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. 6834

February 3, 1995

TOWNSHIPS:

Self-appointment of township supervisor as a member of the township planning commission

A township supervisor may not appoint himself or herself as a member of the township planning commission.

Honorable Susan Grimes Munsell

State Representative

The Capitol

Lansing, MI

You have asked if a township supervisor may appoint himself or herself as a member of the township planning commission.

Township planning commissions are authorized by 1959 PA 168, MCL 125.321 et seq; MSA 5.2963(101) et seq. The commission is established by resolution of the township board under section 3(1) of that statute.

In section 4(2) of 1959 PA 168, the Legislature has provided:

All members of the planning commission shall be appointed by the township supervisor with the approval of the township board. Members may be removed by the township supervisor, after a hearing, with the approval of the township board.

In section 4(1) of the same statute, the Legislature has required that "[o]ne member of the township board shall be a member of the planning commission."

The powers of appointment to and removal from the office of member of the township planning commission are reposed in the township supervisor under section 4(2) of 1959 PA 168. The powers of appointment and removal are exercised by the township supervisor "with the approval of the township board." Research has failed to disclose any Michigan appellate court decision defining that term. Guidance may be obtained from the decision of the New Mexico Court of Appeals in Bernalillo Board of County Commissioners v Padilla, 111 NM 278; 804 P2d 1097, 1105-1106 (NMCtApp, 1990), which construed the statutory term "with the approval of" according to its common meaning "as establishing an advise-and-consent relationship between the [appointing] county treasurer and the [advising and consenting] board of finance." Since the Legislature has conferred the appointment and removal powers on the township supervisor, rather than on the township board, the common law rule prohibiting self-appointment by a public officer must be addressed.

At the common law, public officers with power of appointment were disqualified from appointing themselves to a public office. 3 McQuillin, Municipal Corporations (3d ed, 1990), Sec. 12.75, p 378. Arbogast v Shields, 123 WVa 167, 14 SE2d 4, 7 (1941); State ex rel v Thompson, 193 Tenn 395; 246 SW2d 59, 61-62 (1952); Ehlinger v Clark, 117 Tex 547; 8 SW2d 666, 674 (1928). Appointment of oneself was held to be against public policy and the appointment was void. E.g., Meglemery v Weissinger, 140 Ky 353; 131 SW 40, 41 (1910). Where the statute does not expressly authorize self-appointment, "the appointment of someone other than self is always contemplated." Welsch v Wilson, 218 Ga 843; 131 SE2d 194, 196 (1963).

In addition to the common law, the Michigan Legislature has passed a statute prohibiting the holding of two or more incompatible public offices. 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq. Under section 1(b)(i) and (ii) of that statute, two public offices are incompatible when holding the two offices simultaneously results in the subordination or supervision of one public office by another. One public office is subordinate to another and subject to supervision by another when the incumbent of one public office has the power of appointment or removal over the other public office. OAG, 1979-1980, No 5626, p 537, 542 (January 16, 1980).

In light of the common law rule against self-appointment to public office, and the provisions of Michigan's incompatibility statute that prohibit a person from holding two public offices when one public office has the power of appointment or removal over the other public office, it must be concluded that the Legislature did not intend, in section 4 of 1959 PA 168, to authorize the township supervisor to appoint himself or herself to the township planning commission.

It is my opinion, therefore, that a township supervisor may not appoint himself or herself as a member of the township planning commission.

Frank J. Kelley

Attorney General