STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6791

March 11, 1994

INCOMPATIBILITY:

Township trustee and public school teacher

INCOMPATIBILITY:

Township planning commission member and assistant superintendent of a school district

INCOMPATIBILITY:

Attorney for a township, board of county road commissioners and a school district

A person may simultaneously occupy the public positions of township trustee and public school teacher in a school district located in that township.

A person may simultaneously occupy the public positions of member of a township planning commission and assistant superintendent of a school district located in that township.

A person may simultaneously serve as township attorney and also provide legal services to a board of county commissioners and to a school district unless the attorney represents two of the public bodies in the same legal matter in which the two legal bodies have conflicting legal interests.

Honorable Sal Rocca

State Representative

The Capitol

Lansing, Michigan 48913

Dear Representative Rocca:

You have asked four questions regarding incompatibility of public positions. Each question will be stated and addressed seriatim.

Your first question is whether a person may simultaneously occupy the public positions of township trustee and public school teacher in a school district located in that township.

1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, governs the incompatibility of public positions. Section 2 of that statute prohibits a public officer or employee from holding two or more incompatible offices simultaneously. Section 1(b) of the same statute defines incompatible offices as:

It is well established that 1978 PA 556 applies to public positions held by both public officers and public employees. Wayne County Prosecutor v Kinney, 184 MichApp 681, 683; 458 NW2d 674, lv den 436 Mich 887 (1990); OAG, 1979-1980, No 5626, p 537, 541 (January 16, 1980). Therefore, both the township trustee and the public school teacher are subject to the provisions of this statute.

It is no longer a potential breach of duty which renders two public positions incompatible. Rather a breach of duty occurs only when the actual performance of the duties of the two offices results in a breach of duty of a public office. OAG, 1979-1980, No 5626, p 537, 542, supra. Abstention from voting 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, at pp 684-685.

The positions of public school teacher and township trustee are neither subordinate to nor supervisory over each other. The remaining issue, therefore, is whether the actual performance of the duties of each position results in a breach of duty of public office pursuant to section 1(b)(iii) of 1978 PA 566.

This office has been advised that in the county in question, the allocation of millage by the county tax allocation board occurs on an annual basis pursuant to the Property Tax Limitation Act, 1933 PA 62, MCL 211.201 et seq; MSA 7.61 et seq. As a result, the school district and township are in competition for the allocation of millage by the county tax allocation board.

OAG, 1983-1984, No 6214, p 274 (April 3, 1984), concluded that the offices of township trustee and superintendent of schools for a school district located in the same county where the county tax allocation board annually allocates millage are incompatible due to the competing interests of the township and school district before the tax allocation board. The Michigan Court of Appeals reached the same conclusion in Contesti v Attorney General, 164 MichApp, at pp 281-282.

However, a Letter Opinion of the Attorney General to Senator Robert W. Davis dated September 11, 1975, ruled that the positions of township supervisor and teacher/principal within the same township are compatible and may be held simultaneously by the same person. The conclusion reached in the Davis letter, at page 2, was based on the following distinction between the powers and duties of public school teachers and superintendents:

By the same reasoning, a public school teacher, as a public employee, would not be involved, on behalf of the school district, in the negotiation or approval of any contract between the school district and the township.

It is my opinion, therefore, in response to your first question, that a person may simultaneously occupy the public positions of township trustee and public school teacher in a school district located in that township.

Your second question is whether a person may simultaneously occupy the public positions of member of a township planning commission and assistant superintendent of a school district located in that township.

Applying the criteria of section 1(b) of 1978 PA 556, the positions of member of a township planning commission and assistant superintendent of a school district located in that township are neither subordinate to nor supervisory over each other. Therefore, a review of the performance of the duties of each position is necessary to determine whether the simultaneous holding of these two public positions would result in a breach of duty of public office under section 1(b)(iii) of 1978 PA 556.

