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



INCOMPATIBILITY:

City council member and county drain commissioner


The offices of city council member and county drain commissioner will be incompatible and cannot be held simultaneously if the drain commissioner and the city council have any interaction under the provisions of the Drain Code of 1956.


Opinion No. 6931

February 3, 1997


Honorable David Anthony
State Representative
The Capitol
Lansing, Michigan 48933

You have asked if a member of a city council can simultaneously hold the office of county drain commissioner.

The Legislature has addressed dual office holding in the incompatible public offices act, 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq. 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.


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." A person holding incompatible offices cannot abstain from any official actions in an attempt to avoid the incompatibility; rather, the person must vacate one of the offices. Wayne County Prosecutor v Kinney, 184 Mich App 681, 684; 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).

In order to determine whether the positions of city council member and drain commissioner are incompatible, it is necessary to examine the relationship of the offices to one another.

The duties of the county drain commissioner are established by the Drain Code of 1956 (Drain Code), 1956 PA 40, MCL 280.1 et seq; MSA 11.1001 et seq. The drain commissioner is an elected official with jurisdiction over all drains within the county. Drain Code, sections 10, 21(1) and 23. The drain commissioner's responsibilities often require him or her to act on matters affecting cities and other public corporations.

For example, cities, with the approval of the city council, can petition for the creation of a drainage district or a specific drain, for maintenance, repair and improvement of an existing drain, for the placement of a dam in a drain, for the abandonment of a drain, for the consolidation of a drain, or for the creation of a water management district. Drain Code, sections 51, 71, 121, 191, 192, 352, 391, 441, 441a, 463, 513, and 552. In many instances, the drain commissioner, either alone or as a member of a drainage board or water management commission, approves or denies a petition after considering the necessity, practicability and conduciveness to the public welfare of the proposed project. Drain Code, sections 52, 54, 122, 192, 352, 353, 356, 391, 441(3), 441a(3), 467, 519, and 557. Even when the commissioner does not approve or deny a petition, he or she decides matters such as the commencement, route, terminus, and type of construction of the drain. Drain Code, section 72(3) and 73. In addition, the drain commissioner, either alone or as a member of a drainage board or water management commission, apportions and assesses the costs for the project among the public corporations benefiting from it. Drain Code, sections 105, 122, 151, 191-193, 196, 243, 261, 276, 277, 280, 424, 467-469, 477, 520, 521, 529, 561, 563 and 625-630.

A drainage board is required to contract with any public corporation that has been assessed costs related to a drain for the return and use of surplus funds not needed for the inspection, repair and maintenance of the drain. Drain Code, sections 283(2), 497(2), 547(2). In addition, the commissioner, either alone or as a member of a drainage board, may contract with public corporations on other matters regarding the costs, construction, operation, maintenance, use or services of drains. Drain Code, sections 200, 281, 431, 434, 471, 479, 523, 531. Drainage districts also have the power to contract with municipal corporations under the statute governing intergovernmental contracts between municipal corporations, 1951 PA 35, MCL 124.1 et seq; MSA 5.4081 et seq.

As noted above, public offices are incompatible under section 1(b)(iii) of the incompatible public offices act when holding both results in a breach of duty. Under the common law, public offices were incompatible when the nature of the positions created the potential for a breach of duty. The incompatible offices act changed the common law, so that an incompatibility arises under section 1(b)(iii) only when a breach of duty actually results from performance of the duties of public office. Contesti, 164 Mich App at 280; OAG, 1979-1980, No 5626, pp 537, 542 (January 16, 1980).

A breach of duty arises when a public official holding dual offices cannot protect, advance, or promote the interest of both offices simultaneously. OAG 1987-1988, No 6418, pp 15, 17 (January 13, 1987); OAG 1979-1980, No 5626, at 543. A public office is a public trust, and the courts have imposed a fiduciary standard upon public officials that requires 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,  201, pp 656-657. Thus, if anything arises that prevents a county drain commissioner who is also a city council member from serving either of those offices with undivided loyalty, a breach of duty has occurred and the offices are incompatible.

