estimate of the actual cash value of the taxable property of each county in the state, and to meet with the state board of equalization when requested by said board to do so."

OAG, 1981-1982, No 6007, p 450, 450-452 (November 18, 1981), explained the successive steps in the process of assessment and equalization of property. The first step is the assessment by the local assessor of property at 50% of its true cash value. 1893 PA 206, Sec. 27(4). The next phase is the intracounty equalization performed by the county board of commissioners. Pursuant to Act 206, Sec. 34, the county board of commissioners examines the assessment rolls of the various local units within the county and ascertains whether each class of property separately equalized, in the respective local units of government, has been equally and uniformly assessed. If the county board of commissioners determines that the various assessment rolls have not been equally and uniformly assessed, then value is either added to or deducted from a particular class of property within a particular unit until, in the judgment of the county board of commissioners, a sum is produced which represents 50% of the true cash value of each separately equalized class of property within that local unit. The third step in the process is intercounty equalization, also known as state equalization, conducted in accordance with 1911 PA 44, MCL 209.1 et seq; MSA 7.601 et seq, which is performed by the Tax Commission as the successor to the State Board of Equalization, 1965 PA 380, Sec. 86; MCL 16.186; MSA 3.29(86). The total value of each of the six classes of property separately equalized in each county in Michigan is examined and adjusted so that each class of separately equalized property within each county is assessed at the same percentage of true cash value. 1911 PA 44, Sec. 4.

Thus, the State Tax Commission has general supervision responsibilities over all assessing officers of this state and is authorized to take such measures as will insure that properties of this state are assessed at that proportion of true cash value which the Legislature shall provide, not to exceed 50% of true cash value, pursuant to Const 1963, art 9, Sec. 3. Local school districts, including the Genesee Intermediate School District, rely upon general ad valorem property taxes for their operating budgets and thus have an interest in the amount of assessments and equalizations made by the local assessor, county board of commissioners, and/or the State Tax Commission.

This office is informed that the director of state and federal relations for the Genesee Intermediate School District is an employee of the district hired by the superintendent and under contract to the district as affirmed by the school board. There are no statutory duties assigned to this position; therefore, the duties of the director may change over time. The current Genesee Intermediate School District job description for the position of director of state and federal relations provides as follows:

"Job Summary:

"Serves as lobbyist and legislative agent in local, state and federal affairs affecting education; represents the interests of the intermediate school district and the local constituent districts at all governmental levels; directs and supervises grantsmanship consultant.

"Typical Duties:

"Attends sessions of the Michigan Legislature and testifies at special committee hearings on behalf of the Genesee Intermediate School District and the local constituent school districts. Attends regular meetings of the House and Senate Education Committees; reports pertinent developments in the work of those committees to the superintendent of the intermediate district. Maintains liaison with State Department of Education and other state agencies on matters affecting GISD and constituent districts. Assists in the development of new legislation and necessary revisions in proposed or existing legislation; obtains copies of House and Senate bills and draft legislation for study. Contacts local, state and federal officials and maintains liaison with them to promote the interests of school districts and education. Assists in development of legislative workshops for school board members and administrators. Develops regular reports on progress in the legislature for dissemination to the local school districts. Prepares annual revenue estimates, both state and local, for GISD and local constituent school districts."

The duties of the director of state and federal relations for the Genesee Intermediate School District do not involve the assessment of property for tax purposes or determining the local millage rate. The state equalized value is determined by the county board of commissioners and affirmed or adjusted by the State Tax Commission. The millage for general fund operations and special education classes for the Genesee Intermediate School District is levied by the school board within the authority granted by the electorate.

Because the position of director of state and federal relations for the Genesee Intermediate School District and the public office of State Tax Commissioner do not involve supervision or subordination of one over the other, the only basis for finding them incompatible would be if the holding of these two public positions would result in a breach of duty for failure to protect, advance, and promote the interests of both public positions. OAG, 1979-1980, No 5626, p 537, 543 (January 16, 1980); OAG, 1981-1982, No 5906, p 185, 189 (May 13, 1981).

The duties of director of state and federal relations for the Genesee Intermediate School District are essentially public relations and lobbying activity. This position has no assessor duties, is not involved millage decisions, and has no taxing function at the local, county, or state levels. The State Tax Commission has no duties relating to the public relations and legislative activities of intermediate school districts. Thus, there is no basis to find any breach of duty.

It is noted that 1973 PA 196, Sec. 2(6); MCL 15.342; MSA 4.1700(72)(6), provides that a public officer shall not engage in or accept employment or render services for a public interest when that employment or service may tend to impair his or her independence of judgment or action in the performance of official duties. Act 196, Sec. 1(c), includes a person appointed by the Governor within the definition of "public officer." The State Board of Ethics is the state agency empowered to decide questions involving ethics.

It is my opinion, therefore, that a person may simultaneously occupy the office of State Tax Commissioner and the position of director of state and federal relations for an intermediate school district.

Frank J. Kelley

Attorney General

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