Sections 3 and 4(2) of the township planning act, 1959 PA 168, MCL 125.321 et seq; MSA 5.2963(101) et seq, provide that a township board may create a township planning commission, the members of which are appointed by the township supervisor with the approval of the township board. The township planning commission may adopt a basic plan which is then referred to the county planning commission for approval under section 8 of the statute. Section 11 of the same statute authorizes the township board, by resolution, to transfer to the planning commission the powers of a zoning board created under the Township Rural Zoning Act, 1943 PA 184, MCL 125.271 et seq; MSA 5.2963(1) et seq.

Section 5(3) of 1959 PA 168 provides:

The township planning commission has no authority under 1959 PA 168 to enter into contracts. The commission is only authorized to recommend that a certain contract be entered into by the township board. Therefore, a member of the commission is not placed in a position to negotiate or enter into contracts on behalf of the township with the school district.

While, as set forth in the answer to your first question, an assistant superintendent may be required to defend and further the interests of the school district before the county tax allocation board, that individual, as a member of the township planning commission, has no similar duty or responsibility on behalf of the township. Thus, a person occupying these two public positions is not placed in a position of representing the interests of these two entities before the county tax allocation board.

It is my opinion, therefore, in response to your second question, that a person may simultaneously occupy the public positions of member of a township planning commission and assistant superintendent of a school district located in that township.

Your third question is whether a person may simultaneously serve as a township attorney and also provide legal services to a board of county road commissioners and to a school district.

A township board may "employ" an attorney. MCL 41.187; MSA 5.45(7). County road commissioners are authorized to "employ" an attorney. MCL 247.457; MSA 9.751. The board of education of a school district is empowered to "employ" an attorney. MCL 380.1253; MSA 15.41253.

An attorney employed by a public body has been determined to be an "employee" of the public body and, thus, subject to the provisions of the incompatible offices act, 1978 PA 566. See, OAG, 1991-1992, No 6717, p 139 (April 7, 1992).

The positions of attorney for the three public bodies at issue do not involve supervisory or subordinate relationships. Thus, the first two criteria of 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.

OAG, 1979-1980, No 5626, p 543, supra, stated:

In general, the duties of an attorney for the township, county road commission and school district are to act as legal advisor to each public body and to represent each in legal proceedings. To the extent that the attorney represents each public body in matters that do not involve either of the other two public bodies, no question arises whether there is a breach of duty causing an incompatibility of public position. A breach of duty question would only arise if the attorney represented two of the public bodies in the same legal matter in which the public bodies had conflicting legal interests. For example, a breach of duty would occur, giving rise to an incompatibility of public position, if the attorney represented any two of the public bodies in negotiating or entering into a contract between the two public bodies. OAG, 1991-1992, No 6717, p 139, supra.

It is my opinion, therefore, in response to your third question, that a person may simultaneously serve as township attorney and also provide legal services to a board of county commissioners and to a school district unless the attorney represents two of the public bodies in the same legal matter in which the two legal bodies have conflicting legal interests.

Your fourth question is whether a member of a county board of commissioners who serves as chairman of the justice and public safety committee may accept appointments from the circuit court in that county to defend indigents.

You advise that the committee on justice and public safety makes recommendations as to allowances, personnel, equipment and budget of the circuit court.

An indigent criminal defendant is entitled to services of an attorney appointed by the court at public expense. MCL 775.16; MSA 28.1253. People v Nard, 78 MichApp 365, 368; 260 NW2d 98 (1977).

The question you have asked has been posed on at least two prior occasions. Each time, a letter opinion was issued declining to determine the authority of a circuit court to appoint a person serving as a county commissioner to represent indigents at county expense because, while opinions of the Attorney General command the allegiance of state agencies, they are not binding on the courts, citing Traverse City School District v Attorney General, 384 Mich 390, 410 n 2; 185 NW2d 9 (1971). See, Letter Opinion of the Attorney General to Senator William Faust, dated July 16, 1979, and Letter Opinion of the Attorney General to Representative Larry E. Burkhalter, dated May 5, 1980.

The letter opinion to Senator Faust, at p 2, concluded:

Frank J. Kelley

Attorney General