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. 6841 March 30, 1995 INCOMPATIBILITY: Township building inspector and board of education member A person may not simultaneously serve as a township building inspector and as a member of a local school district's board of education when a question concerning the board of education comes before the building inspector in his capacity as the official responsible for enforcing the township zoning ordinance. Honorable Clark A. Harder State Representative The Capitol Lansing, Michigan You have asked whether a person may simultaneously serve as a township building inspector and as a member of a local school district's board of education. (1) The information you have provided indicates that the school board in question has entered into leases for four suites in a building zoned for retail and business activities. Under the township's zoning ordinance, the building inspector is responsible for enforcing the provisions of the ordinance. Apparently, other tenants of the building have protested the school district's leases, contending that the school district's use of the building is in violation of the zoning ordinance, and this matter has come before the building inspector, who is also a member of the school board. The building inspector has determined that the school district's use of the building is not in violation of the zoning ordinance. 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." The offices of school board member and building inspector are not inherently incompatible, since neither position holds supervisory authority over the other, and neither is subordinate to the other. Incompatibility may result, however, if the performance of either position results in a breach of duty of the other office. The term breach of duty has been defined as a failure to protect, advance, or promote the interests of a public office. OAG, 1987-1988, No. 6418, pp 15, 17 (January 13, 1987); OAG, 1979-1980, No. 5626, pp 537, 543 (January 16, 1980). In addition, abstention from the performance of the duties of a public office itself constitutes a breach of duty. Id. at 544-545. Thus a public official cannot simply abstain from his or her duties in an attempt to avoid any incompatibility; he or she must vacate one office. 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 67 lv den 436 Mich 887 (1990). OAG, 1979-1980, No 5626, supra, at 545; OAG, 1987-1988, No 6418, supra, at 18. Accordingly, we must determine whether the simultaneous performance of the duties of school board member and township building inspector result in a breach of duty. A similar issue was addressed in two prior opinions of this office. OAG, 1961-1962, No 3621, p 257 (February 5, 1962), addressed whether a person could simultaneously serve as school board member and as a member of a township zoning board of appeals. The opinion concluded, at page 260, that the positions were incompatible under the common law, due to a potential conflict in the duties of the two offices, stating: It is entirely possible that the appeal board might be required to pass upon a matter in which the school district has an interest such as an application for permission to establish a trailer coach park, under a variation from the zoning as prescribed by a township zoning ordinance. Interest of the school district therein might result from the potential increase in school enrollment. A member of the school board serving on the board of appeals would under those circumstances be placed in an antagonistic position by reason of his duty to the school district conflicting with his duty to serve impartially as a member of the board of appeals. [ Footnotes omitted.] Under the common law, public positions were incompatible when the nature of the positions created the potential for a breach of duty. OAG, 1985-1986, No 6283, p 42 (April 2, 1985). 1978 PA 566 changed the common law, in that an incompatibility arises under the third standard of section 1(b) of the statute only when a breach of duty actually results from performance of the duties of two or more public offices. Id. Thus, OAG, 1985-1986, No 6283, supra, concluded that the positions of member of a board of education of a school district and member of a township zoning board of appeals are not incompatible until such time as a question involving the school district comes before the zoning board of appeals, thereby rendering the two public positions incompatible. Here, a question involving the school district has come before the building inspector, who is responsible for enforcing the township zoning ordinance. Clearly, the person in question has been placed in a position where his duty to the school district conflicts with his duty to impartially enforce the zoning ordinance as building inspector. This person cannot protect, advance or promote the interests of both offices in this situation. Thus, the two positions are incompatible, and the person in question must vacate one office. It is my opinion, therefore, that a person may not simultaneously serve as a township building inspector and as a member of a local school district's board of education when a question concerning the board of education comes before the building inspector in his capacity as the official responsible for enforcing the township zoning ordinance. Frank J. Kelley Attorney General (1 The opinion request also alludes to a question under the Open Meetings Act, MCL 15)