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. 6808 June 29, 1994 INCOMPATIBILITY: County equalization department employee - township assessor The public positions of county equalization department employee and township assessor in the same county are incompatible and may not be held simultaneously by the same person. Ghazey Aleck Clare County Prosecuting Attorney 185 West Main P.O. Box 586 Harrison, Michigan 48625 You have asked whether an employee of a county equalization department may simultaneously serve as the assessor for a township within that county. The incompatibility of public offices is governed by 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, which, in section 2, 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. Based upon the foregoing criteria, a determination must be made whether one of these two public positions is subordinate to or supervises the other public position and, also, whether the simultaneous holding of these two public positions results in a breach of duty. Pursuant to section 24 of the General Property Tax Act, 1893 PA 206, MCL 211.1 et seq; MSA 7.1 et seq, a township assessor shall perform the annual duty of preparing the assessment roll for the township. Once this duty is completed, an assessor has no authority to change the assessment roll. See, OAG, 1981-1982, No 6007, p 450, 456 (November 18, 1981). The next step in the assessment and equalization process is county equalization which is a function of the county board of commissioners. Under section 34 of the General Property Tax Act, the county board of commissioners meets annually to examine the assessment rolls of the townships and cities and ascertain whether the real and personal property in the local units has been equally and uniformly assessed at true cash value. To aid the county boards of commissioners in the equalization function and to provide assistance to local assessors if needed, each county must establish and maintain a county tax or equalization department. In this regard, section 34(3) of the General Property Tax Act provides: The county board of commissioners of a county shall establish and maintain a department to survey assessments and assist the board of commissioners in the matter of equalization of assessments, and may employ in that department technical and clerical personnel which in its judgment are considered necessary. . . . The county board of commissioners, through the department, may furnish assistance to local assessing officers in the performance of duties imposed upon those officers by this act, including the development and maintenance of accurate property descriptions, the discovery, listing, and valuation of properties for tax purposes, and the development and use of uniform valuation standards and techniques for the assessment of property. [Emphasis added.] In addition, the Legislature added section 10d to the General Property Tax Act in 1969 PA 203 to authorize the county tax or equalization department to make a local assessment when the local unit has no certified assessor. Section 10d(6) of that statute now provides: A local assessing district which does not have an assessor qualified by certification of the board may employ an assessor so qualified. If a local assessing district does not have an assessor qualified by certification of the board, and has not employed a certified assessor, the assessment shall be made by the county tax or equalization department or the state tax commission and the cost of preparing the rolls shall be charged to the local assessing district. [Emphasis added.] Under section 34 of the General Property Tax Act, the task of county equalization belongs to the county board of commissioners. Thus, the final action on county equalization is that of the county board, not its employees. The county equalization department reviews local assessment rolls and makes recommendations to the county board concerning whether changes should be made in the local assessments to achieve the required equality and uniformity of assessments within the local unit. Prior opinions of the Attorney General have concluded that the respective positions of county commissioner and township assessor or supervisor are incompatible and may not be held simultaneously by the same person under 1978 PA 566. That result was based on the supervisory role of the countyboard of commissioners in reviewing and deciding whether to modify the assessment rolls prepared by the township assessor or supervisor. In addition, the position of township assessor or supervisor is subordinate to the position of county commissioner. See OAG, 1979-1980, No 5626, p537, 546 (January 16, 1980); and OAG, 1991-1992, No 6737, p 191 (October 28, 1992). Additional authority is found at OAG, 1975-1976, No 5050, p 506 (June 16, 1976), which concluded that, at the common law, the positions of county assessor and township supervisor were incompatible. That conclusion was based on the role of the county assessor in reviewing, for possible recommended changes, the assessment roll prepared by the township supervisor in his role as chief assessor of the township under MCL 41.61; MSA 5.52. Both OAG, 1979-1980, No 5626, at p 546, and OAG, 1991-1992, No 6737, at p 192, recognized that county tax or equalization department employees may provide assistance to a local assessor in preparing the assessment roll. Further, the Legislature has authorized a county tax or equalization department to prepare a local assessment roll when the local unit does not employ a qualified assessor. However, the Legislature has not authorized the dual holding of these two public positions. Rather, in the former situation, it has provided that a county equalization department, in its oversight.role over local assessors, may provide assistance so that the local assessors can more properly prepare the assessment roles to be reviewed by the county. In the latter situation, the Legislature has assured that where a locality cannot or does not timely prepare its own assessment role, the constitutionally mandated process of property equalization and taxation may nonetheless proceed. The county equalization department, in preparing the local assessment role, is acting in its capacity as a county equalization department and not as an agent of the local unit of government. It is the duty of employees of the county tax or equalization department to review local assessment rolls and make recommendations to the county board of commissioners concerning changes in those rolls where needed to achieve the required equality and uniformity of assessments in the local units. Thus, when the county equalization employee is also employed by the local unit, he would be reviewing his work as township assessor, thereby creating the supervision of one public position by another and the subordination of one public position to another. Abstaining from reviewing the assessment roll in the township where the county equalization department employee served as the assessor will not solve the public official's dilemma. Abstention, as a result of holding two public positions, is itself a breach of duty of public office. only vacating one of the two public positions will solve the public official's dilemma. Contesti v Attorney General, 164 Mich App 271, 280-281; 416 NW2d 410 (1987), Iv den 430 Mich 893 (1988); Wayne County Prosecutor v Kinney, 184 Mich App 681, 684, 685; 458 NW2d 674, lv den 436 Mich 887 (1990); OAG, 1989-1990, No 6637, p 125 (June 1, 1989). It is my opinion, therefore, that the public positions of county equalization department employee and township assessor in the same county are incompatible and may not be held simultaneously by the same person. Frank J. Kelley Attorney General