STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6737

October 28, 1992

INCOMPATIBILITY:

County commissioner--township supervisor

The office of member of the board of county commissioners and the office of township supervisor are incompatible and may not be simultaneously held by the same person under 1978 PA 566.

Honorable John D. Pridnia

State Senator

The Capitol

Lansing, Michigan

You have asked whether an individual may simultaneously serve as a member of the county board of commissioners and as the supervisor of a township within the same county when the township and county have entered into contracts for purposes of property tax collection.

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 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.

MCL 41.61; MSA 5.52, provides that the supervisor of each township is the chief assessor of the township and the secretary of the board of review.

Pursuant to MCL 211.34; MSA 7.52, the county board of commissioners is required to meet in April of each year to determine county equalized value. The board of county commissioners examines the assessment rolls of the townships and cities to ascertain whether the real and personal property in the townships and cities has been equally and uniformly assessed at true cash value. The board has the authority to modify assessments it determines to be unequal. In addition, the county board of commissioners may furnish assistance to local assessing officers in the performance of their duties.

Clearly, the county board of commissioners serves in a supervisory capacity over the township supervisor. Conversely, the office of township supervisor is subordinate to the office of county commissioner. Therefore, the first two criteria of incompatibility have been met. See, OAG, 1979-1980, No 5626, p 537, 546 (January 16, 1980).

The third criteria to establish incompatibility is whether the duties of each office result in a breach of duty of public office pursuant to 1(b)(iii) of 1978 PA 566. A township supervisor is a voting member of the township board. MCL 41.70; MSA 5.62. You have advised that the township board and the board of county commissioners have entered into contracts with each other for purposes of collecting property taxes. If these contracts were negotiated or entered into while the person simultaneously held these two public positions, a member of the county board of commissioners who also serves as township supervisor was placed on opposite sides of the table in negotiating and entering into contracts between the two public bodies. In addition, any future contract negotiations or contracts between these two public bodies would place the person in question on opposite sides of the table in negotiating and entering into contracts between the two public bodies.

When two public offices occupied by the same person are on opposite sides of a contractual relationship, there is a breach of duty of public office. Further, abstaining from voting on the contract is itself a breach of duty. Only vacating one of the two offices will solve the public official's dilemma. Contesti v Attorney General, 164 MichApp 271, 280-281; 416 NW2d 410 (1987), lv den 430 Mich 893 (1988); Wayne County Prosecutor v Kinney, 184 MichApp 681, 684; 458 NW2d 674, lv den 436 Mich 887 (1990); OAG, 1989-1990, No 6637, p 125 (June 1, 1989).

It is my opinion, therefore, for each of the foregoing reasons, that the office of member of the board of county commissioners and the office of township supervisor are incompatible and may not be simultaneously held by the same person under 1978 PA 566.

Frank J. Kelley

Attorney General