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. 6903

May 28, 1996

INCOMPATIBILITY:

A member of the county board of commissioners and township police chief for a township within the same county

The positions of county commissioner and township police chief are incompatible and may not be simultaneously held by the same person when the county and the township contract with each other on matters affecting the township police department, or when the county board of commissioners acts on non-contractual matters that affect the township police department.

Arthur A. Busch

Prosecuting Attorney

Genesee County

100 Court House

Flint, Michigan 48502

You have asked if a person may simultaneously hold the positions of member of the county board of commissioners and township police chief for a township within the same county.

Section 2 of the incompatible public offices act, 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, states that "a public officer or public employee shall not hold 2 or more incompatible offices at the same time." Section 1(b) of the incompatible public offices 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.

In order to determine whether the positions of county commissioner and township police chief are incompatible, we must examine the nature and duties of each position. Members of the county board of commissioners are elected officials generally responsible for managing the affairs of the county. Const 1963, art 7, ss 7, 8; MCL 46.1 et seq; MSA 5.321 et seq; MCL 46.401 et seq; MSA 5.359 (1) et seq.

The township police chief, on the other hand, is appointed by the township board under section 1(1) of 1945 PA 246, MCL 41.181(1); MSA 5.45(1)(1), and section 6(1) of 1951 PA 33, MCL 41.806(1); MSA 5.2640(6)(1). The control of a municipal police department is a function of the local municipal government. 17 Michigan Law & Practice, Municipal Corporations, s 85, p 76.

Thus, no supervisory or subordinate relationship is apparent between the offices of county commissioner and township police chief. Accordingly, the first two criteria under section 1(b) of the incompatible public offices act do not apply.

Under the third criterion, a breach of duty results if a person holding both offices cannot simultaneously protect, advance and promote the interests of each office. OAG, 1995-1996, No 6859, p 67 (July 18, 1995); OAG, 1979-1980, No 5626, pp 537, 543 (January 16, 1980). A public office is a public trust, and the courts have imposed a fiduciary standard upon public officials that requires fair dealing and disinterested conduct. Wilson v Highland Park City Council, 284 Mich 96, 104; 278 NW 778 (1938); Barkey v Nick, 11 Mich App 381, 385; 161 NW2d 445 (1968). A public officer or employee is under an obligation to serve the public with highest fidelity and undivided loyalty. 67 CJS, Officers & Public Employees, s 201, pp 656-657.

Under the common law, two positions were considered incompatible simply by virtue of a potential for a breach of duty. See, e.g., OAG, 1979-1980, No 5626, at 542. The incompatible public offices act changed the common law, so that an incompatibility results under section 1(b)(iii) only if an actual situation arises that prevents a person holding both positions from simultaneously protecting, advancing and promoting the interests of each office. Id. If two offices are incompatible, a person holding both cannot abstain from any official actions in an attempt to avoid the incompatibility. 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 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, 1979-1980, No 5626, at 545.

A breach of duty could arise in any number of situations. 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 at 684-685; Contesti v Attorney General, 164 Mich App at 280-281. A breach of duty may occur even if the person only has authority to negotiate or enter into a contract on behalf of one of the public bodies he or she serves, depending on the nature of the positions at issue and the nature of the contract. For example, OAG, 1993-1994, No 6794, p 129 (April 12, 1994), concluded that the offices of county commissioner and village marshal/police chief would become incompatible, even though the village marshal has no authority to approve contracts on behalf of the village, if the county board of commissioners and the village negotiated or entered into a contract affecting the duties of the village marshal. See also, OAG, 1993-1994, No 6795, p 132 (May 5, 1994).

A non-contractual matter can also result in a breach of duty, creating an incompatibility, if a person's interest in and/or duty to one office could affect his or her action on behalf of the other office. OAG, 1995-1996, No 6859, at 69, concluded that the offices of township trustee and district court employee in a district of the third class are incompatible when the township board provides funding to the district court. See also, OAG, 1995-1996, No 6841, p 27 (March 30, 1995), and OAG, 1985-1986, No 6283, p 42 (April 2, 1985).