It is well established that a breach of duty creating an incompatibility results when a person holding dual public offices is placed on opposite sides of a contract. Kinney, 184 Mich App at 684; Contesti, 164 Mich App at 280-281. An incompatibility can also result out of a non-contractual matter, such as when one office has to pass upon a matter affecting the other office. For example, OAG, 1995-1996, No 6841, p 27 (March 30, 1995), concluded that the offices of township building inspector and member of a local board of education are incompatible when a question concerning the board of education comes before the building inspector.

It is quite possible that the drain commissioner might have to pass upon a matter involving the city for which he is a council member. For example, the drain commissioner might have to pass upon the city council's application for the creation of a drainage district, a drain, or a water management district, or for the maintenance, extension or repair of a drain or the placement of a dam in a drain. The drain commissioner might have to apportion and assess costs related to a drain against the city. In addition, the drain commissioner and the city council might be parties to a contract relating to a drain. The mere possibility that any of these situations will arise is insufficient to render the positions incompatible. If any of these situations arise, however, the positions of drain commissioner and city council member will become incompatible, since a person serving both as a city council member and as drain commissioner will have competing interests and will not be able to fully protect, advance, and promote the interests of both offices simultaneously.

This result is consistent with the conclusion in Letter Opinion of the Attorney General to Senator John T. Bowman, dated November 16, 1966. That opinion concluded that the offices of drain commissioner and member of the board of trustees of a community college district located in the same county were incompatible, under the common law standard of incompatibility, because of the possibility that the community college district might petition for the creation of a drainage district, or that the drain commissioner might have to apportion and assess costs against municipalities within community college district. The opinion concluded that the drain commissioner could be influenced by the interests of the community college district, so that "the impartiality of his discretion would be tested." Again, while the mere possibility of such a conflict is no longer sufficient to render two positions incompatible, the actual occurrence of these matters will create an incompatibility.

Moreover, if an issue concerning a drain or drainage district that affects the city is certain to come before either the city council or the drain commissioner during the time that this person serves in both positions, the offices will be considered incompatible even before the issue actually arises. For example, an already existing, operative contract between the two offices will create an incompatibility if a matter concerning the contract, such as renegotiation or renewal, is certain to come before the city council or drain commissioner while this person serves in both positions. See, OAG, 1995-1996, No 6927, p __ (December 16, 1996). Similarly, if the city council has an application pending before the drain commissioner, drainage board or water management board at the time that this person assumes the office of drain commissioner, or if a matter concerning the apportionment and assessment of costs against the city is pending before the drain commissioner, drainage board, or water management board at the time that this person assumes the offices of drain commissioner, the offices will be incompatible.

Finally, section 381 of the Drain Code provides for the disqualification of the county drain commissioner when the commissioner, or the commissioner's spouse or child, owns land that would be liable for an assessment for work proposed by a petition, or in any other situation "where such commissioner may be otherwise disqualified to act in the making of apportionment of benefits." In those circumstances, the probate court can appoint a disinterested, special commissioner to apportion the benefits on that particular drain. Drain Code, section 382.

As noted in the Letter Opinion to Senator Bowman, section 381 only disqualifies the drain commissioner from apportioning benefits on a particular drain and is not broad enough to disqualify the commissioner from determining the practicability of a proposed project or taking other actions relating to drains. For this reason, the Letter Opinion to Senator Bowman concluded that section 381 does not allow a drain commissioner holding another office to simply disqualify him- or herself when an incompatibility arises. Moreover, as noted above, a person holding two incompatible offices cannot simply abstain from any actions on which there is a conflict between the two positions, but must vacate one of those offices, even though mere abstention might suffice in a standard conflict of interest situation. Contesti, 164 Mich App at 281; 63A Am Jur 2d, Public Officers and Employees,  79, p 728.

It is my opinion, therefore, that the offices of city council member and county drain commissioner will be incompatible and cannot be held simultaneously if the drain commissioner and the city council have any interaction under the provisions of the Drain Code of 1956.

FRANK J. KELLEY
Attorney General