STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6720

May 5, 1992

INCOMPATIBILITY:

Charter township planning commissioner and county commissioner in the county in which the township is located

An individual may simultaneously serve as a member of a charter township planning commission and as a member of a county board of commissioners in the county in which the township is located.

Honorable William Van Regenmorter

State Senator

The Capitol

Lansing, Michigan

You have asked whether an individual may simultaneously serve as a member of a charter township planning commission and as a member of a county board of commissioners in the county in which the township is located.

1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, governs the incompatibility of public offices by prohibiting one person from simultaneously holding two or more incompatible public positions. Section 1(b) of 1978 PA 566 defines incompatible offices as:

With the foregoing criteria in mind, a review of the duties of these two respective public offices is necessary to determine whether they are compatible if held simultaneously by the same individual.

Sections 2 and 4(2) of the township planning act, 1959 PA 168, MCL 125.321 et seq; MSA 5.2963(101) et seq, provide that a township board may create a township planning commission, the members of which shall be appointed by the township supervisor with the approval of the township board. The township planning commission may adopt a basic plan which shall then be referred to the county planning commission for approval under section 8 of the statute.

In addition, section 11 of 1959 PA 168 provides that a township board may transfer to the township planning commission all powers and duties of the township zoning board as granted in the township rural zoning act, 1943 PA 184, MCL 125.271 et seq; MSA 5.2963(1) et seq. Your office has advised that this township planning commission has been assigned the responsibilities previously vested in the township zoning board.

Among the duties granted a zoning board in section 7 of 1943 PA 184, and here transferred to the planning commission, is the requirement to submit to the township board drafts of proposed zoning ordinances, maps and zoning regulations to be adopted by the township board. Before submitting a proposed zoning ordinance to the township board, the township planning commission is required to hold at least 1 public hearing under section 9 of 1943 PA 184.

Following the hearing, the township planning commission shall submit the proposed zoning ordinance to the appropriate county agency for review and recommendation under section 10 of 1943 PA 184. You have advised this office that in the county in question, the appropriate county agency is the county planning commission. Both the township planning commission and the county planning commission function in an advisory capacity to the township board concerning the adoption of proposed zoning ordinances by the township board. Davis v Imlay Township Board, 7 Mich App 231, 236; 151 NW2d 370, app den 379 Mich 780 (1967). Also, the members of the county planning commission are appointed by the county board of commissioners pursuant to MCL 125.102; MSA 5.1192(2). ⁽¹⁾

A review of the powers and duties of these two public offices reveals that the county board of commissioners has no direct supervisory authority over the township planning commission when the commission exercises either its planning powers or its zoning powers. Thus, these two public offices are neither subordinate to one another nor supervise one another.

Next, we must consider whether the simultaneous holding of these two public positions by the same individual would result in a breach of duty of public office. It is not a potential breach of duty which renders two positions incompatible. Rather, a breach of duty only occurs when the actual performance of the duties of one of the public offices results in a prohibited breach of duty of public office. OAG, 1979-1980, No 5626, p 537, 542 (January 16, 1980). Abstention from voting in order to avoid a breach of duty does not resolve the conflict of duties since the abstention itself results in a breach of duty. Only the vacating of one office will solve the public official's dilemma. Contesti v Attorney General, 164 Mich App 271, 280-281; 416 NW2d 410 (1987) lv den 430 Mich 893 (1988); Wayne County Prosecutor v Kinney, 184 Mich App 681,684; 458 NW2d 674, lv den 436 Mich 887 (1990).

You have advised this office that there is only one contract between the township and county in question. That contract, for the provision of sheriff services in the township, is approved by the township board for the township without any recommendation by the township planning commission. The township planning commission has no authority to contract with the county board of commissioners under the township planning act, 1959 PA 168, or the township rural zoning act, 1943 PA 184.

Pursuant to section 27 of the charter township act, MCL 42.27; MSA 5.46(27), this charter township may levy property taxes for operating purposes. You have advised that this charter township does not participate in the 15 mill allocation among the county, general law townships and school districts established by Const 1963, art 9, Sec. 6, and the Property Tax Limitation Act, 1933 PA 62, MCL 211.201 et seq; MSA 7.61 et seq.

In section 10 of the township rural zoning act, 1943 PA 184, the Legislature has provided:

You have advised this office that, in the county in question, the board of commissioners has waived county review of all proposed township zoning ordinances except ordinances which relate to land within 500 yards of a township's boundary.

While it is possible that the county board of commissioners could vote on another resolution to contract or expand the scope of review of proposed township zoning ordinances by the county planning commission, this review of proposed township zoning ordinances is only advisory to the township board. Thus, in that limited context, there would be no breach of duty in voting on such a resolution. ⁽²⁾

It is my opinion, therefore, that an individual may simultaneously serve as a member of a charter township planning commission and as a member of a county board of commissioners in the county in which the township is located.

Frank J. Kelley

Attorney General