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. 6913 August 19, 1996 INCOMPATIBILITY: City police chief and member of a county board of commissioners INCOMPATIBILITY: City police chief, deputy sheriff and member of a county board of commissioners A city police chief can simultaneously serve as a member of a county board of commissioners unless the city and county contract with one another on matters affecting the city police department, or if the county board of commissioners acts on non-contractual matters affecting the city police department. A city police chief who is deputized by the county sheriff can be a county commissioner in a county with a population under 25,000 unless the city and county contract with one another on matters affecting the city police department, or the county board of commissioners acts on non-contractual matters affecting the city police department. Honorable Walter H. North State Senator The Capitol Lansing, Michigan 48913 You have asked two questions regarding incompatibility of public positions. You first ask if a city police chief can simultaneously serve as a member of a county board of commissioners. The Legislature has 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 generally that "a public officer or public employee shall not hold 2 or more incompatible offices at the same time." If two offices are incompatible, a person holding both cannot avoid the incompatibility by simply abstaining from any official actions. Abstention in that 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 (1990), 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). 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 control of a city police department, on the other hand, is a function of the local municipal government. Royal v Ecorse Police & Fire Comm, 345 Mich 214, 219; 75 NW2d 841 (1956); Smith v Flint City Comm, 258 Mich 698, 700; 242 NW 814 (1932). Thus, no supervisory or subordinate relationship exists between the offices of county commissioner and city police chief, and the first two criteria of section 1(b) of the incompatible public offices act are not implicated. The third criterion, under which two offices are incompatible if holding both results in a breach of duty, applies when a person cannot protect, advance and promote the interests of both offices simultaneously. OAG, 1995-1996, No 6903, p - (May 28, 1996); OAG, 1979-1980, No 5626, pp 537, 543 (January 16, 1980). A breach of duty can arise in any number of situations. It is well-established that 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. Depending on the nature of the positions at issue and the nature of the contract, a breach of duty can occur even if the person holding multiple positions only has the authority to negotiate or enter into the contract on behalf of one of the public bodies he or she serves. For example, OAG, 1995-1996, No 6903, supra, concluded that the offices of township police chief and county commissioner become incompatible when the county and the township contract with each other on matters affecting the township police department, even if the township police chief has no power to negotiate or vote on behalf of the township. Similarly, OAG, 1993-1994, No 6794, p 129 (April 12, 1994) concluded that the offices of county commissioner and village marshal/police chief become incompatible if the county board of commissioners and the village negotiate or enter into a contract affecting the duties of the village marshal, even though the village marshal has no authority to approve contracts on behalf of the village. See also, OAG, 1993-1994, No 6795, p 132 (May 5, 1994). Following these prior opinions, it is clear that the positions of county commissioner and city police chief become incompatible if the county and the city contract with one another on matters affecting the city police department or the duties of the city police chief. An incompatibility can also arise out of non-contractual matters, when a public official must pass upon a matter involving or affecting the other public entity that he or she serves. See, e.g., OAG, 1995-1996, No 6841, p 27 (March 30, 1995); OAG, 1995-1996, No 6859, p 67 (July 18, 1995). In that situation, the public official's decisions could be influenced by the interests of his or her other office. Thus, OAG, 1995-1996, No 6903 concluded that the offices of township police chief and member of the county board of commissioners become incompatible when the county board of commissioners addresses non-contractual matters that affect the township police department. The same conclusion would be applicable here if the county board of commissioners were to act on non-contractual matters that affect the city police department. It is my opinion, therefore, in answer to your first question, that a city police chief may simultaneously serve as a member of a county board of commissioners unless the city and the county contract with one another on matters affecting the city police department, or the county board of commissioners acts on non-contractual matters affecting the city police department. You also ask if a city police chief who is deputized by the county sheriff can be a county commissioner. In that regard, section 30a(1) of 1851 PA 156, MCL 46.30a; MSA 5.353(1), addresses the eligibility of county commissioners to hold other county positions as follows: A member of the county board of commissioners of any county shall not be eligible to receive, or shall not receive, an appointment from, or be employed by an officer, board, committee, or other authority of that county except as otherwise provided by law. [Emphasis added.] Clearly, the above provision generally prohibits members of a county board of commissioners from accepting any other county appointment, except as otherwise provided by law. Under MCL 45.405; MSA 5.915 and MCL 51.70; MSA 5.863, the sheriff appoints and deputizes the deputy sheriffs and special deputy sheriffs. Accordingly, both OAG, 1951-1952, No 1441, p 291 (July 