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. 6690 August 9, 1991 INCOMPATIBILITY: Township clerk--county commissioner The same person may not simultaneously serve as township clerk and county commissioner where the two governmental units have entered into two contracts with each other. Irving C. Shaw, Jr. Prosecuting Attorney Lenawee County 425 North Main Street Adrian, MI 49221 You have requested my opinion whether the same person may simultaneously serve as township clerk and county commissioner where the two governmental units have entered into two contracts with each other. Township clerks are members of the township board. MCL 41.70; MSA 5.62. In 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, the Legislature has addressed the question of incompatibility of public offices. Section 2 of the incompatible offices act provides, in pertinent part: (1) Except as provided in section 3, a public officer or public employee shall not hold 2 or more incompatible offices at the same time. Incompatible offices are defined in Section 1(b) of the same statute: "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. Under the third criteria of 1978 PA 566, section 1(b)(iii), incompatibility arises when the performance of the duties of the two offices results in a breach of duty of a public office. A breach of duty occurs when the individual holding the two offices fails to protect, advance, and promote the interests of both offices. OAG, 1979-1980, No 5626, p 537, 543 (January 16, 1980). Thus, to the extent that the two governmental units undertake negotiations or enter into a contract between themselves, the two offices would become incompatible. OAG, 1979-1980, No 5626, supra; OAG, 1983-1984, No 6214, p 274 (April 3, 1984). In Contesti v Attorney General, 164 MichApp 271; 416 NW2d 410 (1987), lv den 430 Mich 893 (1988), the Court of Appeals interpreted and applied the incompatible offices act. The Contesti court held that "the positions of the township trustee and school district superintendent are incompatible where the board of trustees and the school district are in a contractual relationship." Id at 281. Moreover, the Contesti court, at 281, noted that the plaintiff's abstention from voting on the contract would not solve the problem and quoted with approval the language of OAG, 1979-1980, No 5626, at p 545: [A] public official's abstention from the responsibilities of his or her office in order to avoid participating in the approval of both sides of an agreement between the two public entities which he or she serves is itself a breach of duty. Only vacation of one office will resolve the public official's dilemma. It is my opinion, therefore, that the same person may not simultaneously serve as township clerk and county commissioner where the two governmental units have entered into two contracts with each other. Frank J. Kelley Attorney General