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. 6840

March 28, 1995

INCOMPATIBILITY:

Member of Board of Governors of Wayne State University and member of the Common Council of the City of Detroit

An individual may not simultaneously serve as a member of the Board of Governors of Wayne State University and as a member of the Common Council of the City of Detroit where the university and the city negotiate and enter into any contracts with each other.

Honorable Dan L. DeGrow

State Senator

The Capitol

Lansing, MI

You have asked whether an individual may simultaneously serve as a member of the Board of Governors of Wayne State University and as a member of the Common Council of the City of Detroit. You indicate that Wayne State University and the City of Detroit have contractual agreements over land sales and acquisitions as well as the provision of utility services by the city to the university. These transactions require official action by the Board of Governors and the Common Council.

The Legislature addressed incompatibility of public offices in 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq. Section 1(b) of 1978 PA 566 defines "incompatible offices" as follows:

"Incompatible offices" means public 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.

Section 2 of 1978 PA 566 states that "[e]xcept as provided in section 3, a public officer or public employee shall not hold 2 or more incompatible offices at the same time." (Emphasis added.) Section 3(1) of 1978 PA 566 provides as follows:

Section 2 does not prohibit a public officer's or public employee's appointment or election to, or membership on, a governing board of an institution of higher education. However, a public officer or public employee shall not be a member of governing boards of more than 1 institution of higher education simultaneously, and a public officer or public employee shall not be an employee and member of a governing board of an institution of higher education simultaneously. [Emphasis added.]

Accordingly, section 3(1) allows a public official to hold dual offices, even if the offices are otherwise incompatible, if one of the offices is on a governing board of an institution of higher education. OAG, 1983-1984, No 6229, p 327, 328 (June 18, 1984), acknowledged that, "the Legislature has seen fit to provide an exception to the prohibition against the holding of incompatible public offices or positions in the case of the election or appointment of a public officer or employee to membership on a governing board of an institution of higher education."

However, the exception for membership on a university governing board is not absolute. As OAG, 1983-1984, No 6229, supra, also noted, what is now section 3(7) of 1978 PA 566 states:

This section does not allow or sanction specific actions taken in the course of performance of duties as a public official or as a member of a governing body of an institution of higher education that would result in a breach of duty as a public officer or board member. [Emphasis added.]

Thus, section 3(7) prohibits a person from sitting on a governing board of a university and simultaneously holding another office if the dual holding of these offices results in a breach of duty of either office.

A breach of duty arises when a public official stands on both sides of a contract between two public entities. Wayne County Prosecutor v Kinney, 184 Mich App 681, 684-685; 458 NW2d 674, lv den 436 Mich 887 (1990); Contesti v Attorney General, 164 Mich App 271, 280-281; 416 NW2d 410 (1987), lv den 430 Mich 893 (1988) OAG, 1993-1994, No 6756, p 27 (March 30, 1993); OAG 1979-1980, No 5626, p 537, 545 (January 16, 1980). A public official cannot abstain from negotiating or voting on the contract in an attempt to avoid the incompatibility. Since abstention itself constitutes a breach of duty of public office, only vacation of one office will solve the public official's dilemma. Wayne County Prosecutor v Kinney, 184 Mich App, at 684-685; Contesti v Attorney General 164 Mich App, at 280-281; OAG, 1979-1980, No 5626, at 545. To the extent that Wayne State University and the City of Detroit are engaged in the negotiation and approval of contracts between the university and the city, the dual holding of the positions of member of the Board of Governors of Wayne State University and member of the Common Council of the City of Detroit would result in a breach of duty.

It is my opinion, therefore, that an individual may not simultaneously serve as a member of the Board of Governors of Wayne State University and as a member of the Common Council of the City of Detroit where the university and the city negotiate and enter into any contracts with each other.

Frank J. Kelley

Attorney General