STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6927

December 16, 1996

INCOMPATIBILITY:

The offices of city commissioner and county commissioner

In certain circumstances, the offices of city commissioner and county commissioner will be incompatible because of contracts that the city and county entered into before the city commissioner's election to the county board of commissioners.

Honorable Joel Gougeon

State Senator

The Capitol

Lansing, Michigan 48913

You have asked if the offices of city commissioner and county commissioner are incompatible when the city and county have entered into contracts before the city commissioner's election to the county board of commissioners.

Section 2 of the incompatible public offices act, 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, states, in pertinent part, 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:

A public official cannot avoid an incompatibility by merely abstaining from any official actions. Abstention in those circumstances is itself a breach of duty. Rather, the official must vacate one of the incompatible offices. 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, 281; 416 NW2d 410 (1987), lv den 430 Mich 893 (1988).

The positions of city commissioner and county commissioner are neither supervisory nor subordinate to one another, and so are not incompatible under section 1(b)(i) or (ii) of the incompatible public offices act. OAG, 1985-1986, No 6355, p 262 (April 18, 1986). Thus, these positions will be incompatible only if holding both results in a breach of duty, as set forth in section 1(b)(iii) of the act. A breach of duty results when a person cannot protect, advance and promote the interests of both offices simultaneously. OAG, 1995-1996, No 6913, p __ (August 19, 1996); OAG, 1979-1980, No 5626, p 537, 543 (January 16, 1980).

A breach of duty can result in any number of situations. Your question, however, concerns only incompatibilities arising out of a contractual relationship between a city and county. It is well established that a breach of duty results and two offices become incompatible under section 1(b)(iii) when a person is placed on opposite sides of a contract between two public bodies. Wayne County Prosecutor v Kinney, 184 Mich App at 684; Contesti v Attorney General, 164 Mich App at 280-281. Thus, OAG, 1985-1986, No 6355, supra, concluded that the offices of city councilperson and county commissioner are incompatible when the city and county contract with one another.

Under the common law, the mere authority of two entities to contract with one another created an incompatibility of public office. Contesti v Attorney General, 164 Mich App at 280; OAG, 1967-1968, No 4658, p 317, 319-320 (October 31, 1968). Under the incompatible public offices act, however, an incompatibility exists only when a breach of duty actually results from the performance of the duties of one or both of the public offices. Contesti v Attorney General, 164 Mich App at 280; OAG, 1979-1980, No 5626 at 542. Thus, an incompatibility results by virtue of the power to contract only when two public bodies actually negotiate or enter into a contract.

The rule that a contract between two public bodies creates an incompatibility is most often applied to situations in which a person is serving two public bodies at the time that those bodies negotiate or enter into the contract. Nonetheless, a contract that already exists before a person serves on both bodies simultaneously can also create an incompatibility if the contract is one that is certain to require some action or decision by one or both public bodies during the time that person holds both public offices.

This is precisely the situation considered in Wayne County Prosecutor v Kinney, 184 Mich App 681, supra. In that case, the defendant served simultaneously as a city council member and as a paid volunteer fire fighter for the city fire department. The city council had ratified a collective bargaining agreement with the fire fighters' union prior to the time that the defendant was elected to the city council. Id., at 682. The contract was due to expire, however, during defendant's term on the council, and the city council was vested with the final vote on the future collective bargaining agreement. Id., at 682-684. The Court of Appeals noted that "[w]ere defendant, in his role as council member, to vote on ratification of the fire fighters' 1990 collective bargaining agreement, he would be voting on a contract which directly affects the terms of his employment, including his wages, as a fire fighter." Id., at 685. The Court also noted that the defendant could not abstain from voting on the contract, since abstention itself would result in a breach of duty. Id. Since the city council was certain to consider a collective bargaining agreement with the fire fighters during the defendant's term on the council, the Court of Appeals found that the two positions were incompatible and that the public officeholder must vacate one of them. Id.

Under the incompatible public offices act, as interpreted in Wayne County Prosecutor v Kinney, supra, the incompatibility rules concerning contracts between two public bodies, when a member of one public body wishes to run for a position on the other public body, may be summarized as follows:

It is my opinion, therefore, that, in certain circumstances, the offices of city commissioner and county commissioner will be incompatible because of contracts that the city and county entered into before the city commissioner's election to the county board of commissioners.

Frank J. Kelley

Attorney General