3, 1951) and OAG, 1951-1952, No 1374, p 200, 201 (March 15, 1951) concluded that "a member of the board of supervisors (1) is disqualified from receiving an appointment as a deputy sheriff." The prohibition on members of county boards of commissioners holding other county positions contained in section 30a(1) of 1851 PA 156 concludes with the qualifying language "except as otherwise provided by law." The Michigan courts have ruled that the phrase "provided by law," whether used in a constitutional provision or in a statute, refers to statutes enacted by the Legislature. McAvoy v H B Sherman Co, 401 Mich 419, 443; 258 NW2d 414 (1977); Greenfield Constr Co Inc v Michigan Dep't of State Highways, 58 Mich App 49, 57; 227 NW2d 223 (1975), aff'd on other grounds, 402 Mich 172; 261 NW2d 718 (1978). Thus, we need to determine if there is some other statutory provision that applies here. In 1992 PA 10 the Legislature amended section 3 of the incompatible public offices act, 1978 PA 566, to read as follows: (4) Section 2 does not do any of the following: (c) Limit the authority of the governing body of a city, village, township, or county having a population of less than 25,000 to authorize a public officer or public employee to perform, with or without compensation, other additional services for the unit of local government. [Emphasis added.] In addition, 1992 PA 10 amended section 3 of 1978 PA 566, by switching subsections (4) and (5) to subsections (5) and (6), respectively. Those subsections now provide: (5) This section does not relieve a person from otherwise meeting statutory or constitutional qualifications for eligibility to, or the continued holding of, a public office. (6) This section does not apply to allow or sanction activity constituting conflict of interest prohibited by the constitution or laws of this state. Thus, when section 3(4) was added to 1978 PA 566, by 1992 PA 10, the limitations on holding dual public positions that are now found in section 3(5) and (6) were already part of 1978 PA 566. The legislative history of 1992 PA 10 reveals that: The bills are a response to problems that have arisen in small, mostly rural communities, which often must rely on the same people to serve in several different capacities in order to fulfill the communities' needs. Larger and more urban communities normally have little need for part-time or volunteer emergency workers. Senate Legislature Analysis, HB 4262 and HB 4263, February 13, 1992. Thus, manifestly the Legislature passed 1992 PA 10 to expressly allow the holding of dual public positions in small units of local government under 25,000 people, including counties. This result is not inconsistent with section 3(5) and (6) of 1978 PA 566. Subsection (5) simply requires that the person in question must meet any other affirmative qualifications that are required for either public position. Subsection (6) deals with conflicts of interest. In that regard, it is instructive that 1992 PA 9 added section 3a to the statute dealing with conflicts of interest by public servants, 1968 PA 317, MCL 15.321 et seq; MSA 4.1700(51) et seq, to, among other things, allow members of governing bodies of cities, villages, townships and counties that have a population under 25,000 to also provide additional services for and receive compensation from their respective units of government. Section 30a(1) of 1851 PA 156 was last amended by 1978 PA 326, which added the "except as otherwise provided by law" language. The incompatibility of public positions act, 1978 PA 566, was amended by 1992 PA 10 to authorize the holding of dual public positions in counties having a population under 25,000 persons. There is a settled rule of statutory construction that a more recently enacted statute prevails over an earlier statute. In re Americana Foundation, 145 Mich App 735, 741; 378 NW2d 586 (1985), lv den 425 Mich 867; 387 NW2d 387 (1986); Irons v 61st Judicial Dist Court Employees, 139 Mich App 313, 321; 362 NW2d 262 (1984), lv den 422 Mich 980; 376 NW2d 112 (1985). In summary, the exception provided for in section 30a(1) of 1851 PA 156 for holding dual public county positions by county commissioners is satisfied by section 3(4) of the incompatible public offices act, 1978 PA 566. A county commissioner may be deputized by the sheriff and serve as a deputy sheriff in a county of less than 25,000 people. This result is consistent with OAG, 1993-1994, No 6748, p 7 (February 2, 1993), which concluded that a member of the county board of commissioners could serve as a maintenance worker for the county road commission in a county with a population less than 25,000, despite the prohibition on employment by the county found in section 30a of 1851 PA 156. A similar result was reached in OAG, 1991-1992, No 6730, p 175 (September 4, 1992), which concluded that a member of the county board of commissioners can serve as an ambulance worker for the county, if the county has a population of less than 25,000. Section 3(4) of 1978 PA 566 authorizes the holding of dual public positions in the same unit of local government if that unit has less than 25,000 people. It does not authorize the holding of dual public positions in different units of local government. Thus, an incompatibility of public position will still result if the county board of commissioners and the city contract with one another on matters affecting the city police department. An incompatibility of public position will also result if the county board of commissioners acts on non-contractual matters that affect the city police department. It is my opinion, therefore, in answer to your second question, that a city police chief who is deputized by the county sheriff can be a county commissioner in a county with a population under 25,000 unless the city and county contract with one another on matters affecting the city police department, or the county board of commissioners acts on non-contractual matters affecting the city police department. Frank J. Kelley Attorney General (1)