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
JENNIFER M. GRANHOLM, ATTORNEY GENERAL
INCOMPATIBILITY:
Township planning commission member serving on township board of appeals
The incompatible public offices act prohibits more than one member of a township planning commission from simultaneously serving on the same township's zoning board of appeals and reviewing decisions of the planning commission where that commission has been assigned the responsibilities vested in a township zoning board under 1943 PA 184 and 1959 PA 168.
Opinion No. 7012
March 24, 1999
Honorable William Van Regenmorter
State Senator
The Capitol
Lansing, MI
You have asked if the incompatible public offices act prohibits more than one member of a township planning commission from simultaneously serving on the same township's zoning board of appeals.
In the incompatible public offices act (Act), 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq, the Legislature has addressed the simultaneous holding of public positions. 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.
Information supplied with your request indicates that the township in question has adopted a township zoning ordinance under the Township Zoning Act, 1943 PA 184, MCL 125.271 et seq; MSA 5.2963(1) et seq. Section 18 of the Township Zoning Act requires the township board to appoint a township zoning board of appeals. In addition, under section 11 of the township planning act, 1959 PA 168, MCL 125.321 et seq; MSA 5.2963(101) et seq, this township has transferred all powers and duties of the township zoning board created under the Township Zoning Act to the township planning commission. Thus, in the township in question, the planning commission takes the place of the township zoning board and there is also a township zoning board of appeals.
OAG, 1985-1986, No 6268, p 5 (January 24, 1985), concluded that one person may simultaneously occupy the offices of member of a township zoning board of appeals and member of a township planning commission. That opinion relied upon section 11(1) of the township planning act, supra, and section 18(1) of the Township Zoning Act, supra. In townships where the planning commission has been assigned the responsibilities vested in a township zoning board, these statutory provisions require that the first member of the township zoning board of appeals shall be a member of the township planning commission. Thus, the Legislature has expressly required this dual office holding by one member of the township zoning board of appeals. "The Legislature may, of course, expressly authorize the simultaneous holding of two public offices that would otherwise be incompatible." OAG, 1995-1996, No 6837, p 19 (February 23, 1995).
Your question involves a township in which the planning commission has been assigned the responsibilities vested in a township zoning board of appeals. In this township, however, several persons are simultaneously holding both offices.
Recently, in Macomb County Prosecutor v Murphy, Mich App ; NW2d , 1999 WL 13212 (Mich App) (January 12, 1999), the Michigan Court of Appeals addressed the question of what constitutes a breach of duty under the Act. That case involved a township trustee who also served as the county delinquent personal property tax coordinator. By way of background, a township may collect its own delinquent personal property taxes or it may, through its township board, enter into an agreement with the county to collect the township's delinquent personal property taxes. At issue was the vote of the township trustee, as a member of the township board, that the township continue to collect its own delinquent personal property taxes. The township trustee in question was also the county tax coordinator. The court concluded that this vote, on an issue that necessarily implicated the other public office simultaneously held by the township trustee, resulted in a breach of duty in violation of the Act. Slip Opinion at pp 1, 2 and 5.
In reaching its conclusion, the court in Macomb County Prosecutor, supra, analyzed the Act as follows:
Under the common law, public offices were incompatible when the nature of the positions created the potential for a breach of duty. Following the enactment of the incompatible offices act, an incompatibility now arises only when a breach of duty actually results from the performance of the duties of the public offices. Abstaining from any official actions in an attempt to avoid the incompatibility does not remedy a breach of duty, vacating one of the offices is the only solution to the problem.
In evaluating whether a breach of duty exists under the incompatible public offices act, the salient question is not whether the public official will in fact be affected, but whether there exists the possibility that her actions in one office will be influenced by the other position that she holds. To require a definitive showing that the public official's actions in one office have been or will be swayed, to some discernible extent, by considerations of her other office would result in a lengthy inquiry in which the results would inevitably turn on speculation and conjecture, as few public officials would be likely to admit that they were compromising their representation of one constituency to promote the interests of another.
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Slip Opinion at pp 3, 4 and 5. (Citations omitted; footnote omitted.)
Applying this test, the issue becomes whether there is a "possibility" that a planning commission member's actions will be affected by her position on the zoning board of appeals. A township zoning board of appeals is empowered to "hear and decide appeals" from decisions made by a township planning commission that has been assigned the responsibilities vested in a township zoning board under 1943 PA 184 and 1959 PA 168. See, section 20 of 1943 PA 184 and Hecht v Niles Twp, 173 Mich App 453, 456; 434 NW2d 156 (1988). Moreover, information supplied with your request indicates the zoning ordinance of the township in question vests the:
Zoning Board of Appeals with the jurisdiction and power to "hear and decide appeals from and review any order, requirement, decision or determination made by" the Planning Commission, excluding decisions regarding the authorization of special uses and planned unit developments. . . . [and] empowers the Planning Commission to render decisions regarding site plans, which are not specifically excluded from review by the Zoning Board of Appeals.
In addition, the doctrine of exhaustion of administrative remedies requires that certain zoning and land use decisions must be reviewed by the zoning board of appeals before they are ripe for judicial review. Compton Sand and Gravel v Dryden Twp, 125 Mich App 383, 396-397; 336 NW2d 810 (1983); See also, Paragon Properties Co v Novi, 452 Mich 568, 580-583; 550 NW2d 772 (1996).
The township zoning board of appeals, in effect, reviews certain decisions of the township planning commission. Conversely, decisions rendered by the township planning commission are subordinate to decisions issued by the township zoning board of appeals. Stated another way, the township zoning board of appeals passes upon and may reverse decisions of the township planning commission. The township zoning board of appeals' power to review decisions of the township planning commission necessarily results in the possibility that actions in one office will be influenced by holding the other office, Macomb County Prosecutor v Murphy, supra, at p 5. Since a board of zoning appeals member who also sits on the planning commission would review her own decisions made as a planning commission member, there is a logical possibility that in her reviewing function, she would be influenced by her own opinion rendered in the lower tribunal. Therefore, the offices in question are involved in a subordinate/superior relationship, which results in a violation of the Act.
While the offices in your question are incompatible, it must next be determined whether an exception permits the simultaneous holding of these two public offices. Section 3(4) of the Act provides in part:
Section 2 does not do any of the following:
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(c) Limit the authority of the governing body of a city, village, township, or county having a population of less than 25,000 to authorize a public officer or public employee to perform, with or without compensation, other additional services for the unit of local government.
While this office has been advised that the township in your question has a population less than 25,000, this exception is preempted by section 3(7) of the Act which provides that:
This section does not allow or sanction specific actions taken in the course of performance of duties as a public official or as a member of a governing body of an institution of higher education that would result in a breach of duty as a public officer or board member.