Opinion #6899

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. 6899

May 7, 1996

STATE BOARD OF EDUCATION:

Simultaneous membership on the State Board of Education and on the Saginaw Valley State University Board of Control

SAGINAW VALLEY STATE UNIVERSITY BOARD OF CONTROL:

Simultaneous membership on the State Board of Education and on the Saginaw Valley State University Board of Control

When either the State Board of Education or the Saginaw Valley State University Board of Control must review and approve a program proposed by the other board, a person serving on both boards holds two incompatible offices and therefore must resign from one of the boards.

Honorable John D. Cherry, Jr.

State Senator

The Capitol

Lansing, Michigan 48913

You have asked if a person may simultaneously serve on the State Board of Education and the Saginaw Valley State University Board of Control.

The Legislature addressed incompatibility of public offices in the incompatible public office act, 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq. Section 1(b) of the act 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 the incompatible public offices act 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.) If two offices are incompatible, a person holding both cannot abstain from any actions in an attempt to avoid the incompatibility. Abstention in that situation itself constitutes a breach of duty, and only vacation of one office will solve the public official's dilemma. 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).

The general prohibition on holding of incompatible offices is not absolute with regard to members of governing boards of institutions of higher education. Section 3(1) of the the incompatible public offices act 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.]

Analyzing the above provision, OAG, 1983-1984, No 6629, 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 the 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 limited. Section 3(7) of 1978 PA 566 states as follows:

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) 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 6629, supra, at p 328. Accordingly, we must determine whether the dual holding of the offices on the State Board of Education and the Saginaw Valley State University Board of Trustees results in a breach of duty.

A breach of duty results if a person holding two public offices is unable to protect, advance, or promote the interests of both offices simultaneously. 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 these particular offices 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.

In Const 1963, art 8, s 6, the people have provided for the governing bodies of certain institutions of higher education as follows:

Other institutions of higher education established by law having authority to grant baccalaureate degrees shall each be governed by a board of control which shall be a body corporate. The board shall have general supervision of the institution and the control and direction of all expenditures from the institution's funds .... Each board of control shall consist of eight members who shall hold office for terms of eight years, not more than two of which shall expire in the same year, and who shall be appointed by the governor by and with the advice and consent of the senate. Vacancies shall be filled in like manner.

Consistent with this constitutional provision, the Legislature established Saginaw Valley State University at 1965 PA 278, MCL 390.711 et seq; MSA 15.1852(51) et seq. Section 1 of 1965 PA 278 vests "[t]he conduct of its affairs and control of its property" in a board of control, whose powers include "[g]eneral supervision of the university" and "[c]ontrol and direction of all expenditures from the university's funds." The board of control consists of eight (8) members appointed by the Governor, with the advice and consent of the Senate, under section 2 of 1965 PA 278.

Const 1963, art 8, s 3, which creates the State Board of Education, reads, in pertinent part, as follows:

Leadership and general supervision over all public education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees, is vested in a state board of education. It shall serve as the general planning and coordinating body for all public education, including higher education, and shall advise the legislature as to the financial requirements in connection therewith. [Emphasis added.]

Thus, the State Board of Education does not have general supervisory authority over institutions of higher education that grant baccalaureate degrees, such as Saginaw Valley State University. Therefore, the Board cannot, for example, establish admittance standards for Michigan institutions of higher education that grant baccalaureate degrees. OAG, 1971-1972, No 4707, p 39, 41 (May 5, 1971). Nonetheless, the Board does have general power to plan and coordinate for public higher education, which includes the authority to require institutions of higher education to provide information about proposed university programs and the authority to advise the Legislature as to the financial needs of public higher education, even with regard to those institutions of higher education that grant baccalaureate degrees. Regents of the University of Michigan v Michigan, 395 Mich 52, 71-76; 235 NW2d 1 (1975).

In addition, under section 1531(1) of the School Code of 1976, MCL 380.1 et seq; MSA 15.4001 et seq, the State Board of Education "shall determine the requirements for and issue all licenses and certificates for teachers." Under section 1531(4) the Department of Education "shall provide to state board approved teacher education institutions state board approved guidelines and criteria for use in the development or selection of a basic skills examination ... [and] subject area examinations." Under section 1531(5), the State Board of Education develops and/or selects basic skills examinations, subject area examinations and elementary certification examinations. Under section 1531(6), "an approved teacher education institution...may develop an examination at its own expense for approval by the state board." (Emphasis added.) Under section 1531c of the same act, "[t]he state board shall develop and approve, and advocate to state universities that they adopt, an expedited 'fast-track' teacher preparation program to be available to individuals who have outstanding academic credentials, who are exceptionally gifted performers or artists, or who are outstanding professionals expert in their fields of endeavor." (Emphasis added.)

