STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6918

October 2, 1996

INCOMPATIBILITY:

Positions of township clerk and member of a board of education of a local school district

The offices of township clerk and member of a board of education of a local school district are not incompatible unless the township board and the board of education negotiate or enter into a contract, one of the two public bodies acts upon a non-contractual matter affecting the other public body or the township clerk fails to perform duties imposed by section 1801(2) of the Revised School Code.

Honorable Clark A. Harder

State Representative

The Capitol

Lansing, Michigan 48913

You have asked that we review the conclusion of the Letter Opinion of the Attorney General to Senator Robert W. Davis, dated May 25, 1978, which found that the offices of township clerk and member of a board of education of a school district are incompatible. Specifically, you ask whether the passage of the constitutional amendment known as Proposal A changes the conclusion of that opinion.

A review of the reasoning of the opinion to Senator Davis is necessary in order to fully explain the effect of Proposal A and its implementing legislation. In finding the offices of township clerk and member of a board of education incompatible, that opinion first relied on II OAG, 1956, No 2692, p 432 (July 24, 1956), which concluded that the offices of school board member and township clerk were incompatible because the township board and the school board competed for allocated millage before the county tax allocation board.

Both the opinion to Senator Davis and II OAG, 1956, No 2692, supra, relied on the common law doctrine of incompatibility of public positions. Subsequently, the Legislature passed the incompatible public offices act, 1978 PA 566, MCL 15.181 et seq, MSA 15.1120(121) et seq. Section 2 of that act prohibits public officers and employees from holding "2 or more incompatible offices at the same time." Section 1(b) of the act defines "incompatible offices" as follows:

(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.

Even after the passage of the incompatible public offices act, this office and the courts continued to find under section 1(b)(iii) that the competition for tax dollars before the county tax allocation board rendered positions on a township board incompatible with either membership on a board of education or the position of school district superintendent. See, e.g., OAG, 1983-1984, No 6214, p 274 (April 3, 1984); OAG, 1991-1992, No 6695, p 76 (August 21, 1991), and Contesti v Attorney General, 164 Mich App 271, 282; 416 NW2d 410 (1987), lv den 430 Mich 893 (1988). The township clerk is a voting member of the township board. MCL 41.70; MSA 5.62.

Proposal A and its implementing legislation changed the procedure for school funding. One of the statutes implementing Proposal A is 1993 PA 314, which amended section 11(4) of the Property Tax Limitation Act, MCL 211.201 et seq; MSA 7.61 et seq. by eliminating the minimum required allocation by the county tax allocation board to local school districts. 1993 PA 314 also amended section 11(9) of the same statute to provide that "the [county tax allocation] board shall not allocate mills to a local school district for school district operating purposes." Subsequently, 1994 PA 190 amended the definition of "local unit" found in section 2 of the Property Tax Limitation Act to exclude local school districts, except for first-class school districts. ⁽¹⁾

In light of these statutory amendments to the Property Tax Limitation Act, competition for tax dollars before the county tax allocation board is no longer a basis for a finding of incompatibility between the offices of township clerk and member of a board of education of a local school district. ⁽²⁾

The letter opinion to Senator Davis also relied on section 1801 of the Revised School Code, MCL 380.1 et seq; MSA 15.4001 et seq, in support of the conclusion that the offices of township clerk and school board member are incompatible. Section 1801(1) provides:

Subsection (1) of section 1801 establishes liability for the township clerk's failure to make out and transmit the annual reports of the several school districts in the township. The township clerk's duty to accept, transmit and file the annual reports of school districts originated in 1881 PA 164, Chapter IV, sections 3 and 7. Provisions establishing this duty were carried over into every new School Code until the School Code of 1955, 1955 PA 269, which repealed the provision establishing this duty and did not reenact it. Even after the Legislature repealed the provision creating the duty, however, the Legislature continued to carry over the provision establishing liability for the failure to perform this duty, now found at section 1801(1) of the Revised School Code. Obviously, this now nonexistent duty cannot create an incompatibility between the offices of township clerk and school board member.

Section 1801(2) of the Revised School Code provides:

Under section 1213 of the Revised School Code, the secretary of the board of education of a local school district must file a certified copy of the board resolution certifying the taxes to be levied with each city and township clerk. Under section 1801(2) of the Revised School Code, if the township clerk fails to certify the taxes to the proper tax assessing officer, the school district can file suit to recover any loss caused by this failure.

The provisions of section 1213 and 1801(2) of the Revised School Code do not make the positions of township clerk and school board member subordinate to or supervisory of each other. ⁽³⁾ The township clerk is required to transmit the certification by statute, and not by any order of the board of education. The board of education has no control over whether the township clerk performs the ministerial duty of certifying the school district taxes to the proper township tax assessing officer.

Section 1801(2) could create an incompatibility between the offices of township clerk and school board member in only one situation. If the clerk fails to certify the school district's taxes, and the school district becomes able, under section 1801(2) of the Revised School Code, to sue the township clerk to recover any loss, a person holding the offices of township clerk and school board member would obviously have competing interests. At this point, holding both offices would result in a breach of duty, as a person holding both would not be able to protect, advance or promote the interests of both offices simultaneously. OAG, 1979-1980, No 5626, p 537, 543 (January 16, 1980). In this situation, the offices of township clerk and school board member would become incompatible under section 1(b)(iii) of the incompatible public offices act, 1978 PA 566.

Some additional factors not mentioned in the opinion to Senator Davis can create an incompatibility between the positions of township clerk and school board member. Specifically, two positions become incompatible, under section 1(b)(iii) of the incompatible public offices act, 1978 PA 566, when they are placed on opposite sides of a proposed contract. Further, abstention from voting on the proposed contract between the two public bodies does not eliminate the incompatibility since abstention under these circumstances is itself a breach of duty. The public official must vacate one of the two public positions. Contesti v Attorney General, 164 Mich App, at 281; Wayne County Prosecutor v Kinney, 184 Mich App 681, 684-685; 458 NW2d 674 lv den 436 Mich 887 (1990). This office has found the offices of township trustee and township supervisor incompatible with membership on a board of education of a school district when the township and school district negotiate or enter into contracts. OAG, 1983-1984, No 6234, p 334, 335 (July 10, 1984); OAG, 1991-1992, No 6695, p 76, 77 (August 21, 1991).

There are several matters in particular on which townships and school districts might contract. A township and school district can enter into a contract allowing the township clerk to conduct school elections under section 1053 of the Revised School Code. In addition, the township and school district can contract for the collection of summer school district taxes by the township under sections 1612 and 1613 of the Revised School Code. While these are specific matters on which townships and school districts may contract, any contractual negotiation or contract between a township and a school district will create an incompatibility between the offices of township clerk and school board member.

An incompatibility can also arise by virtue of a noncontractual issue coming before one or both of the offices a person holds, if the two public bodies have competing interests on the issue. See, e.g., OAG, 1995-1996, No 6885, p 124 (January 11, 1996); OAG, 1995-1996, No 6903, p 172 (May 28, 1996). If the township board considers a noncontractual matter involving or affecting the school district, or if the board of education considers a noncontractual matter involving or affecting the township, a person holding the offices of township clerk and member of the board of education would have competing interests, and the holding of both offices would result in a breach of duty.

It is my opinion, therefore, that the offices of township clerk and member of a board of education of a local school district are not incompatible unless the township board and the board of education negotiate or enter into a contract, one of the two public bodies acts upon a noncontractual matter affecting the other public body or the township clerk fails to perform the duties imposed by section 1801(2) of the Revised School Code.

Frank J. Kelley

Attorney General