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. 6795 May 5, 1994 INCOMPATIBILITY: Offices of undersheriff and city council member An individual may simultaneously occupy the office of undersheriff and the office of city council member within the same county, but if a contract is negotiated or entered into between the county board of commissioners or the sheriff's department and the city which involves the operation of the sheriff's department, the person must vacate one of the two public offices. The constitutional prohibition against a sheriff holding any other office found in Const1963, art 7, Sec. 6, does not result in an incompatibility of public offices when an undersheriff is also a city council member. Honorable Phil Arthurhultz State Senator The Capitol Lansing, Michigan You have asked two questions regarding incompatibility of public offices. Your first question is whether an individual may simultaneously occupy the office of undersheriff and the office of city council member within 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 neither subordinate nor subject to the supervision of a city council. Likewise, a city council member would not be subordinate to, nor supervised by, an undersheriff. Thus, 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). Const1963, art 7, Sec. 28, directs the Legislature to authorize interlocal agreements for governmental services. The Legislature has implemented art 7, Sec. 28, by enacting a number of statutes authorizing intergovernmental cooperation. A city is authorized to enter into an agreement with a county for the provision of emergency law enforcement services by the county sheriff within the city. MCL 123.811; MSA 5.3323(1), provides: Two or more counties, cities, villages, or townships, whether adjacent to each other or not, may enter into agreements to provide mutual police assistance to one another in case of emergencies. In addition, a city and county may enter into contracts pursuant to MCL 124.2; MSA 5.4082, which states: Any municipal corporation shall have power to join with any other municipal corporation, or with any number or combination thereof by contract, or otherwise as may be permitted by law, for the ownership, operation, or performance, jointly, or by any 1 or more on behalf of all, of any property, facility or service which each would have the power to own, operate or perform separately. Moreover, a city and a county may enter into an interlocal agreement pursuant to the Urban Cooperation Act of 1967, 1967 (ExSess) PA 7, MCL 124.501 et seq, MSA 5.4088(1) et seq. While the foregoing statutes provide that contracts may be entered into between governmental units, I am advised that in practice some sheriffs' departments contract directly with municipalities. OAG, 1981-1982, No 5878, p 121 (April 17, 1981). Therefore, if a contract were negotiated between either the county board of commissioners or the county sheriff's department and the city council involving the operation of the sheriff's department, there would be an incompatibility of public positions. Furthermore, abstention from voting on the contract would constitute a breach of duty. 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. The same result would occur even if the undersheriff were not involved in negotiating the contract because the undersheriff is an officer of the sheriff's department. Statutory provisions dealing with the office of undersheriff provide, in relevant portions: The sheriff of each county shall, as soon as may be after entering upon the execution of his office, appoint some proper person under sheriff of the same county, who shall also be a general deputy, to hold during the pleasure of such sheriff; and as often as a vacancy shall occur in the office of such under sheriff, or he become incapable of executing the same, another shall in like manner be appointed in his place. [ Emphasis added.] MCL 51.71; MSA 5.864. If a vacancy occurs in the office of sheriff of a county, the undersheriff of the county shall in all things execute the office of sheriff, until a sheriff is elected and qualified.... MCL 51.72; MSA 5.865. Every appointment of an under sheriff, or of a deputy sheriff, and every revocation thereof, shall be in writing under the hand of the sheriff, and shall be filed and recorded in the office of the clerk of the county; and every such under sheriff or deputy shall, before he enters upon the duties of his office, take the oath prescribed by the twelfth (1) article of the constitution of this state.... MCL 51.73; MSA 5.866. As an officer of the sheriff's department, it is clear that: In addition to the duties expressly imposed upon public officials by statute, the common law has long recognized the fiduciary obligation a public official owes the public entity he or she serves. In People v Township Board of Overyssel, 11 Mich 222, 225 (1863), the Court stated: "... All public officers are agents, and their official powers are fiduciary. They are trusted with public functions for the good of the public; to protect, advance and promote its interests, and not their own. And, a greater necessity exists than in private life for removing from them every inducement to abuse the trust reposed in them, ..." Thus, within the context of the incompatibility statute, a breach of duty would occur when the simultaneous holder of two public offices failed to protect, advance and promote the interests of both public offices. OAG, 1979-1980, No 5626, p 537, 543 (January 16, 1980). Here, when the city council member votes on a contract involving the county sheriff's department, he also has a competing duty to protect, advance and promote the interests of the sheriff's department of which he is a public officer. Thus, these competing legal duties on both sides of a contract give rise to a breach of duty under section 1(b)(iii) of 1978 PA 566 if the county board of commissioners or the sheriff's department and the city council negotiate or enter into a contract relating to the county sheriff's department. If that situation arises, the person in question must vacate one of the two public offices. OAG, 1993-1994, No 6747, p 5 (January 14, 1993). It is my opinion, therefore, that an individual may simultaneously occupy the office of undersheriff and the office of city council member within the same county, but if a contract is negotiated or entered into between the county board of commissioners or the sheriff's department and the city which involves the operation of the sheriff's department, the person must vacate one of the two public offices. (2) Your second question asks whether the constitutional prohibition against a sheriff holding any other office found in Const1963, art 7, Sec. 6, results in an incompatibility of public offices when an undersheriff is also a city council member. Const1963, art 7, Sec. 6, provides: The sheriff may be required by law to renew his security periodically and in default of giving such security, his office shall be vacant. The county shall never be responsible for his acts, except that the board of supervisors may protect him against claims by prisoners for unintentional injuries received while in his custody. He shall not hold any other office except in civil defense. [ Emphasis added.] The foregoing prohibition applies to the office of sheriff. Until such time as the undersheriff succeeds to the office of sheriff, the prohibition against holding another office is not applicable. However, should the undersheriff become sheriff while still a member of the city council, the sheriff must then resign the city council seat pursuant to Const1963, art 7, Sec. 6, to remain sheriff. It is my opinion, therefore, that the constitutional prohibition against a sheriff holding any other office found in Const1963, art 7, Sec. 6, does not result in an incompatibility of public offices when an undersheriff is also a city council member. Frank J. Kelley Attorney General (1 Now Const1963, art 11, Sec)
(2 You have also requested that this opinion be contrasted with Letter Opinion of the Attorney General to Senator William Faust dated May 8, 1980)
This portion of your request involves the interpretation of distinctly different provisions of two separate city charters. Since local units of government employ or retain their own attorneys, the Attorney General, as chief legal advisor for the State of Michigan, and its agencies, officers, and employees, does not customarily issue opinions interpreting local charters.