STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6532

August 9, 1988

INCOMPATIBILITY: School board member--employee of intermediate district

The public positions of member of a board of education of a constituent school district and food service consultant or bus driver for the intermediate school district in which the constituent school district is located are not incompatible and may be simultaneously occupied by the same person.

Honorable James A. Docherty

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on the following question:

1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, prohibits the holding of incompatible public positions and establishes the standards under which such incompatibility is to be determined. Prior to the enactment of 1978 PA 566, supra, the common law governed the determination of whether two public positions were incompatible in the absence of legislation expressly authorizing a person to hold the two public positions simultaneously.

The Legislature, in Sec. 1(b) of 1978 PA 566, supra, has defined incompatible offices as follows:

The subordination of one public position to another and the supervision of one public position by another encompass two of the three common law criteria of incompatibility. The third common law criteria of incompatibility was with respect to whether the functions of the two public positions were inherently inconsistent in situations where the two public positions had a duty to advance competing interests either in a contractual setting or before a tribunal. At common law, the potential for a conflict between the functions of the two public positions, e.g., the authority to contract between the two public bodies, was enough to render the two positions incompatible. Under the statutory breach of duty standard, the incompatibility does not arise until the two public bodies actually begin to negotiate a contract. See Contesti v. Attorney General, 164 Mich App 271, 279-280; 416 NW2d 410 (1987), lv den, 430 Mich 892 (1988); OAG, 1979-1980, No 5626, p 537, 538-542 (January 16, 1980).

Applying the statutory incompatibility standards to your questions, it is clear that neither of the situations here in issue involve public positions that are subordinate to one another or supervise one another. Members of constituent school district boards of education do not supervise intermediate school district employees and intermediate school employees do not supervise members of constituent school district boards of education. Neither of the first two incompatibility criteria render the public positions here in question incompatible.

With respect to the third criteria of incompatibility, namely, the breach of duty standard, this office has been informed that there are no contracts involved between either of the two constituent school districts and the intermediate school district within the context of this opinion request.

We have been informed that the two constituent school districts and the intermediate school district appear before the county tax allocation board with regard to the allocation of the 15 mill limitation established by Const 1963, art 9, Sec. 6, and implemented by 1933 PA 62, MCL 211.201 et seq; MSA 7.61 et seq. However, neither an intermediate school district food service consultant nor a school bus driver has the duty to represent the intermediate school district's position before the county tax allocation board. OAG, 1981-1982, No 6101, p 744 (September 14, 1982). Thus, there would be no incompatibility of public positions based on competition among the affected constituent school districts and intermediate school district for their respective shares of the 15 mill limitation.

1976 PA 451, MCL 380.1 et seq; MSA 15.4001 et seq, Sec. 624, provides:

The two persons occupying the positions here in question were selected by the board of education of their respective school districts to represent their respective constituent school districts at a meeting to approve the maximum amount of the intermediate school district general fund operating budget. At that meeting, neither person was under a legal duty to further the interest of the intermediate school district by supporting and approving the maximum budgetary amount sought by the intermediate school district. It is noted that the salaries of both of the persons employed by the intermediate school district are established by a collective bargaining agreement with the intermediate school district. Furthermore, the Legislature has expressly authorized the simultaneous holding of the public positions of member of an intermediate school district board of education and member of a constituent school district board of education. 1976 PA 451, Sec. 612(1), MCL 380.612(1); MSA 15.4612(1); OAG, 1977-1978, No 5230, p 237 (October 3, 1977). There is no incompatibility of public positions when these two employees of the intermediate school district represent their respective constituent school districts at the annual meeting to approve the maximum amount of the intermediate school district general fund operating budget pursuant to 1976 PA 451, supra, Sec. 624.

It is my opinion, therefore, that it is not an incompatibility of public positions for a person to simultaneously occupy the positions of member of a board of education of a constituent school district and food service consultant or bus driver for the intermediate school district in which the constituent school district is located.

Frank J. Kelley

Attorney General