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. 6754 March 26, 1993 INCOMPATIBILITY: Elected city treasurer-assessor and member of the governing board of the city's downtown development authority An elected city treasurer-assessor may also serve simultaneously on the governing board of the city's downtown development authority. Honorable Robert A. DeMars State Representative The Capitol Lansing, MI You have asked whether an elected city treasurer-assessor may also serve simultaneously on the governing board of the city's downtown development authority. A city is authorized to establish a downtown development authority pursuant to 1975 PA 197, MCL 125.1651a et seq; MSA 5.3010(1a) et seq. Section 4 of that statute provides that the "authority shall be under the supervision and control of a board consisting of the chief executive officer of the municipality and not less than 8 or more than 12 members as determined by the governing body of the municipality." While 1975 PA 197 provides for one municipal official--the mayor--to be a member of the governing board of the downtown development authority, it does not expressly address whether other municipal officials may serve on the board. Based on the common law of incompatibility of public positions, OAG, 1975-1976, No 5087, p 690, 692-693 (December 6, 1976), concluded: In the above discussion of the tax increment financing provisions of the act supra, it was noted that the development authority may enter into agreements with the county board of commissioners, school boards and the governing body of the municipality to share the tax increment proceeds. In the formation of such agreement, the development authority board represents interests which are incompatible with those of the county, school and municipality. It is my opinion that a member of a downtown development authority board may not simultaneously serve as a member of the county board of commissioners of the county wherein the district is located, a member of the governing body of the municipality wherein the district is located, or a member of a school board of a school district which extends into the development area. Subsequently, the Legislature enacted the incompatible offices act, 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq. The general rule set forth in sections 1 and 2 of that statute is that two public positions may not be held simultaneously by the same person where one position is subordinate to or supervises the other position or where the holding of the two offices would result in a breach of duty of public office. Thus, under 1978 PA 566, the authority of two public bodies to contract with each other, without contract negotiations or the execution of a contract, no longer rendered service on the two public bodies incompatible. OAG, 1979-1980, No 5626, p 537, 542 (January 16, 1980). OAG, 1981-1982, No 6029, p 532, 534 (January 20, 1982), concluded, pursuant to 1978 PA 566, that "an elected city commissioner of a home rule city, other than the mayor, may not simultaneously serve as a member of that same city's downtown development authority board since the two positions are incompatible." That conclusion was based on the finding that the two positions involved supervision/subordination since the city commissioner may participate in the commissioner's own appointment and removal as a member of the board of the downtown development authority. Subsequently, in 1992 PA 10, the Legislature amended section 3(3) of 1978 PA 566 to provide: Section 2 shall not be construed to prohibit a public officer or public employee of a city, school district, community college district, or county from being appointed to and serving as a member of the board of ... a downtown development authority pursuant to Act No. 197 of the Public Acts of 1975.... Pursuant to this statutory amendment, the Legislature has, inter alia, expressly authorized city employees and officers to serve on the board of a downtown development authority. In addition, the conclusions reached in OAG, 1975-1976, No 5087, p 690, supra, and OAG, 1981-1982, No 6029, p 532, supra, have been modified to the extent that the Legislature has expressly authorized dual office holding in the amendment to section 3(3) of 1978 PA 566 quoted above. It is my opinion, therefore, that an elected city treasurer-assessor may also serve simultaneously on the governing board of the city's downtown development authority. Frank J. Kelley Attorney General