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:



Township supervisor and township assessor in different townships

Township supervisor and school district superintendent

Township assessor and school district superintendent

The incompatible public offices act, 1978 PA 566, does not prohibit a person from simultaneously serving as a township supervisor in one township and a township assessor in another township, unless a matter arises that prevents this person from protecting, advancing and promoting the interests of either position.

The incompatible public offices act does not prohibit a person from simultaneously serving as a township supervisor and school district superintendent, unless a matter arises that prevents this person from protecting, advancing or promoting the interests of either position.

The incompatible public offices act does not prohibit a person from simultaneously serving as a school district superintendent and a township assessor, unless a matter arises that prevents this person from protecting, advancing and promoting the interests of either position.


Opinion No. 6967

January 27, 1998


Honorable Michael E. Nye
State Representative
The Capitol
Lansing, Michigan 48909


You have asked whether the incompatible public offices act, 1978 PA 566, prohibits a person from simultaneously serving as a township supervisor in one township, a township assessor in another township, and the superintendent of a public school district, all within the same county.

In order to address your request, it is necessary to consider three separate questions:

1. Whether a person can simultaneously serve as township supervisor in one township and township assessor in another township.

2. Whether a person can simultaneously serve as township supervisor and school district superintendent.

3. Whether a person can simultaneously serve as township assessor and school district superintendent.

In the incompatible public offices act, 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq (the Act), the Legislature has addressed the simultaneous holding of multiple public offices. Section 2 of the Act generally prohibits public officers and employees from holding two or more incompatible offices simultaneously. Section 1(b) of the 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.

Research discloses no basis upon which any of the three public positions at issue could said to be supervisory or subordinate to one another. Thus, a prohibited incompatibility will result only if the performance of the duties of any of the three offices results in a breach of duty of public office.

A breach of duty results when a person holding multiple positions cannot protect, advance or promote the interest of all offices simultaneously. OAG, 1997-1998, No 6931, p 5 (February 3, 1997); OAG, 1995-1996, No 6903, p 172 (May 28, 1996). For example, a breach of duty results when two public bodies contract with one another, so that a person serving both bodies is placed on both sides of a contract. 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); OAG, 1995-1996, No 6903, supra. In addition, noncontractual matters can result in a breach of duty, when a person's interests in, or duties to, one entity could affect his or her action on behalf of the other entity. See, e.g., Contesti v Attorney General, supra, 164 Mich App at 282 (competition for tax dollars by both entities before the county tax allocation board); OAG, 1997-1998, No 6931, supra (drain commissioner passing upon a city council's application for drainage district); OAG, 1995-1996, No 6903, supra (one body voting on funding for another).

When a matter arises that results in a breach of duty, a public officer or employee cannot abstain from voting or taking other official action in an attempt to avoid the incompatibility; only vacation of one of the incompatible offices will remedy the situation. Wayne County Prosecutor v Kinney, 184 Mich App at 684; Contesti v Attorney General, 164 Mich App at 281; OAG, 1979-1980, No 5626, p 537, 545 (January 16, 1980).

Your first question asks whether the incompatible public offices act prohibits a person from simultaneously serving as a township supervisor in one township and a township assessor in another township.

According to background information provided by your office, both of the townships in question are general law townships. Thus, the statute governing general law townships, MCL 41.1(a) et seq; MSA 5.1(1) et seq, applies. Under section 70 of this statute, the township supervisor is a member of the township board. Under section 2(3), the township supervisor is the agent for the township for the transaction of all legal business. Under section 61, the township supervisor is the chief assessor of the township and the secretary of the township board of review. Under section 61, township boards can appoint additional assessors; these appointed assessors are subordinate to the township supervisor. Such appointed assessors are considered employees of the township. OAG, 1983-1984, No 6126, p 41 (February 15, 1983). Thus, the individual in your question is a member of the township board in one township, and an employee of the other township.

I am unaware of anything inherent in these positions that would create a breach of duty prohibiting a person from protecting, advancing or promoting the interests of both positions simultaneously. Presumably, a township assessor will not have any duties or responsibilities regarding the official actions of the township, other than his or her assessment duties. For example, even if the two townships were to contract with one another, it is unlikely that this person would be placed in a position in which he or she occupies opposite sides of the contract. Generally, a person is not considered to be on opposite sides of a contract if his or her duties in one position do not include any involvement in the contracting process. See, e.g., OAG, 1993-1994, No 6791, p 121 (March 11, 1994). The exception to this rule is when the contract will directly affect the person's employment. Wayne County Prosecutor v Kinney, 184 Mich App at 684-685; OAG, 1995-1996, No 6903, supra; OAG, 1993-1994, No 6795, p 132 (May 5, 1994); OAG, 1993-1994, No 6794, p 129 (April 12, 1994). While this person is a member of the township board as township supervisor and, thus, would occupy one side of any contract entered into by that township, he remains merely an employee of the other township, and his employment as assessor presumably does not extend to negotiating or approving contracts on behalf of that other township. Thus, unless the townships contract on a matter that will directly affect this person's employment as an assessor, no prohibited incompatibility will result by virtue of a contract between the townships.

