[ 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)



Opinion No. 6637

June 1, 1989


County commissioner--executive deputy superintendent of schools

The office of member of a county board of commissioners and the position of executive deputy superintendent of a school district located in the same county may not be simultaneously occupied by the same person where a the contract exists between the two governmental units and the governmental units are subject to the jurisdiction of the county tax allocation board.

Honorable Jackie Vaughn, III

State Senator

The Capitol

Lansing, MI 48909

You have requested my opinion on the question of whether a person may simultaneously hold the office of Chairman of the Wayne County Board of Commissioners and the position of Executive Deputy Superintendent of the Detroit Public Schools.

MCL 15.182; MSA 15.1120(122), provides that, with certain exceptions not relevant to our analysis here, "a public officer or public employee shall not hold 2 or more incompatible offices at the same time." The term "incompatible offices" is defined by MCL 15.181(b); MSA 15.1120(121)(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, results in any of the following with respect to those offices 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.

The first two statutory standards of incompatibility, involving the subordination or supervision of one public office by another, merely restate the common law. OAG, 1979-1980, No 5626, p 537, 541-42 (January 16, 1980). Neither of these two standards, however, applies in this instance. Because the two units of government in question are separate and distinct, neither office is subordinate to or supervised by the other.

The third standard of incompatibility has been interpreted as applying to situations which involve a failure to protect, advance, or promote the interests of a public office. OAG, 1979-1980, No 5626, supra, at 543. This standard amounts to a significant departure from the prior common law standard. Under the common law standard, public offices would be found incompatible where there was a potential that the simultaneous holding of the two offices might result in a breach of the office holder's duty in one or the other of those two offices. Under the statutory standard established by MCL 15.181(b); MSA 15.1120(121)(b), however, incompatibility occurs only when a breach of duty actually results from the simultaneous performance of the duties of the two offices. OAG, 1983-1984, No 6134, p 66 (March 17, 1983). For example, the common law would find that two public offices were incompatible if the offices were authorized to enter into contracts with each other, whereas the incompatibility statute prohibits the holding of two public offices only if a contract was actually being negotiated or existed between the two governmental units. OAG, 1979-1980, No 5625, supra. Thus, it is necessary to examine the nature and duties of the two offices in order to determine whether the simultaneous exercise of the duties of those two offices would result in a breach of duty owed to either of the two offices.

According to the official position description provided to our office, the position of Executive Deputy Superintendent for the Detroit Public Schools has the following function:

Acts as chief operating officer of the school system responsible to the General Superintendent for coordinating the activities of all Areas and divisions to ensure maximum operating efficiency and effectiveness; delegates and defines the authority and responsibility of Area Superintendents and Deputy Superintendents; assists the General Superintendent in the general administration and coordination of all school system activities and objectives, as well as the development, interpretation and administration of policies.

Among the specific responsibilities of the position are the following:

1. Assists the General Superintendent in determining the school systems' basic philosophies, policies, goals, objectives and establishes immediate and long-range goals for those units for which direct responsibility is assigned.


3. Makes major decisions about activities and programs within responsibility areas and/or makes recommendations to the General Superintendent as appropriate.


5. Facilitates the acquisition of human, material and financial resources for Areas/divisions, within established allocations.

6. Reviews budgets of those units reporting to the Executive Deputy Superintendent.

It is our understanding that the Executive Deputy Superintendent is intended to be the second ranking position in the school system's administration, subordinate only to the General Superintendent. Based upon the position description which has been provided to us, it is clear that the position is a policy-making position at the highest levels of the administration, and one which is directly involved in the school system's budgetary process.

The powers and duties of a county commissioner in Wayne County, which is a charter county, are set out in MCL 45.501 et seq; MSA 5.302(1) et seq, as provided in the county charter. The county board of commissioners must, among other duties and responsibilities, submit a county budget to the county tax allocation board, pursuant to the Property Tax Limitation Act, MCL 211.210; MSA 7.70.

It is significant that Wayne County has not adopted separate tax rate limitations pursuant to Const.1963, art. 9, Sec. 6. The school district and the county, therefore, compete with each other for the allocation of millage rates by the county tax allocation board. See, Property Tax Limitation Act, MCL 211.211; MSA 7.71.

Moreover, we are informed that a contract presently exists between the county and the school district. This contract concerns the provision of adult education classes to inmates at the Wayne County Jail. While the contract is, at the present time, directly negotiated between the county jail and the school district, the county board of commissioners controls the appropriations necessary to fund this program.

