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
NATURAL RESOURCES, DEPARTMENT OF:
PUBLIC OFFICES AND OFFICERS:
Michigan State Waterways Commission member serving on township planning commission
The incompatible public offices act does not prohibit a member of the Michigan State Waterways Commission from simultaneously serving as a member of a township planning commission which reviews proposed site plans submitted by the Michigan Department of Natural Resources.
Opinion No. 7033
September 16, 1999
Mr. Carl J. Marlinga
Macomb County Prosecutor
40 N. Main Street, Sixth Floor
Mt. Clemens, MI 48043
You have asked whether the incompatible public offices act prohibits a member of the Michigan State Waterways Commission from simultaneously serving as a member of a township planning commission which reviews proposed site plans submitted by the Michigan Department of Natural Resources.
In the incompatible public offices 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 generally prohibits public officers and employees from holding two or more incompatible offices simultaneously. Section 1(b) 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.
An examination of the powers and duties of the two public offices in question begins with the Michigan State Waterways Commission (Commission), originally created by the Legislature in 1947 PA 320 and now recodified in Subchapter 4, Part 781 of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, MCL 324.101 et seq; MSA 13A.101 et seq. The Commission is composed of seven members appointed by the Governor, with the advice and consent of the Senate, for terms of three years. Section 78102. The Legislature has conferred upon the Commission the powers and duties to give advice to the Michigan Department of Natural Resources (DNR) in its administration of Parts 781, 783, 785 and 791 of the NREPA.
Thus, the Legislature has empowered the Commission to act in an advisory role to the DNR, recognizing the transfer of all of the powers and duties of the Michigan State Waterways Commission to the Department of Natural Resources by virtue of Executive Order No. 1973-2, and retaining in the Michigan State Waterways Commission only the power to "serve in an advisory capacity." Id., section 3(a). It follows that members of the Michigan State Waterways Commission are state officers subject to the incompatible public offices act.
The Legislature has authorized municipalities to establish planning commissions under either 1931 PA 285 (Act 285), MCL 125.31 et seq; MSA 5.2991 et seq, or 1959 PA 168 (Act 168), MCL 125.321 et seq; MSA 5.2963(101) et seq. Members of a township planning commission established under either act are appointed by the township supervisor, with the approval of the township board, for terms of three years.1 A township planning commission is empowered to adopt a master or basic plan for development of the township.2 A township planning commission established under Act 285 is authorized to review site plans for public ways and other public improvements financed by the township. A planning commission's disapproval of a site plan is subject to override by a two-thirds vote of the township board.3 A township planning commission established under Act 168 must provide written reasons for its approval or disapproval of the site plan to the township board.4 Its decision is subject to override by a majority vote of the township board. Members of township planning commissions are public officers subject to the incompatible public offices act. OAG, 1995-1996, No 6834, pp 9, 10 (February 3, 1995); OAG, 1993-1994, No 6791, pp 121, 122-123 (March 11, 1994).
A review of the powers and duties of the two public offices in question demonstrates no subordination of one public office to the other or supervision of one public office over the other. Thus, a person simultaneously occupying both offices does not violate either section 1(b)(i) or section 1(b)(ii) of the incompatible public offices act. The question remains whether such dual office holding constitutes "[a] breach of duty of public office" and thus is prohibited by section 1(b)(iii) of this Act.
The NREPA grants to the DNR the authority to construct and maintain harbors, channels and facilities for vessels in navigable waters. Section 78105(a). The only authority granted to the Michigan State Waterways Commission is to "advise the department on the administration of this part ." Section 78109. (Emphasis added.)
Information supplied with your request indicates that a township planning commission, which exercises the powers and duties of a zoning board, has pending before it a DNR site plan for a boat launch proposed to be located in an area designated for "recreation" in the township's master plan. Since there is no indication that the proposed improvement is to be financed with township funds, the review of the site plan for such a project is pursuant to section 16e of the township zoning act, 1943 PA 184, MCL 125.271 et seq; MSA 5.2963(1) et seq. Township planning commission members reviewing the DNR boat launch site plan would vote to approve or disapprove the site plan. Pursuant to section 20 of the township zoning act, any decision made is reviewable by the township board of appeals.
At common law, in addition to the subordination and supervision elements discussed above, the character and relationship of the two offices was examined for any inherent inconsistency or repugnancy of the two offices. A potential for conflict was sufficient to establish a prohibited incompatibility, even though its exercise might be remote. Attorney General ex rel Moreland v Common Council, 112 Mich 145, 168-173; 70 NW 450 (1897); OAG, 1979-1980, No 5626, pp 537, 538-539 (January 16, 1980). By enactment of the incompatibility of public offices act, the Legislature modified the common law to provide instead that "incompatibility [under the third element] arises only when the performance of the duties of the two offices results in breach of duty of a public office." Id., p 542.
The Michigan State Waterways Commission gives advice to the DNR as to the location and construction of DNR's proposed facilities. The final decision, however, rests with the DNR, which may accept, reject or ignore the Commission's advice. Persons serving as members of a township planning commission, when exercising township zoning authority to review site plans, presumably act in the township's best interests and consistent with the township's master plan. The two public offices are not unlike two offices previously analyzed by this office. In OAG, 1989-1990, No 6627, pp 212, 215 (September 8, 1989), this office concluded that a person simultaneously serving as county planning director and as a member of the advisory panel making recommendations to the Natural Resources Commission for projects to receive grants were not incompatible because "[u]ltimately, only the [Natural Resources] Commission has the authority to decide which projects will be funded." Because the Michigan State Waterways Commission provides only advice to the DNR regarding its proposed facilities, persons simultaneously serving on the Michigan State Waterways Commission and on a township planning commission (passing upon a DNR site plan) do not thereby breach their duty owed to the township or the Commission.
It is my opinion, therefore, that the incompatible public offices act does not prohibit a member of the State Waterways Commission from simultaneously serving as a member of a township planning commission which reviews proposed site plans submitted by the Michigan Department of Natural Resources.
Jennifer M. Granholm
STATE OF MICHIGAN
1 Act 285, section 3; Act 168, section 4.
2 Act 285, section 6; Act 168, section 10.
3 Act 285, section 9.
4 Act 168, section 10.