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. 6695

August 21, 1991

INCOMPATIBILITY:

Township supervisor and member of a board of education

OFFICERS AND EMPLOYEES:

Incompatibility

The offices of township supervisor and a member of the board of education of a school district located in a county where the county tax allocation board annually allocates millage are incompatible and may not be simultaneously occupied by the same person.

Honorable Lynn F. Owen

State Representative

The Capitol

Lansing, Michigan

You have asked whether the same person may simultaneously serve as a township supervisor and as a member of a board of education. This office has been advised that in the county in question allocation of millage by the county tax allocation board occurs on an annual basis. As a result, the school district and township are in competition for the allocation of millage by the county tax allocation board. See, Property Tax Limitation Act, 1933 PA 62, MCL 211.201 et seq; MSA 7.61 et seq.

1 OAG, 1956, No 2675, p 405 (July 16, 1956), held that at common law the offices of township supervisor and member of a board of education were incompatible. That opinion contained the following:

We are of the opinion that a possible conflict of interest and of action to protect such conflicting interest may easily arise between a township and a school district on the question of tax allocation which would create a divided loyalty upon the part of the one holding the office of township supervisor and as such supervisor required to further and defend the interest of the township in the matter of tax allocation, and at the same time, as a member of the school board, would be required to defend and further the interest of the school district in the same manner as against the township. We believe the conflict of interest thus presented is alone sufficient to make the officer of township supervisor and of office of a school district within said township incompatible, and that one person may not hold both of said offices at the same time.

Subsequently, the Legislature addressed the question of incompatibility of public positions in 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq.

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 of the same statute 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.

In Contesti v. Attorney General, 164 Mich App 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 determined that the public positions of township trustee and school district superintendent were incompatible where the township board and the school district board of education present to the county tax allocation board competing requests for allocation of property tax millage. The foregoing analysis is equally applicable to a supervisor, since township trustees and township supervisors are both members of the township board. MCL 41.70; MSA 5.62.

The Contesti court, at 281, concluded that "the positions of township trustee and school district superintendent are incompatible where the board of trustees and the school district are in a contractual relationship" and noted that plaintiff's abstention from voting on the contract did not solve the problem, quoting with approval the language of OAG, 1979-1980, No 5626, p 537, 545 (January 16, 1980):

[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 offices of township supervisor and a member of the board of education of a school district located in a county where the county tax allocation board annually allocates millage are incompatible and may not be simultaneously occupied by the same person. These offices were incompatible under the common law, 1 OAG, 1956, No 2675, supra, and they remain incompatible under the incompatible offices act.

Frank J. Kelley

Attorney General