STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6627

September 8, 1989

Honorable Ralph Ostling

State Representative

The Capitol

Lansing, MI

You have requested my opinion on whether a person may simultaneously serve as a county planning department director and as a member of the Advisory Panel for the Clean Michigan Fund.

MCL 15.181 et seq; MSA 15.1120(121) et seq, prohibits public officers and public employees from holding incompatible offices or public positions and sets out the standards for determining incompatibility. MCL 15.181(b); MSA 15.1120(121)(b) defines "incompatible offices" as:

The first two statutory standards of incompatibility restate the common law. OAG, 1979-1980, No 5626, p 537, 541-542 (January 16, 1980). In contrast, the third standard of incompatibility:

OAG, 1983-1984, No 6134, p 66 (March 17, 1983).

The Clean Michigan Fund Act (the Act), MCL 299.371 et seq; MSA 13.33(l) et seq. established the Clean Michigan Fund in the State Treasury. MCL 299.375; MSA 13.33(5). Sectionn 20(l) of the Act, MCL 299.390(1); MSA 13.33(20)(l), created an Advisory Panel to help in administering the Fund, providing in pertinent part:

Thus, the members of the Advisory Panel have a statutory duty to review proposals and recommend projects to the Natural Resources Commission that will be funded from the Clean Michigan Fund. The role of the Panel is advisory only; all final decisions are made by the Natural Resources Commission itself. No provision is made for compensation of Panel members. Nevertheless, because these are appointed public positions, members of the Panel are "public officers" for purposes of applying the incompatibility provisions. MCL 15.181(e); MSA 15.1120(121)(e).

Section 20(1) of the Act also provides for the make-up of the Panel, stating a pertinent part that:

(Emphasis added.)

The term "municipality," as used in the Act, is defined in section 3(9) of the Act as follows:

Thus, the Legislature has expressly required that the Panel include three members who represent governmental entities such as counties.

Finally, it is to be noted that section 20(3) of the Act prohibits certain persons from receiving grants from the Fund:

This provision is not dispositive of your question, however. While it expressly renders Panel members, as well as their relatives and business associates, ineligible for grants made under the Act, this provision makes no mention of municipalities. This omission must be presumed to have been intended by the Legislature. It must be concluded, therefore, that section 20(3) does not render a municipality ineligible for a grant when a representative of the municipality serves on the Advisory Panel. It remains necessary, therefore, to address the issue of whether a person may simultaneously hold the two positions identified in your letter.

The director of a county planning department is a county employee, MCL 125.103; MSA 5.1192(3), and thus a public employee for the purposes of applying the incompatible offices provisions. MCL 15.181(d); MSA 15.1120(121)(d). You have informed me that a county planning department director, who also served as a member of the Advisory Panel, wrote and submitted two grant applications to the Advisory Panel on behalf of the county. The director abstained from voting on one of these applications, after indicating the project was not the best waste management alternative for the area, and was not present when the second application was discussed. After reviewing the applications, the other members of the Advisory Panel stated that these applications were ineligible for a grant because the director had written them.

In this situation, the county planning director is not subordinate to or supervised by the Advisory Panel in carrying out his duties. Neither is the Advisory Panel subordinate to or supervised by the county planning director. Thus, the first and second criteria for incompatibility under MCL 15.181(b); MSA 15.1120(121)(b), do not arise with respect to these public positions. Making a determination under the third criterion is more difficult because the incompatibility statute does not define the term "breach of duty of public office."

Research discloses no Michigan court decisions nor opinions of the Attorney General that have discussed the incompatibility of these particular offices, nor the more general question of incompatibility of offices where one of the public offices is merely advisory. However, in Macrum v Hawkins, 261 NY 193; 184 NE 817 (1933), the New York Court of Appeals, in a somewhat similar situation, held that the position of county supervisor was not incompatible with the merely advisory duties of a member of a county planning board. The court reached this result after reasoning that, as a member of the planning board, the individual received no compensation, was to decide nothing, and merely participated in investigating, reporting and recommending public improvement projects.

Here it is reasonable to conclude that the county planning director can fulfull his obligations to both of his public positions without violating his duty to either one. On the one hand, as the county planning director, he must protect and promote the interest of that office by preparing and submitting proposals, on behalf of the county, for funding under the Clean Michigan Act. By submitting the county's application, he fulfills his obligations as county planning director. On the other hand, as a member of the Advisory Panel, he must sit with the other members of the Advisory Panel and review all the applications and recommend certain projects to the Commission. By doing this, he meets his obligations as a Panel member. The final decision, however, remains out of his hands. The Natural Resources Commission decides which proposals will be funded, after it reviews the applications and the Panel's recommendations. MCL 299.391(d): MSA 13.33(21)(d). The Commission, knowing the composition of the Advisory Panel, can take into account a Panel member's support for projects in his home county when they review the panel's recommendations. Furthermore, this interest can be taken into consideration by the other Panel members when they review the applications. Ultimately, only the Commission has the authority to decide which projects will be funded.

It is my opinion, therefore, that the position of county planning department director is not incompatible with the position of a member of the Advisory Panel for the Clean Michigan Fund and may, accordingly, be simultaneously held by the same individual.

Frank J. Kelley

Attorney General