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. 6711

February 14, 1992

INCOMPATIBILITY:

Member of village council and village clerk

VILLAGES:

Same person serving as member of the village council and village clerk

Section 1(b) of 1978 PA 566 prohibits a village council member from simultaneously serving as village clerk in the Village of Birch Run.

Honorable Jon Cisky

State Senator

The Capitol

Lansing, Michigan

You have asked, on behalf of the Village of Birch Run, whether one individual may simultaneously serve as village clerk and as a member of the village council.

The Village of Birch Run is a home rule village under 1909 PA 278, MCL 78.1 et seq; MSA 5.1511 et seq. The village's charter in Chapter 5, General Provisions Regarding Officers and Personnel of the Village, section 5.1, paragraph 4, effective December 5, 1955, provides:

No elective officer may be appointed as an administrative officer or in any way be employed by the village during the term of office for which he was elected, except that the Council may elect one of its own members as Clerk.... [Emphasis added.]

However, 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, governs the incompatibility of public offices. It prohibits one person from simultaneously holding two or more incompatible public positions.

Section 1(b) of 1978 PA 566 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 first and second criteria of incompatibility as set forth in section 1(b) of 1978 PA 566 would apply, inter alia, to those situations where one office has the power of appointment as to the other office, the power to remove the incumbent of the other, or the power to audit the accounts of the other. OAG, 1979-1980, No 5626, p 537, 542 (January 16, 1980).

Birch Run's village charter, section 5.1, permits a council member to be elected, by the council, to the position of village clerk. Charter provision section 4.5 provides, in pertinent part:

The Council shall elect a Clerk for an indefinite period who shall serve at its pleasure. The compensation of the Village Clerk shall be fixed by the Council within the limits of budget appropriations.

In addition, Birch Run's charter provision section 4.6(d) provides:

He [clerk] shall unless assigned by ordinance to another officer, be responsible for maintaining the system of accounts of the village, which shall conform to any uniform system required by law and to generally accepted principles and procedures of governmental accounting. He shall make a monthly financial statement to the Council.

The village council has the authority to elect the village clerk, as well as the authority to remove the clerk from office, since the clerk serves at the council's pleasure. The clerk maintains the village's accounts and makes monthly financial reports to the council. Thus, the village clerk is clearly subordinate to and under the supervision of the village council. A council member who also serves as village clerk will be within the charter's provisions but will also be in violation of section 1(b) of 1978 PA 566.

Section 1(b) of 1978 PA 566 conflicts with the Village of Birch Run's charter provision, section 5.1, paragraph 4. Section 27 of 1909 PA 278 provides that "[n]o provision of any village charter shall conflict with or contravene the provisions of any general law of the state...." Village charter provisions must conform to general state statutes. Callahan v. City of Berkley, 307 Mich 701, 709; 12 NW2d 431 (1943). Accordingly, section 1(b) of 1978 PA 566 supersedes Birch Run's charter provisions where they conflict.

It is my opinion, therefore, that section 1(b) of 1978 PA 566 prohibits a village council member from simultaneously serving as village clerk in the Village of Birch Run.

Frank J. Kelley

Attorney General