STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6837

February 23, 1995

TOWNSHIPS:

Member of township board, township planning commission and county planning commission

COUNTIES:

Member of township board, township planning commission and county planning commission

Only one member of the township board may also serve as a member of the township planning commission.

The office of member of a township planning commission and the office of member of a county planning commission are incompatible and may not be held simultaneously by the same person.

The office of member of a township board and the office of member of a county planning commission are incompatible and may not be held simultaneously by the same person.

Honorable Clark Harder

State Representative

The Capitol

Lansing, Michigan

You have asked several questions concerning whether an individual may simultaneously hold several specific township and county offices.

In connection with your opinion request, this office has been informed that a person was appointed to a township planning commission. He was then elected township treasurer in the same township, thus becoming a member of the township board under MCL 41.70; MSA 5.62. Next, he was appointed a member of the county planning commission in the county in which the township is located. Thus, the person simultaneously held three public offices. Further, two members of the township board served as members of the township planning commission.

After your opinion request was made, the person in question was not reappointed to the township planning commission. However, since the simultaneous holding of these three public offices may very well reoccur, this opinion will address the questions raised by the simultaneous holding of the three public offices in question.

Your first question is whether two members of the township board may also serve as members of the township planning commission.

The Legislature has prohibited the same person from holding two or more incompatible offices at the same time in section 2 of 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq. In section 1(b) of the same statute, the term "incompatible offices" is expressly defined by the Legislature to mean the performance of duties resulting in (1) the subordination of one public office to another, (2) the supervision of one office by another, or (3) a breach of duty of public office. The Legislature may, of course, expressly authorize the simultaneous holding of two public offices that would otherwise be incompatible. OAG, 1991-1992, No 6743, p 205 (December 10, 1992).

A breach of duty occurs when the public bodies on which the person serves compete with each other for tax allocations or contract with each other. Further, when a public officer abstains from voting to avoid a breach of duty, the abstention is itself a breach of duty; only vacation of one of the incompatible offices will solve the public official's dilemma. Contesti v Attorney General, 164 MichApp 271, 279-281; 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).

A township planning commission is composed of not less than five nor more than nine members appointed by the township supervisor with the approval of the township board for three-year terms. Members of the township planning commission may be removed from office by the township supervisor, after a hearing, with the approval of the township board. Section 4(1)-(3) of 1959 PA 168, MCL 125.324(1)-(3); MSA 5.2963(104)(1)-(3).

Section 4(1) of 1959 PA 168 provides that "[o]ne member of the township board shall be a member of the planning commission." This office has been informed that in the township in question, two members of the township board served on the township planning commission. Pursuant to the express directive of the Legislature, only one member of the township board may be a member of the township planning commission. Letter Opinion of the Attorney General (Representative Jack Gingrass, December 19, 1977, at p 5). Under the provisions of section 4(4) of 1959 PA 168, the township board determines the compensation, budget and appropriations for the township planning commission. Since these two positions are clearly incompatible under the incompatibility statute, 1978 PA 566, it should not be presumed that the Legislature intended to have more than one member of the township board serve on the township planning commission. The continued serving of two members of the township board on the township planning commission is contrary to section 4(1) of 1959 PA 168.

It is my opinion, therefore, in answer to your first question, that only one member of the township board may also serve as a member of the township planning commission.

Your second question is whether the office of member of a township planning commission and the office of member of a county planning commission are compatible and may be held simultaneously by the same person.

A township planning commission is charged with the responsibility of adopting a basic development plan for the township, subject to the review and approval of the county planning commission. MCL 125.328; MSA 5.2963(108). A county planning commission is composed of not less than five nor more than eleven members to be appointed as determined by the county board of commissioners. Although the Legislature has permitted a limited number of persons holding county offices or positions to serve on the county planning commission, the Legislature has not authorized a member of a township planning commission to serve on the county planning commission. MCL 125.102; MSA 5.1192(2).

As noted above, the township planning commission must submit the basic development plan and any amendments thereto to the county planning commission for review and approval. MCL 125.328; MSA 5.2963(108). This puts the person in question in the position of passing on his work as a member of the township planning commission. Thus, the office of member of a township planning commission is subordinate to and subject to the supervision of the office of member of the county planning commission in violation of section 2 of 1978 PA 556. OAG, 1991-1992, No 6691, p 67 (August 14, 1991). This result would not preclude a member of a township planning commission from serving on an advisory council to a county planning commission, under MCL 125.107; MSA 5.1192(7), which contemplates that "representative[s] of the governmental subdivisions within the county" will serve on the advisory councils.

It is my opinion, therefore, in answer to your second question, that the office of member of a township planning commission and the office of member of a county planning commission are incompatible and may not be held simultaneously by the same person.

Your third question is whether the office of member of a township board and the office of member of a county planning commission are compatible and may be held simultaneously by the same person.

This office has been informed that in the township in question, the planning commission has been given the powers and duties of the township zoning board. See, MCL 125.331; MSA 5.2963(111). The process required to adopt a township zoning ordinance is found in 1943 PA 184, MCL 125.271 et seq, MSA 5.2963(1) et seq, and includes three steps:

Clearly, 1943 PA 184 requires the township board to pass on the work of the county planning commission. A person acting simultaneously as a member of the township board and county planning commission would be required, as a member of the township board, to pass on his or her own work as a member of the county planning commission. Thus, one public office would be subordinate to and supervised by another public office in violation of section 2 of 1978 PA 556. OAG, 1991-1992, No 6691, p 67, supra.

It is my opinion, therefore, in answer to your third question, that the office of member of a township board and the office of member of a county planning commission are incompatible and may not be held simultaneously by the same person.

Frank J. Kelley

Attorney General