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. 6885

January 11, 1996

INCOMPATIBILITY:

The offices of county clerk/register of deeds and member of the Board of Trustees at Michigan State University

The positions of county clerk/register of deeds and member of the Board of Trustees at Michigan State University are not incompatible unless the county and the university negotiate or enter into a contract or the county and university are placed on opposing sides of a non-contractual matter.

Honorable Eric Bush

State Representative

The Capitol

Lansing, Michigan 48913

You have asked whether a person may simultaneously hold the offices of county clerk/register of deeds and member of the Board of Trustees at Michigan State University (MSU).

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, however, provides as follows:

Section 2 shall not be construed to 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 more than 1 governing board of an 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.]

Analyzing the above provision, OAG, 1983-1984, No 6229, pp 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 election or appointment of a public officer or employee to membership on a governing board of an institution of higher education ." See also OAG, 1995-1996, No 6840, p 25 (March 28, 1995).

Nonetheless, the exception for membership on a university governing board is not absolute. Section 3(7) of 1978 PA 566 states as follows:

This section shall not be construed to 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 which would result in a breach of duty as a public officer or board member. [ Emphasis added.]

Thus, section 3(7) of 1978 PA 566 prohibits a person from sitting on a governing board of a university and simultaneously holding another public office if the dual holding of these positions results in a breach of duty of either office. OAG, 1995-1996, No 6840, supra; OAG, 1983-1984, No 6218, pp 286, 288 (April 18, 1984).

Accordingly, we must determine whether the dual holding of the offices of MSU Trustee and county clerk/register of deeds results in a breach of duty. Previous opinions of the Attorney General have defined the term "breach of duty," as used in 1978 PA 566, 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). Whether the dual holding of the offices of county clerk/register of deeds and MSU Trustee results in a failure to protect, advance or promote the interests of either office depends both upon the duties of these positions and specific factual situations.

Const 1963, art 8, Sec. 5, establishes the Board of Trustees of Michigan State University and gives the board "general supervision of its institution and the control and direction of all expenditures from the institution's funds." Further duties and powers of the Board of Trustees are set forth in 1909 PA 269, MCL 390.101 et seq; MSA 15.1121 et seq.

Const 1963, art 7, Sec. 4, creates the offices of county clerk and register of deeds and allows the county board of commissioners to combine the offices of county clerk and register of deeds. See also, MCL 168.200; MSA 6.1200. The duties and functions of county clerks are not set forth in any one statute, but include, among other things, acting as clerk to the the county board of commissioners, (1) acting as clerk for the county circuit court, (2) acting as clerk for the county board of road commissioners, (3) acting as clerk for county tax allocation board, (4) acting as secretary to the county plat board, (5) acting as a member of the county apportionment commission, (6) and acting as a member of the board of county election commissioners. (7)

Like the county clerk, the duties of the register of deeds are set forth in several different statutes. In general, the county register of deeds is responsible for keeping books and records and recording such instruments required or authorized by law to be recorded. (8) In addition, like the county clerk, the register of deeds is a member of the county plat board, though when the positions are combined the county clerk/register of deeds holds only one seat on the board. (9)

A breach of duty will result if a matter arises involving the county or one of the county boards on which the county clerk/register of deeds sits and MSU, placing the person in question in a situation where he or she must represent the interests of the county and the university simultaneously. For example, a breach of duty arises if a public official is placed on both sides of a contract. 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). A non-contractual matter can create a breach of duty as well. See, e.g., OAG, 1995-1996, No 6841, p 27 (March 30, 1995) (concluding that the positions of building inspector and school district board of education member are incompatible when a question concerning the board of education comes before the building inspector), and OAG, 1985-1986, No 6283, p 42 (April 2, 1985) (concluding that the positions of member of zoning board of appeals and board of education member are incompatible if a matter involving the school district comes before the zoning board of appeals).

If a matter arises between the university and the county, a breach of duty will result even if the person in question does not have the power to vote on the matter on behalf of both the county and the university. This is so because members of the MSU Board of Trustees owe a fiduciary duty to the university, while county clerks/register of deeds are public officers owing a fiduciary duty to the county. OAG, 1993-1994, No 6747, p 5 (January 14, 1993), concluded that the offices of deputy township supervisor and county road commission would become incompatible if the township and county contracted with each other, even though the deputy township supervisor has no authority to vote on behalf of the township board and even if the deputy township supervisor does not negotiate on behalf of the board, explaining, at p. 6, as follows:

If a contract were negotiated between the county road commission and the township board, and the deputy township supervisor were involved in negotiating the contract, either as a substitute for the supervisor or as the supervisor's assistant, there would be an incompatibility of public position. OAG, 1991-1992, No 6718, p 142, supra.

The same result would be obtained even if the county road commission and the township board entered into a contract and the deputy township supervisor were not involved in negotiating the contract because the deputy township supervisor is an officer of the township. As an officer of the township, it is clear that:

In addition to the duties expressly imposed upon public officials by statute, the common law has long recognized the fiduciary obligation a public official owes the public entity he or she serves. In People v Township Board of Overyssel, 11 Mich 222, 225 (1863), the Court stated:

"All public officers are agents, and their official powers are fiduciary. They are trusted with public functions for the good of the public; to protect, advance and promote its interests, and not their own. And, a greater necessity exists than in private life for removing from them every inducement to abuse the trust reposed in them,"

Thus, within the context of the incompatibility statute, a breach of duty would occur when the simultaneous holder of two public offices failed to protect, advance and promote the interests of both public offices.

OAG, 1979-1980, No 5626, p 537, 543 (January 16, 1980).

Here, when the county road commissioner votes on a contract with the township board, he also has a competing duty to protect, advance and promote the interests of the township of which he is a public officer. Thus, these competing legal duties on both sides of the contract give rise to a breach of duty under section 1(b)(iii) of 1978 PA 566 if the county road commission and the township board negotiate or enter into a contract. [ Emphasis added.]

Similarly, if the university and the county sit on opposite sides of a contractual or non-contractual matter, a person who is both a member of the Board of Trustees and a county clerk/register of deeds will hold competing duties of loyalty to the university and the county. If this person votes on behalf of either the university or the county in such a situation, he or she will be unable to protect, advance and promote the interests of both offices, and a breach of duty results. Abstention from voting will not remedy the incompatibility, since abstention in such a situation itself constitutes a breach of duty; only vacation of one office will solve the public official's dilemma. Wayne County Prosecutor v Kinney, 184 Mich App, supra, 684-685; Contesti v Attorney General 164 Mich App supra, pp 280-281; OAG, 1979-1980, No 5626 at 545.

It is my opinion, therefore, that the positions of county clerk/register of deeds and member of the Board of Trustees at Michigan State University are not incompatible unless the county and the university negotiate or enter into a contract or the county and university are placed on opposing sides of a non-contractual matter.

Frank J. Kelley

Attorney General

(1) MCL 46.4; MSA 5.324, and MCL 46.5; MSA 5.325.

(2) Const 1963, art 6, Sec. 14.

(3) MCL 224.9; MSA 9.109.

(4) MCL 211.206; MSA 7.66.

(5) MCL 560.102; MSA 26.430(102).

(6) MCL 46.403; MSA 5.359(3).

(7) MCL 168.23; MSA 6.1023.

(8) See, e.g., MCL 53.94; MSA 5.986, MCL 565.24; MSA 26.542, MCL 565.452; MSA 26.732, MCL 565.491; MSA 26.761, MCL 565.501; MSA 26.771, and MCL 565.551; MSA 26.791.

(9) MCL 560.102(k); MSA 26.430(102)(k).