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
PUBLIC OFFICERS AND OFFICES:
County commissioner serving as head of village department of public works
The Incompatible Public Offices Act does not prohibit a person from simultaneously serving as a member of a county board of commissioners and as head of a village's department of public works in the same county when a petition to annex land to the village has been submitted to the county board of commissioners for review and approval.
Opinion No. 7071
January 4, 2001
Honorable Ken Bradstreet
You have asked whether the Incompatible Public Offices Act prohibits a person from simultaneously serving as a member of a county board of commissioners and as head of a village's department of public works in the same county when a petition to annex land to the village has been submitted to the county board of commissioners for review and approval.
The Incompatible Public Offices Act, 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq (Act), prohibits the same person from simultaneously holding two or more incompatible public offices. 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: As a threshold issue, it must be determined if the Act applies to the two public positions identified in your question. Members of the county board of commissioners are elected officials. OAG, 1995-1996, No 6903, p 172, 173 (May 28, 1996). The head of a village department of public works is a village officer appointed by the village council under MCL 62.2(1); MSA 5.1216(1). Thus, each of these positions is a public office under section 1(e)(ii) of the Act, which covers persons elected or appointed to county and village offices.
(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 Act exempts from its incompatibility restrictions on governmental units having populations under 25,000. Section 3(4)(c). The governmental units that are the subject of your question have populations under 25,000. But this exemption applies only to public positions within the same unit of government. Here, the positions are in different units of government and, therefore, section 3(4)(c)'s exemption does not apply.
The determination whether the simultaneous holding of the two public offices results in the subordination of one public office to another, or the supervision of one public officer by another, requires an examination of the nature and duties of each position. Members of a county board of commissioners are elected officials generally responsible for managing the affairs of the county. OAG, 1995-1996, No 6903, at 173. The village council appoints the head of the department of public works and prescribes the powers and duties of the position under MCL 62.2(1); MSA 5.1216(1). The county board of commissioners does not supervise or control the village department head, nor vice-versa, since the county and village are separate and distinct units of local government. Under these circumstances, there is no subordinate or supervisory relationship between the offices of county commissioner and head of the village department of public works. Thus, the first two incompatibility criteria under section 1(b) of the Act do not render the dual positions incompatible.
The remaining question is whether the dual office holding constitutes a "breach of duty" under section 1(b)(iii) of the Act as a result of the village annexation petition pending before the county board of commissioners. The breach of duty provision of the Act was recently analyzed in Macomb County Prosecutor v Murphy, 233 Mich App 372, 380-382; 592 NW2d 745 (1999), lv gtd 462 Mich 854; 613 NW 2d 718 (2000), where the court stated that:
The Attorney General has developed the following standard for determining when a breach of public duty exists:
A breach of duty arises when a public official holding dual offices cannot protect, advance, or promote the interest of both offices simultaneously. A public office is a public trust, and the courts have imposed a fiduciary standard upon public officials that requires disinterested conduct. . . . An opinion of the Attorney General, while not precedentially binding, can be persuasive authority. In this instance, we agree with the Attorney General's analysis and adopt it as our own. The purpose of the incompatible offices act is to preclude any suggestion that a public official is acting out of self-interest or for hidden motives because of a conflict between his two offices. This purpose is served by finding a breach of duty when an issue arises in which one constituency's interests may conflict with the interests of a separate constituency represented by the official. By preventing such situations, the public is assured that its officials do not suffer from divided loyalties. [Citations omitted.]
It is well established that a breach of duty creating an incompatibility results when a person holding dual public offices is placed at opposite sides of a contract. An incompatibility can also result out of a non-contractual matter, such as when one office has to pass upon a matter affecting the other office.
In analyzing the Act's breach of duty provision, one must examine whether there are conflicting interests between the village constituency and the county constituency such that the public official holding dual offices "cannot protect, advance, or promote the interest of both offices simultaneously." To do this, one must scrutinize the annexation petition process. Section 4 of the Home Rule Village Act, 1909 PA 278, MCL 78.1 et seq; MSA 5.1511 et seq, addresses the review of village annexation petitions by a county board of commissioners. Under section 4, the board simply determines whether the annexation petition complies with the requirements of the Home Rule Village Act. If the annexation petition does not comply with the statute, then the annexation process ends. If the petition conforms to the statute, then the county board of commissioners submits the annexation question to the qualified electors of the district to be affected. The limited scope of the question before the county board of commissioners is spelled out in section 4 of the Home Rule Village Act as follows:
[A]nd if, before final action thereon, it shall appear to said board or a majority thereof that said petition or the signing thereof does not conform to this act, or contains incorrect statements, no further proceedings pursuant to said petition shall be had, but, if it shall appear that said petition conforms in all respects to the provisions of this act, and that the statements contained therein are true, said board of supervisors1 shall, by resolution, provide that the question of making the proposed incorporation, consolidation or change of boundaries shall be submitted to the qualified electors of the district to be affected at the next general election, . . . . After the adoption of such resolution neither the sufficiency nor legality of the petition on which it is based may be questioned in any proceeding.
The narrow scope of review by a county board of commissioners is confirmed in Bray v Stewart, 239 Mich 340; 214 NW 193 (1927). There the plaintiff challenged a village incorporation under the Home Rule Village Act. The challenge included the contention that the statute was invalid because under section 4 the county board of supervisors had no discretion in reviewing the incorporation petition. In finding that the county board lacked any discretion in reviewing the petition, the court stated as follows:
2. Lack of Discretion in Board of Supervisors. It is urged that the entire act is invalid because it makes it obligatory on the board of supervisors to order an election if the petition presented meets the requirements of the act.
Section 2 provides for a petition, signed by at least 25 qualified electors residing in each of the townships in which the territory proposed to be incorporated is situate. Section 4 provides that the petition must be filed with the clerk of the board at least 30 days before action is taken thereon, and, if the petition is found to conform to the statute, the board shall, by resolution, provide for its submission, as before stated.
The duty devolving on the board of supervisors is purely ministerial. They are not permitted to exercise any judgment except to determine whether the requirements of the statute relative to the petition have been complied with.
239 Mich at 345. (Emphasis added.)
Under the facts presented by your question, the county board of commissioners, in reviewing the annexation petition, does not decide whether the village boundaries should be expanded, thereby potentially increasing the number of connections to the village water and sewer lines under the management of the village's department of public works. Because the board is not entitled to exercise any judgment in passing on the annexation petition except to determine statutory compliance, a board member who also serves as head of the village's department of public works could protect, advance and promote the interest of both offices simultaneously. The narrow question before the board of commissioners is whether the annexation petition complies with the Home Rule Village Act. This limited question does not implicate any competing interests between the county constituency and the village constituency and, thus, does not give rise to a breach of duty under section 1(b)(iii) of the Act.
It is my opinion, therefore, that the Incompatible Public Offices Act does not prohibit a person from simultaneously serving as a member of a county board of commissioners and as head of a village's department of public works in the same county when a petition to annex land to the village has been submitted to the county board of commissioners for review and approval.
JENNIFER M. GRANHOLM
1 All references to county supervisors or county boards of supervisors shall be deemed to mean county commissioners and county boards of commissioners. MCL 46.416; MSA 5.359(16).