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)




INCOMPATIBILITY:

LEGISLATURE:

SCHOOLS:

Legislative aide also serving as school board member



The incompatible public offices act does not prohibit a state legislator's full-time aide from simultaneously serving as an elected member of a local school board located within the legislator's district.


Opinion No. 7013

March 24, 1999


Honorable Michael Switalski
State Representative
The Capitol
Lansing, MI


You have asked whether the incompatible public offices act prohibits a state legislator's full-time aide from simultaneously serving as an elected member of a local school board located within the legislator's district.

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 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 public 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.

The Attorney General has concluded that a subordinate and supervisory relationship results where: (1) one office sets and approves the compensation of another office, OAG, 1991-1992, No 6713, p 132 (February 24, 1992); (2) where one office has the power of appointment or removal over another office, OAG, 1995-1996, No 6834, p 9, 10 (February 3, 1995); or (3) where one office reviews the accounts of the other public office. OAG, 1991-1992, No 6713, supra.

A breach of duty results: (1) where two offices compete for tax dollars, Contesti v Attorney General, 164 Mich App 271, 282; 416 NW2d 410 (1987), lv den 430 Mich 893 (1988); (2) where two offices are on opposite sides of a contract; or (3) where one office passes upon a matter affecting the other public office, Macomb County Prosecutor v Murphy, __ Mich App __; __ NW2d __, 1999 WL 13212 (Mich. App.) (January 12, 1999), slip opinion at 4.

A member of a local school board is a "public officer" under the Act. Section 1(e)(iii). Similarly, a legislative aide to a state legislator is a "public employee" under the Act. Section 1(d). Accordingly, both positions are subject to the incompatible public offices act. The duties and responsibilities of each public office must, therefore, be examined to determine whether there is a prohibited incompatibility.

The duties and responsibilities of a local school board are prescribed in the Revised School Code (School Code), 1976 PA 451, MCL 380.1 et seq; MSA 15.4001 et seq. The school board referenced in your question is the governing body of a local school district. Sections 3(3); 11a(5). The school board has the responsibility to educate students, provide a safe environment for students, acquire property for the school district, and receive funding for the school district. Section 11a(3)(a)-(e).

The duties and responsibilities of an aide employed by a state legislator are not prescribed by statute. The legislative power of the state is vested in the Michigan House of Representatives and in the Michigan Senate. Const 1963, art 4, 1. Further, "[n]o bill shall become a law without the concurrence of a majority of the members elected to and serving in each house." Const 1963, art 4, 26. Rule 31(a) of the Standing Rules of the House of Representatives prohibits persons other than members of the House of Representatives from voting. 1999 Journal of the House 22 (No. 1, January 13, 1999). A legislative aide does not have any authority to review, supervise, or pass upon matters affecting a local school board. Similarly, a legislative aide does not have any authority to negotiate or enter into contracts between the state and the local school board.

It is my opinion, therefore, that the incompatible public offices act does not prohibit a state legislator's full-time aide from simultaneously serving as an elected member of a local school board located within the legislator's district.



JENNIFER M. GRANHOLM
Attorney General