In addition, the administrative rules governing teacher certification give the State Board of Education an opportunity to consider the adequacy of university teacher education programs. For example, applicants for teacher certification must be recommended by a "sponsoring institution," which is defined as "a higher education institution which is approved for teacher education by the state board." 1989 AACS, R 390.1101(1).

The role of the State Board of Education in approving teacher education institutions is set forth in 1979 AC, R 390.1151(1) as follows:

The state board approves certain institutions and their programs for the purposes of preparing applicants for certification. Upon request of the state board, a teacher education institution shall present a report of its teacher education curricula and definitions of majors and minors. The programs of an approved teacher education institution are subject to periodic review by the state board. [Emphasis added.]

The State Board of Education has approved Saginaw Valley State University as a teacher education institution. Further, the State Board of Education periodically reviews Saginaw Valley State University's teacher education program. Indeed, a review is scheduled for the fall of 1996.

OAG, 1983-1984, No 6135, p 73, (March 17, 1983), concluded that the offices of member of the Board of Trustees of Michigan State University and Director of the Department of Licensing and Regulation were incompatible and may not be simultaneously held by the same person. That opinion was based on the state ethics act, 1973 PA 196, MCL 15.341 et seq; MSA 4.1700(71) et seq, which at that time, used a stricter standard for determining incompatibility; nevertheless, the problem of competing loyalties addressed by that opinion is relevant here.

OAG, 1983-1984, No 6135, at p 77, discussed the problems involved when a person serves on a public body that reviews and approves proposed programs of another public body on which the person also serves:

Applicants for licensure to practice architecture, professional engineering, or land surveying must meet educational requirements which shall be acceptable to the respective licensing board as set forth in 1980 PA 299, supra, s 2004. Any university or college aggrieved with the educational standards adopted by any of the respective boards may petition the Department in writing for a review of that decision. 1980 PA 299, supra, s 520. In such event, the Department of Licensing and Regulation and the appropriate board may re-investigate the school, institution or person and the curriculum of the school, institution or program. 1980 PA 299, supra, ss 520-521. Reading these sections together, it is abundantly clear that the Director of the Department of Licensing and Regulation may pass upon any petition of Michigan State University as it relates to courses and standards of the educational program of the University relating to architecture, professional engineering and land surveying in the event one were filed. Thus, the Director of the Department will become involved in the administrative decisions impacting the university in the event of such appellate review.

Because of the involvement of the Director of the Department of Licensing and Regulation in administrative matters impacting Michigan State University, OAG, 1983-1984, No 6135, at pp 77-78, concluded that the dual holding of the positions of director of the department and member of the Board of Trustees of Michigan State University may tend to impair the public official's independence of judgment or action, in violation of section 2(6) of the state ethics act. The underlying problem of competing loyalties exists under either the impairment of independence of judgment standard of section 2(6) of the ethics act or the breach of duty standard of the incompatible public offices act. Just as the Director of the Department of Licensing and Regulation might be influenced by his or her membership on the Board of Trustees of Michigan State University in reviewing and approving proposed educational standards, so may a member of the State Board of Education who is also sitting on the Board of Control of Saginaw Valley State University be influenced by the interests of the University in reviewing and approving the University's proposed teacher education program. In addition, if under section 1531c of the School Code of 1976 the State Board of Education recommended a "fast-track" teacher preparation program to state universities, a member of the Board of Control of Saginaw Valley State University might be influenced by his or her membership on the State Board of Education in passing upon the adoption of the program. A person in this situation would be unable to protect, advance and promote the interests of both offices simultaneously.

Under the common law, public positions were incompatible when the nature of the positions created the potential for a breach of duty. 1978 PA 566 changed the common law, in that an incompatibility arises under the third standard of section 1(b) only when a breach of duty actually results from performance of the duties of public office. OAG, 1979-1980, No 5626, p 537, 542 (January 16, 1980). Once either public body submits a proposal to the other public body for review and approval, the positions become incompatible for a person sitting on both bodies simultaneously.

I have been advised that the State Board of Education recently approved an experimental program at Saginaw Valley State University for the preparation of elementary teachers. The person in question was already holding both positions at the time that this matter came before the State Board of Education. As discussed above, this is the type of situation that creates an incompatibility since this person's interests as a member of the Board of Control of Saginaw Valley State University may influence her approval of the experimental program as a member of the State Board of Education.

It is my opinion, therefore, that when either the State Board of Education or the Saginaw Valley State University Board of Control must review and approve a program proposed by the other board, a person serving on both boards holds two incompatible offices and therefore must resign from one of the boards.

Frank J. Kelley

Attorney General