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. 6739

November 16, 1992

INCOMPATIBILITY:

Member of board of education of school district and member of county board of commissioners

ELECTIONS:

Running for member of board of education of school district and member of county board of commissioners in the same election

There is no incompatibility of public office where a person simultaneously holds the office of member of a board of education of a school district and member of a county board of commissioners provided a separate tax limitation has been established by a vote of the people and the school district and the county board of commissioners do not negotiate or enter into a contract with each other.

An individual may run as a candidate for board of education of a school district and candidate for member of a county board of commissioners in the same election provided a separate tax limitation has been established by a vote of the people and the two governmental units do not negotiate or enter into a contract with each other.

Honorable Kirk A. Profit

State Representative

The Capitol

Lansing, Michigan

You have asked two questions, the first of which is:

May an individual serve as a member of a board of education of a school district while simultaneously serving as a member of a county board of commissioners?

The incompatibility of public offices is governed by 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, which 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 offices of member of a county board of commissioners and member of a board of education of a school district located in the same county do not involve subordinate or supervisory relationships. Thus, the first two criteria in section 1(b) of 1978 PA 566 do not apply.

The remaining issue is whether the duties of each office result in a breach of duty of public office pursuant to section 1(b)(iii) of 1978 PA 566.

Const1963, art 9, Sec. 6, provides in pertinent part:

Except as otherwise provided in this constitution, the total amount of general ad valorem taxes imposed upon real and tangible personal property for all purposes in any one year shall not exceed 15 mills on each dollar of the assessed valuation of property as finally equalized. Under procedures provided by law, which shall guarantee the right of initiative, separate tax limitations for any county and for the townships and for school districts therein, the aggregate of which shall not exceed 18 mills on each dollar of such valuation, may be adopted and thereafter altered by the vote of a majority of the qualified electors of such county voting thereon, in lieu of the limitation hereinbefore established....

The opinion request involves the Board of Education of the South Lyon School District and the Washtenaw County Board of Commissioners. This office has been advised that, pursuant to the foregoing constitutional provision, the citizens of Washtenaw County voted in 1964 to adopt an 18 mill separate tax limitation. Thus, the South Lyon School District and the Washtenaw County Board of Commissioners do not compete for allocated millage pursuant to the Property Tax Limitation Act, 1933 PA 62, MCL 211.201 et seq; MSA 7.61 et seq. Consequently, OAG, 1969-1970, No 4671, p 51 (May 14, 1969), which was based on a situation where the board of education and the county board of commissioners (formerly supervisors) were competing for millage allocation within the same county, is inapplicable.

A board of education and a county board of commissioners may enter into contracts with each other pursuant to 1951 PA 35, MCL 124.1 et seq; MSA 5.4081 et seq. However, it is not until contract negotiations are undertaken or a contract entered into between the two public bodies that an incompatibility exists since "[a]s long as the two public entities do not negotiate an agreement with each other, the public official serving both would not fall within the third criterion of the incompatibility statute." OAG, 1979-1980, No 5626, p 537, 545 (January 16, 1980).

It is my opinion, therefore, in answer to your first question, that there is no incompatibility of public office where a person simultaneously holds the office of member of a board of education of a school district and member of a county board of commissioners provided a separate tax limitation has been established by a vote of the people and the school district and the county board of commissioners do not negotiate or enter into a contract with each other.

Your second question may be stated as:

May an individual be a candidate for member of a board of education of a school district and a candidate for member of a county board of commissioners in the same election?

The Michigan Election Law, 1954 PA 116, MCL 168.1 et seq; MSA 6.1001 et seq, addresses the circumstances under which a candidate may run for more than one office. Section 558(2) of 1954 PA 116 provides:

If petitions or filing fees are filed by or in behalf of a candidate for more than 1 office, either national, state, county, city, village, township, or school district, the terms of which run concurrently or overlap, the candidate so filing, or in behalf of whom petitions or fees were so filed, shall select the 1 office to which his or her candidacy is restricted within 3 days after the last day for the filing of petitions or filing fees unless the petitions or filing fees are filed for 2 offices that are combined or for offices that are not incompatible. Failure to make the selection shall disqualify a candidate with respect to any office for which petitions or fees were so filed and the name of the candidate shall not be printed upon the ballot for those offices. A vote cast for that candidate at the primary or general election ensuing shall not be counted and shall be void. [ Emphasis added.]

The foregoing statutory provision contemplates that an individual may run for more than one office provided the offices are not incompatible. As stated in the response to your first question, where the people have voted a separate tax limitation and there is no contract between the two governmental units, there is no incompatibility. See, OAG, 1985-1986, No 6355, p 262, 264 (April 18, 1986), which concluded that, in the absence of a contract between the two governmental units, a person could simultaneously run for the offices of city commissioner and nominee for county commissioner.

It is my opinion, therefore, in response to your second question, that an individual may run as a candidate for board of education of a school district and as a candidate for member of a county board of commissioners in the same election provided a separate tax limitation has been established by a vote of the people and the two governmental units do not negotiate or enter into a contract with each other.

Frank J. Kelley

Attorney General