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. 6691

August 14, 1991

INCOMPATIBILITY:

City manager--city clerk

The same person may not simultaneously serve as city manager and city clerk where the position of city clerk is subordinate to and subject to supervision by the position of city manager.

Honorable Phil Arthurhultz

State Senator

The Capitol

Lansing, Michigan

You have asked whether a person may simultaneously serve as city manager and city clerk in a Michigan city.

In your letter, you advise that the city charter contains no express prohibition against the same person simultaneously serving in both positions. You further advise that:

1. The city manager and city clerk have separate and specific job functions and have the authority to administer and enforce local ordinances.

2. The city council appoints a city manager and city clerk. However, the city clerk's appointment requires approval by the city manager.

3. The city clerk performs those duties required by the city manager.

Section 2 of 1978 PA 556, MCL 15.181 et seq; MSA 15.1120(121) et seq, prohibits public officers or public employees from holding two or more incompatible public offices at the same time. Section 1(b) of the incompatible offices act defines incompatible offices as:

[P]ublic 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 incompatible offices act prevents a person from simultaneously holding two public offices where one office is subordinate to and subject to supervision by the other. OAG, 1979-1980, No 5626, p 537, 541-542 (January 16, 1980). Here, it is clear that the position of city clerk is subordinate to and under the supervision of the position of city manager.

It is my opinion, therefore, that the same person may not simultaneously serve as city manager and city clerk where the position of city clerk is subordinate to and subject to supervision by the position of city manager.

Frank J. Kelley

Attorney General