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



ATTORNEYS:

INCOMPATIBILITY:

City attorney serving as attorney for regional sewer authority

City commissioner and city manager serving on regional sewer authority board of trustees


The incompatible public offices act does not prohibit a city commissioner and a city manager of a city participating as a member of a regional sewer authority from simultaneously serving as a member of the sewer authority's board of trustees.

The incompatible public offices act does not prohibit a city attorney for a city participating as a member of a regional sewer authority from simultaneously serving as an attorney for the sewer authority.


Opinion No. 6959

October 17, 1997


Honorable Paul Tesanovich
State Representative
The Capitol
Lansing, Michigan 48909


You have asked two questions regarding incompatibility of public offices. Your first question asks whether the incompatible public offices act, 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, prohibits a city commissioner and a city manager of a city participating as a member of a regional sewer authority from simultaneously serving as a member on the sewer authority's board of trustees.

Under section 2 of 1955 PA 233, MCL 124.281 et seq; MSA 5.2769(51) et seq, any two or more municipalities may incorporate an authority for the purpose of acquiring, owning, improving, enlarging, extending and operating a sewage disposal system. According to the articles of incorporation of the West Iron County Sewer Authority, the Cities of Caspian, Gaastra, Stambaugh and Iron River created the sewer authority pursuant to 1955 PA 233. The governing body of the sewer authority is a board of trustees, which is made up of two representatives from each constituent municipality, appointed by the respective legislative body of each constituent municipality.

Generally, the propriety of dual officeholding is determined by application of the incompatible public offices act, supra. In this instance, however, we must first look to Const 1963, art 7, 28, governing contracts for the joint administration of municipal services, and which provides as follows:

The legislature by general law shall authorize two or more counties, townships, cities, villages or districts, or any combination thereof among other things to: enter into contractual undertakings or agreements with one another or with the state or with any combination thereof for the joint administration of any of the functions or powers which each would have the power to perform separately; share the costs and responsibilities of functions and services with one another or with the state or with any combination thereof which each would have the power to perform separately; transfer functions or responsibilities to one another or any combination thereof upon the consent of each unit involved; cooperate with one another and with state government; lend their credit to one another or any combination thereof as provided by law in connection with any authorized publicly owned undertaking.

Any other provision of this constitution notwithstanding, an 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.

(emphasis added).

The Legislature implemented Const 1963, art 7,  28, by enacting several statutes. In addition to having authority to enter into a contract for the joint administration of a sewer authority under 1955 PA 233, supra, municipalities can enter into such agreements under the Urban Cooperation Act of 1967, 1967 (Ex Sess) PA 7, MCL 124.501 et seq; MSA 5.4088(1) et seq, and under the statute governing intergovernmental transfers of functions and responsibilities, 1967 (Ex Sess) PA 8, MCL 124.531 et seq; MSA 5.4087(1) et seq. Section 5 of 1967 (Ex Sess) PA 8 mirrors Const 1963, art 7, 28, providing that public officers or employees may serve on or with intergovernmental joint boards or commissions without having to relinquish their offices or employments.

Under Const 1963, art 7, 28, when two or more municipalities create another public body for the joint administration of municipal functions or powers, public officials and employees, other than legislators, may serve on that body without having to relinquish their other offices or employments. See, e.g., OAG, 1987-1988, No 6440, p 96 (June 2, 1987); OAG, 1983-1984, No 6260, p 423 (December 5, 1984). Since this dual service is expressly allowed by the Constitution, it is not prohibited under general notions of incompatibility. OAG, 1987-1988, No 6440, at p 99. Thus, either a city commissioner or a city manager of a city participating as a member of a regional sewer authority could serve on the sewer authority's board of trustees without violating the incompatible public offices act.

It is my opinion, therefore, in answer to your first question, that the incompatible public offices act does not prohibit a city commissioner and a city manager of a city participating as a member of a regional sewer authority from simultaneously serving as a member on the sewer authority's board of trustees.