Accordingly, if the county board of commissioners negotiates or enters into a contract with the township that affects the township police department, or acts on a non-contractual matter affecting the township police department, the positions of county commissioner and township police chief would become incompatible.

Your request indicates that the county and the township at issue have entered into several contracts for shared law enforcement services, which are authorized by Const 1963, art 3, s 5; Const 1963, art 7, s 28; the Urban Cooperation Act of 1967, MCL 124.501 et seq; MSA 5.4088(1) et seq; the intergovernmental contracts between municipalities act, MCL 124.1 et seq; MSA 5.4081 et seq; the intergovernmental transfers of functions and responsibilities act, MCL 124.531 et seq; MSA 5.4087(1) et seq; the municipal emergency services act, MCL 124.601 et seq; MSA 5.4087(60) et seq; and the mutual police assistance agreements act, MCL 123.811 et seq; MSA 5.3323(1) et seq. For example, the county and township are both parties, along with other local units of government, to two nearly identical consortium agreements. One is an agreement to participate in and fund an area narcotics group and the other is an agreement to participate in and fund an auto theft squad/task force. The narcotics group agreement creates a narcotics control council, which is an informal cooperative organization of police agencies within the county. The agreement's stated purpose is to:

[A]llow a unified and intensive task force approach to controlled substance law enforcement problems which do not respect individual governmental boundaries and enhance the public safety, health and welfare of people of [the] County and of the citizens of those local units of government participating.

The auto theft squad/task force agreement creates an auto theft council, whose purpose is identical to that of the narcotics council, except that it allows a unified approach to auto theft law enforcement problems.

The above consortium agreements create an incompatibility between the positions of county commissioner and township police chief, since the county commissioner must vote on annual appropriations for the narcotics group and auto theft squad in his capacity as county commissioner. This person's membership on the operations boards of these entities by virtue of his position as police chief could affect his decisions as a county commissioner, regardless of the extent of involvement by the operations boards in the running of the groups. Moreover, even if this person were not sitting on the operations boards of these groups as township police officer, any county board decisions regarding these groups do clearly affect the participating municipal police departments, including the township police department of which this person is chief. Therefore, any time the county board of commissioners acts on a matter concerning the narcotics group or auto theft task force, such as appropriations to the groups or renewal of the agreements, the person in question will have a competing interest as township police chief.

I must emphasize that the conclusion that the positions are incompatible is not a reflection on the integrity or character of the county commissioner/police chief nor a determination of actual bias in his decisions and actions. Rather, I conclude only that potential for the interests of one position to influence decisions made in the other position renders the positions incompatible. (1)

It is my opinion, therefore, that the positions of county commissioner and township police chief are incompatible and may not be simultaneously held by the same person when the county and the township contract with each other on matters affecting the township police department, or when the county board of commissioners acts on non-contractual matters that affect the township police department.

Frank J. Kelley

Attorney General

(1) Const 1963, art 7, s 28, which allows local units of government in this state to contract for the joint administration of functions and powers, also states that:

[A]n officer or employee of the state or any such unit of government or subdivision or agency thereof, except members of the Legislature, may serve on or with any governmental body established for the purposes set forth in this section and shall not be required to relinquish his office or employment by reason of such service.

Const 1963, art 3, s 5, and section 5 of the intergovernmental transfers of functions and responsibilities act contain language nearly identical to the above quotation. These provisions do not negate any of the conclusions of this opinion. Under these provisions the township police chief may serve on an operations board of an auto theft task force created by consortium agreement without relinquishing his position as police chief. These provisions do not, however, preclude a finding that the police chief's presence on that operations board creates an incompatibility with another public office, that of county commissioner, also held by that police chief.