STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6794

April 12, 1994

INCOMPATIBILITY:

Member of county board of commissioners and village marshal

A person may simultaneously occupy the public positions of member of the board of county commissioners and village marshal for a village within the same county provided a contract is neither negotiated nor entered into between the village and the county board of commissioners affecting the duties of the village marshal.

The simultaneous holding of the public positions of member of a board of county commissioners and marshal of a village does not violate 1968 PA 317.

Honorable Allen Lowe

State Representative

The Capitol

Lansing, Michigan

You have asked two questions regarding incompatibility of public office and conflict of interest. Your first question is whether a person may simultaneously occupy the public positions of member of the board of county commissioners and the full-time marshal and chief of police of a village located within the same county which has a county population of less than 25,000.

At the outset, it must be noted that the positions of full-time village marshal and chief of police are one and the same. Section 13 of 1895 PA 3, MCL 64.13; MSA 5.1255, states "[t]he marshal is the chief of police of the village."

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:

However, in 1992 PA 10, the Legislature clearly recognized the need for counties of limited population to utilize their public officials and employees to fill all of the available public positions. Section 3 of 1978 PA 566 was amended by 1992 PA 10 and now provides, in relevant portion:

Kalkaska County, with a population under 25,000, is within the ambit of 1992 PA 10. However, 1992 PA 10 does not authorize one unit of government to approve the provision of additional services of a public employee or officer for a separate unit of government. Therefore, the exception to the holding of incompatible positions permitted by 1992 PA 10 does not apply where the two public positions are with two different units of government.

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

The village marshal is appointed by the village president, by and with the consent of the council. MCL 62.2; MSA 5.1216. As a police officer, the marshal is subject to the direction of the president and council, or, if provided by ordinance, the village manager. MCL 64.13; MSA 5.1255. The village marshal does not have responsibilities that encompass all of the operations of village government.

The office of county commissioner does not supervise a village marshal, nor is the office of county commissioner subordinate to the position of village marshal. Thus, the first two criteria of section 1(b) of 1978 PA 566 are not met. The remaining issue is whether the performance of the duties of each position 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 public positions incompatible. OAG, 1979-1980, No 5626, p 537, 542 (January 16, 1980). Rather, a breach of duty occurs only when the actual performance of the duties of one of the public positions results in a prohibited breach of duty of public position. 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 position 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).

Const1963, art 7, Sec. 28, directs the Legislature to authorize local governmental units to enter into agreements with one another for the joint administration of any functions or powers which each would have the power to perform separately. Const1963, art 7, Sec. 28, has been implemented by the Legislature in a number of statutes. Specifically, 1967 PA 236, MCL 123.811 et seq; MSA 5.3323(1) et seq, authorizes two or more counties, cities, villages, or townships to enter into mutual police assistance agreements. 1951 PA 35, MCL 124.1 et seq; MSA 5.4081 et seq; authorizes intergovernmental contracts between municipal corporations for the ownership, operation, or performance of any property, facility, or service which each would have the power to own, operate or perform separately.

The power to approve contracts on behalf of the village is vested in the village council. MCL 61.12; MSA 5.1212, MCL 65.1; MSA 5.1264, Moore v Detroit, 164 Mich 543, 549; 129 NW 715 (1911). Thus, the village marshal would not be approving any contracts between the county and the village. There would only be an incompatibility of public positions if a contract were negotiated or entered into between the village and the county board of commissioners affecting the duties of the village marshal. Contesti, supra, 164 MichApp, at pp 276, 281; OAG, 1993-1994, No 6781, p __ (January 7, 1994). OAG, 1979-1980, No 5626, p 537, 543 (January 16, 1980).

It is my opinion, therefore, in response to your first question, that a person may simultaneously occupy the public positions of member of the board of county commissioners and village marshal for a village within the same county provided a contract is neither negotiated nor entered into between the village and the county board of commissioners affecting the duties of the village marshal.

Your second question asks whether the simultaneous holding of the two public positions discussed in your first question constitutes a violation of 1968 PA 317, MCL 15.321 et seq; MSA 4.1700(51) et seq. That statute regulates the conduct of public servants in regard to conflicts of interest which may arise from contracts entered into between a public servant, in his private capacity, and the public entity he serves. That statute does not apply to the present situation because no contract exists between the public servant, in his private capacity, and the board of county commissioners or the village. See, Contesti, supra, 164 MichApp, at pp 280-281.

It is my opinion, therefore, that the simultaneous holding of the public positions of member of the board of county commissioners and marshal of a village does not violate 1968 PA 317.

Frank J. Kelley

Attorney General