Furthermore, it is difficult to identify any noncontractual matter that might arise between two townships that would create a breach of duty for a person who is a supervisor in one township and a subordinate assessor in another. Nonetheless, if a matter should arise that places this person in a situation in which the interests of both his positions conflict, a prohibited incompatibility would result.

It is my opinion, therefore, in answer to your first question, that the incompatible public offices act does not prohibit a person from simultaneously serving as a township supervisor in one township and a township assessor in another township, unless a matter arises that prevents this person from protecting, advancing and promoting the interests of either position.

Your second question asks whether the incompatible public offices act prohibits a person from simultaneously serving as a township supervisor and a school district superintendent.

A school district superintendent is employed by the board of education of a school district under section 1229 of the Revised School Code, MCL 380.1229; MSA 15.41229. The Revised School Code does not set forth any particular duties of the superintendent; presumably, each board of education establishes the powers and duties of its superintendent. Thus, whether a prohibited incompatibility will result by virtue of any given situation will necessarily depend upon the powers and duties of the superintendent.

The Michigan Court of Appeals has found the position of school district superintendent incompatible with the position of township board member when the township and school district competed for tax dollars before the county tax allocation board. Contesti v Attorney General, 164 Mich App at 282. See also, OAG, 1983-1984, No 6214, p 274 (April 3, 1984); 2 OAG, 1959-1960, No 3504, p 105 (August 2, 1960). Nonetheless, by virtue of recent changes to the Michigan Constitution and state statutes governing funding for public schools, most local school districts1 no longer compete for tax dollars before a county tax allocation board. OAG, 1995-1996, No 6918, p 211 (October 2, 1996). Thus, except in limited circumstances not implicated by your question, competition for tax dollars is no longer a basis for a finding of incompatibility between the offices of school district superintendent and township supervisor.

Other factors might still create an incompatibility between the offices of school district superintendent and township supervisor. As noted above, when public officers and employees are placed on opposite sides of a contract, a breach of duty results. Contesti v Attorney General, 164 Mich App at 281. In Contesti, the Court of Appeals also found the positions of school district superintendent and township board member incompatible because of a contract between the school district and the township regarding the collection of taxes. While the school superintendent in Contesti did not have power to approve the contract on behalf of the school district, he did directly supervise the school district's negotiator and made recommendations to the school board concerning the contract. Contesti v Attorney General, 164 Mich App at 276.

Even if the school superintendent has no duties related to the contracting process, a contract between the township and the school district can result in an incompatibility. In OAG, 1995-1996, No 6903, supra, it was concluded that a contract between a county and a township that directly affected the township police department created an incompatibility between the offices of county commissioner and township police chief, despite the fact that the police chief had no involvement in the contracting process. This situation presented by your question is analogous. Even though the school superintendent is an employee, rather than an officer, of the school district, he or she certainly has great interest in contracts affecting the school district. Thus, if the township and the school district contract with one another, the positions of school district superintendent and township supervisor will be incompatible.

A school district and a township will have contacts and ongoing relationships that are not matters of formal contract. Many school districts, for example, have processes in place whereby local officials and school administrators regularly confer about school bus routes, the location of school bus stops, enforcement of controlled substance laws on or near school property, police presence at school events, the closing of streets for events such as school parades, and other matters of mutual concern. Similarly, townships frequently have regular contact with schools about issues such as the construction, maintenance, and use of bike paths, sidewalks, or other traffic control matters that may impact student safety. These ongoing relationships are generally amicable and create no conflict. If, however, an issue should arise that causes a conflict between the two entities thereby requiring the superintendent/supervisor to take action, either as township supervisor or school superintendent, an incompatibility will result as a matter of law.

It is my opinion, therefore, in answer to your second question, that the incompatible public offices act does not prohibit a person from simultaneously serving as a township supervisor and school district superintendent, unless a matter arises that prevents this person from protecting, advancing or promoting the interests of either position.

Your third question asks whether the incompatible public offices act prohibits a person from simultaneously serving as a school district superintendent and a township assessor.

Research discloses nothing that would be likely to create an incompatibility between these two positions. Even if the school district and township contracted with one another, it is improbable that the township assessor would be negotiating or otherwise acting on behalf of the township in contracting with the school district. It is similarly unlikely that a school district and a township would contract with one another on a matter directly affecting the township assessor. I am unable to identify any other matter that would prevent a person simultaneously holding these positions from protecting, advancing and promoting the interests of both positions.

It is my opinion, therefore, in answer to your third question, that the incompatible public offices act does not prohibit a person from simultaneously serving as a school district superintendent and a township assessor, unless a matter arises that prevents this person from protecting, advancing and promoting the interests of either position.


FRANK J. KELLEY
Attorney General

1 Only intermediate school districts and school districts of the first class still compete for tax dollars. OAG, 1995-1996, No 6918, at 212. Information supplied by your office indicates that the school district in question is neither an intermediate school district nor a school district of the first class.