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. 6781

January 7, 1994

INCOMPATIBILITY:

Admissions director of a municipal health care facility and member of a county board of commissioners

A person may simultaneously serve as the admissions director of a municipal health care facility and as a member of the county board of commissioners that created the municipal health facilities corporation that operates the facility unless the admissions director is involved in contractual negotiations with the county board of commissioners on behalf of the municipal health care facility.

Section 30a of 1851 PA 156 does not prohibit a person from simultaneously serving as admissions director of a municipal health care facility and as a member of the board of county commissioners that created the municipal health care facilities corporation that operates the facility.

John L. Livesay

Branch County Prosecuting Attorney

Branch County Courthouse

31 Division Street

Coldwater, Michigan 49036

You have asked whether an employee of a municipal health care facility operating under the Municipal Health Facilities Corporations Act, 1987 PA 230, MCL 331.1101 et seq; MSA 14.1148(101) et seq, may simultaneously serve as a member of the board of county commissioners that created the municipal health facilities corporation that operates the facility.

Section 201 of the Municipal Health Facilities Corporation Act provides that a county board of commissioners may, under certain circumstances, incorporate a health facilities corporation. Section 305(b) of the same statute provides that "[a] health care facility owned and operated by a corporation or a subsidiary corporation shall not be considered to be owned or operated by the local governmental unit."

Your office has advised this office that the admissions director at the Community Health Center in Branch County has held this position since early 1989. The Community Health Center is a facility operating under the Municipal Health Facilities Corporations Act. In 1992, the admissions director successfully ran for a seat on the Branch County Board of Commissioners and assumed that position in January 1993.

The incompatibility of public positions is governed by 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq. Section 2 of that statute prohibits one person from simultaneously holding two or more incompatible public positions. Section 1(b) 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.

Thus, we have to determine whether one of these two public positions is subordinate to or supervises the other public position. (1) We also need to ascertain whether simultaneously holding these two public positions results in a breach of duty.

These two public positions are neither subordinate to one another nor does one position supervise the other. The remaining issue is whether the performance of the duties of each office results in a breach of duty pursuant to section 1(b)(iii) of 1978 PA 566.

It is not a potential breach of duty which renders two positions incompatible. Rather, a breach of duty occurs only when the actual performance of the duties of one of the public offices results in a prohibited breach of duty of public office. Abstention from voting on a contract 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 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).

Next, we examine the powers and duties of these two public positions and the potential legal relationships between county boards of commissioners and health facilities corporations. Authority for a board of county commissioners to enter into negotiations and contracts with a health facilities corporation for a variety of purposes is found in section 305 of the Municipal Health Facilities Corporations Act.

The board of trustees of a municipal health facilities corporation has been vested with authority to enter into contracts and agreements necessary to fulfill its purpose under sections 301 and 303 of the Municipal Health Facilities Corporations Act.

Here, to the extent there may be contracts between the county board of commissioners and the municipal health facilities corporation, the hospital admissions director would not be approving the contracts in that capacity since, as noted above, the power to approve the contracts is reposed in the board of trustees of the corporation. There would only be an incompatibility of public positions if the hospital admissions director were involved in contractual negotiations with the county board of commissioners on behalf of the municipal health care facility. Contesti v Attorney General, supra, 164 MichApp, at 276 and 281.

It is my opinion, therefore, that a person may simultaneously serve as the admissions director of a municipal health care facility and as a member of the board of county commissioners that created the municipal health facilities corporation that operates the facility provided the admissions director is not involved in contractual negotiations with the county board of commissioners on behalf of the municipal health care facility.

Section 30a of the county boards of commissioners act, 1851 PA 156, MCL 46.30a; MSA 5.353(1), states, in pertinent part, that:

(1) A member of the county board of commissioners of any county shall not be eligible to receive, or shall not receive, an appointment from, or be employed by an officer, board, committee, or other authority of that county except as otherwise provided by law.

Section 305(b) of the Michigan Health Facilities Corporations Act provides that a municipal health care facility owned and operated by a corporation is not considered to be owned or operated by the local governmental unit. Thus, section 30a of the county boards of commissioners act is not violated since the admissions director is employed by the health care facility, not the county.

It is my opinion, therefore, that section 30a of 1851 PA 156 does not prohibit a person from simultaneously serving as admissions director of a municipal health care facility and as a member of the board of county commissioners that created the municipal health care facilities corporation that operates the facility. (2)

Frank J. Kelley

Attorney General

(1 Pursuant to section 303(e) of the Municipal Health Facilities Corporations Act, each corporation created under that statute is a public employer separate from the local governmental unit that created the corporation) Thus, the position of admissions director at the Community Health Center in Branch County is a public position under the incompatibility of public positions statute, 1978 PA 566.

(2 Of course, section 30 of the county boards of commissioners act, 1851 PA 156, MCL 46)30; MSA 5.353, which deals with direct or indirect conflicts of interest, must also be considered in evaluating any particular contract or other business transaction with the municipal health facilities corporation that is before the county board of commissioners for approval.