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. 6756 March 30, 1993 INCOMPATIBILITY: Office of undersheriff and office of township supervisor The offices of undersheriff and supervisor of a township located in the same county are not incompatible provided there is no negotiation or execution of a contract between the sheriff's department and the township. Honorable Gary L. Randall State Representative The Capitol Lansing, Michigan You have asked whether an individual may hold the office of undersheriff while simultaneously holding the office of supervisor of a township located in the same county. The incompatible offices act, 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, in section 2, prohibits a 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. An undersheriff is a public officer appointed by the county sheriff. MCL 51.71; MSA 5.864. Therefore, an undersheriff is not subordinate nor subject to the supervision of a township board. Likewise, a township supervisor would not be subordinate to, nor supervised by an undersheriff. Therefore, the first and second criteria for incompatibility under section 1(b) of 1978 PA 566 are not met. 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. 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 the vacating of one office 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). This office has been advised that pursuant to Const 1963, art 9, Sec. 6, the citizens of Gratiot County voted in 1974 to adopt an 18 mill separate tax limitation. Thus, Gratiot County and Pine River Township 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. Townships are authorized to enter into agreements with the county sheriff for the provision of law enforcement services in the township. MCL 41.181; MSA 5.45(1), provides in part: If state laws are to be enforced, a township shall have a law enforcement unit or may by resolution appropriate funds and call upon the sheriff of the county in which the township is located, the department of state police, or other law enforcement agency to provide special police protection for the township. The sheriff, department of state police, or other local law enforcement agency shall, if called upon, provide special police protection for the township and enforce local township ordinances, to the extent that township funds are appropriated for the enforcement. Special township deputies appointed by the sheriff shall be under the jurisdiction of and solely responsible to the sheriff. A township supervisor is a voting member of the township board in either a general law or charter township, MCL 41.70; MSA 5.62, and MCL 42.5; MSA 5.46(5). OAG, 1981-1982, No 5955, p 311 (August 12, 1981), concluded that the offices of deputy sheriff and township trustee are not incompatible in the absence of good faith negotiation or execution of a contract between the county sheriff and the township board. Therefore, if a contract were negotiated between the sheriff's department and the township board, there would be an incompatibility of public positions. Furthermore, abstention from either negotiations or voting on the contract would constitute a breach of duty. OAG, 1981-1982, No 5955, p 312, supra. Once the incompatibility arises, only the vacating of one of the two offices will eliminate the incompatibility. Contesti v Attorney General, supra, p 281; Wayne County Prosecutor v Kinney, supra, p 684. It is my opinion, therefore, that the offices of undersheriff and supervisor of a township located in the same county are not incompatible provided there is no negotiation or execution of a contract between the sheriff's department and the township. Frank J. Kelley Attorney General