Your next question asks if the incompatible public offices act prohibits a city attorney for a city participating as a member of a regional sewer authority from simultaneously serving as an attorney for the sewer authority. Const 1963, art 7, 28, states that public officers and employees "may serve on or with any governmental body established for the purposes set forth in this section." (Emphasis added.) Given the use of the term "on or with," it is reasonable to read this provision to allow service in a position that is not actually on an inter-governmental body, but that is ancillary to that body.

Municipal attorneys are typically treated as public officers or employees for purposes of addressing questions regarding the compatibility of public offices. OAG, 1991-1992, No 6717, p 139 (April 7, 1992); OAG, 1993-1994, No 6791, p 121 (March 11, 1994). This is so even when the municipality does not appoint or employ an individual attorney, but simply contracts with a law firm to perform work for the municipality. OAG, 1991-1992, No 6717, at 140.

This office has previously interpreted Const 1963, art 7,  28, to allow service in a position that was with, but not necessarily on, an intergovernmental body. OAG, 1987-1988, No 6440, supra, concluded that Const 1963, art 7,  28, allows an elected public official to serve as the secretary-treasurer of a port authority created by a city and county. The position of secretary-treasurer, by statute, did not have to be held by a member of the port authority board. OAG, 1987-1988, No 6440 at 98-99. Thus, the secretary-treasurer did not necessarily serve on the port authority but certainly served with the port authority.

This conclusion is reinforced by a review of the purpose sought to be accomplished by Const 1963, art 7,  28. The Address to the People, through which the drafters of the 1963 Constitution explained the meaning of each provision, explained the purpose behind art 7, 28, as follows:

This is a new section designed to encourage the solution of metropolitan problems through existing units of government rather than by creating a fourth layer of local government. Local governments are allowed to join in a variety of ways to work out together the solutions to their joint problems.

***


Because this work is to be carried on by local governments, officials (except members of the legislature) are allowed to serve on the boards. The last sentence provides that such service is not in conflict with other provisions of this constitution.

2 Official Record, Constitutional Convention 1961, p. 3394.

The following excerpts from the Constitutional Convention debates shed further light on the purpose behind Const 1963, art 7, 28:

Now, at the bottom of the page you may wonder why we have all this verbiage about allowing an officer to serve on any intergovernmental or governmental bodies established for these purposes. The reason for this is that when you get governmental units together, you usually come up with something like, for example, a planning board, and it is very advantageous to have on this planning board a supervisor or the chairman of the board of supervisors or a city mayor or, if the state is involved in some way, someone from the state. It has been found in other states that the prohibition against holding more than 2 offices would prevent it. . . . [W]e have tried to clear the matter up in this latter language.

1 Official Record, Constitutional Convention 1961, p 1061.

And the purpose of it is, as you can well see, to give the talent of the various administrative officers or elected officials that are needed to an organization or a unit which is going to combine many different units of government.

1 Official Record, Constitutional Convention 1961, p 1081.

Thus, the purpose behind this provision is to allow local governments to cooperate in the administration of their various functions. In order to further this goal, persons experienced in public service are allowed to serve intergovernmental bodies, so that the intergovernmental entity may benefit from the talents and perspectives of such public servants. This purpose is furthered not only by allowing public officers and employees to serve on intergovernmental boards but also by allowing public officers and employees to serve in ancillary positions to such boards. It must be concluded that Const 1963, art 7, 28, allows a city attorney for a city participating as a member of a regional sewer authority to simultaneously serve as attorney for the sewer authority without violating the incompatible public offices act.1

It is my opinion, therefore, in answer to your second question, that the incompatible public offices act does not prohibit a city attorney for a city participating as a member of a regional sewer authority from simultaneously serving as an attorney for the sewer authority.

FRANK J. KELLEY
Attorney General

1 In determining whether an attorney for one unit of government can simul-taneously act as an attorney for another unit of government, one must also consider the Michigan Rules of Professional Conduct (MRPC), which were adopted by the Michigan Supreme Court under its exclusive constitutional authority to regulate the practice of law within this state. See, Const 1963, art 6,  5; MCL 600.904; MSA 27A.904.