A substantially similar incompatibility question was considered by the Attorney General in Letter Opinion of the Attorney General (Sen. Thomas F. Schweigert, August 22, 1969). That opinion considered the question of whether the office of superintendent for a school district was incompatible with the office of a member of the county board of supervisors in the same county. That question, like the present one, involved a county in which it was necessary for the school district to effectively compete with the county before the county tax allocation board. The Attorney General concluded that the two offices were incompatible, observing that:

The same individual cannot represent and protect the interests of both the county and the school district lying therein before the county tax allocation board in the vital matter of tax allocation.

Letter Opinion of the Attorney General (Sen. Thomas F. Schweigert, August 22, 1969). This reasoning has led to the same result in other opinions involving similar offices. See e.g., 2 OAG, 1960, No 3504, p 105 (August 2, 1960) (offices of township supervisor and superintendent of schools of a school district in the same township were incompatible), and OAG, 1969-1970, No 4671, p 51 (May 14, 1969) (offices of member of county board of supervisors and member of a board of education of a school district in the same county were incompatible).

Each of the opinions cited above was issued prior to enactment of the incompatibility statute and, accordingly, was based upon the stricter common law standard of incompatibility. Nevertheless, because the performance of the duties of the offices involved in each of these opinions resulted in an actual, rather than merely a potential breach of duty, the same conclusion would result under the statute. This is demonstrated by the decision of the Michigan Court of Appeals in Contesti v Attorney General, 164 MichApp 271; 416 NW2d 410 (1987) lv den 430 Mich 893 (1988).

Contesti involved a challenge to OAG, 1983-1984, No 6214, p 274 (April 3, 1984), in which the Attorney General had concluded that the positions of superintendent of a local school district and township trustee were incompatible. The court, concurring with the Attorney General, held that the positions were in fact incompatible for two reasons.

First, the court held that an incompatibility resulted from the fact that the school district and the township were involved in a contractual relationship. The court observed:

In this case plaintiff stood on both sides of what was presumably an arms-length bargain. As a township trustee it was plaintiff's duty to vote to either approve or disapprove the contract. As school district superintendent plaintiff was in a direct supervisory role over the district's negotiator.

Contesti, at 280. The court, moreover, concurred with the Attorney General's conclusion that the individual could not solve this dilemma by merely abstaining from voting on the contract or by refraining from exercising supervisory authority over the school district's negotiator. Quoting with approval from the Attorney General's opinion, the court held that such abstention is itself a breach of duty. Only vacation of of the two offices would resolve the incompatibility. Id. at 281.

Secondly, the court held that the two offices were incompatible because the two units of government compete for an allocation of millage rates. The court observed that:

In his capacity as superintendent, plaintiff was involved in the preparation of the school district budget that was submitted to the CTAB (County Tax Allocation Board) to support the district's request for an allocated millage rate. Plaintiff met with department heads on budget requests, participated in meetings of the school board's finance committee on budgetary matters, and made recommendations to the board of education concerning approval of the proposed budget.

Contesti, at 282. Simultaneously, in his capacity as a township trustee, plaintiff participated in reviewing budget requests from township departments, helped to prepare the budget that was submitted to the township board, and voted on the budget that would be submitted to the CTAB. The court concluded:

A person in plaintiff's situation would therefore find himself in the position of aiding in two competing budgetary requests from the CTAB, which allocates finite funds. We conclude that such a position is in violation of the act....

Contesti, at 282

The decision of the Court of Appeals in Contesti compels the same decision in response to your question here. As was true in Contesti, the two positions in question here are in units of government which (1) are involved in an existing contractual relationship and (2) must compete with one another for an allocation of ad valorem tax rates. As a member of the county board of commissioners, the individual clearly will have duties and responsibilities in each of these processes. Likewise, based upon a review of the position description provided to us, it is clear that the Executive Deputy Superintendent will have broad supervisory authority within the school district and will play a significant role in the district's budgetary process.

It is my opinion, therefore, that the office of a member of the Wayne County Board of Commissioners is incompatible with the position of Executive Deputy Superintendent of the Detroit Public Schools and that, accordingly, a person may not simultaneously hold both of these positions.

Frank J. Kelley

Attorney General

[ Previous Page]  [ Home Page ]