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 INCOMPATIBILITY: PROSECUTING ATTORNEYS: PUBLIC OFFICES AND OFFICERS: Assistant county prosecutor serving on municipal utility board The Incompatible Public Offices Act does not prohibit the same person from
simultaneously serving as an assistant county prosecuting attorney and as an
elected member of a municipal utility board in the same county, in the absence
of negotiations for or a contract between the two public bodies or commencement
of a civil or criminal action by the county prosecuting attorney against the
municipal utility board. Opinion No. 7093 October 24, 2001 Mr. Gary Walker You have asked whether the Incompatible Public Offices Act prohibits the same
person from simultaneously serving as an assistant county prosecuting attorney
and as an elected member of a municipal utility board in the same county. In the Incompatible Public Offices Act (Act), 1978 PA 566, MCL 15.181 et
seq, the Legislature has addressed the simultaneous holding of multiple
public offices. Section 2 prohibits public officers and employees from
simultaneously holding two or more incompatible offices. 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 assistant prosecuting attorney is a public officer under the Act. OAG,
1977-1978, No 5397, p 677 (November 14, 1978). It is also clear that an elected
member of a municipal utility board is a public officer under the Act. See
section 1(e)(ii). Thus, both positions are subject to the Act. The duties and
responsibilities of each public office must, therefore, be examined to determine
whether a prohibited incompatibility exists. The prosecuting attorney is the chief law enforcement officer of the county. People
v Matulonis, 60 Mich App 143, 149; 230 NW2d 347 (1975). The prosecuting
attorney is empowered to appoint assistant prosecuting attorneys (MCL 49.41),
who: [S]hall hold his office during the pleasure of the prosecuting attorney
appointing him, perform any and all duties pertaining to the office of
prosecuting attorney at such time or times as he may be required so to do by
the prosecuting attorney and during the absence or disability from any cause
of the prosecuting attorney. [MCL 49.42.] Members of a municipal utility board generally manage and operate the
municipality's utility in furnishing public utility services provided by the
municipality to its residents and others. The Attorney General has concluded that under the Act, 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, pp 9, 10 (February 3, 1995); or (3) where one
office reviews the accounts of the other public office, OAG, 1991-1992, No 6713,
supra. Applying these standards, the positions of assistant county
prosecuting attorney and member of a municipal utility board are neither
supervisory nor subordinate to one another and, thus, are not incompatible under
sections 1(b)(i) or (ii) of the Act. Given this conclusion, incompatibility will result only if the holding of
both positions results in a breach of duty under section 1(b)(iii) of the Act. A
breach of duty arises when a public official holding dual public offices cannot
simultaneously protect, promote, or advance the interests of both offices. OAG,
1997-1998, No 6931, pp 5, 7 (February 3, 1997). But, as the words chosen by the
Legislature in section 1(b)(iii) of the Act clearly indicate, the action of the
public officer in performing his or her duties must first result in a
breach of duty of a public office in order to give rise to a prohibited
incompatibility. OAG, 1979-1980, No 5626, pp 537, 542 (January 16, 1980). In Macomb County Prosecuting Attorney v Murphy, 464 Mich 149, 163-164;
627 NW2d 247 (2001), the Michigan Supreme Court considered the reasoning in OAG,
1979-1980, No 5626. In that case, a public officer simultaneously served as a
township trustee and as the county's delinquent personal property tax
coordinator voting on a township board decision to continue collecting its own
delinquent personal property taxes in the absence of negotiations for or a
contract with the county to collect the taxes. There, the court approved the
reasoning in OAG, 1979-1980, No 5626, and concluded that vacation of one or the
other public position was not required where the county never negotiated with or
contracted with the township to collect the township delinquent personal
property taxes. The court noted that although voting on the question to continue
collecting township delinquent taxes amounted to disloyalty to the county, it
did not warrant vacation of the county public position. 464 Mich at 166, n 15.
Under the holding in this case, vacation of one public office or public position
is required only when the action taken by the public officeholder results
in an actual breach of duty. That a breach of duty may occur in the future or
that a potential conflict exists does not establish incompatible offices. 464
Mich at 163. In the absence of a contract or negotiations for a contract between the
county and the municipal utility board, there is no basis for concluding that
the performance of duties of both public offices would result in an actual
breach of duty requiring the public officer to vacate one or the other of the
offices. Should the county and the municipal utility board enter into
negotiations for or a contract between the two public bodies, vacation of one of
the offices, depending upon the specific facts, may be required by section
2(b)(iii) of the Act. Likewise, if the county prosecuting attorney were to
commence a civil or criminal action against the municipal utility board,
depending on the specific facts, the assistant prosecuting attorney could likely
not serve in both public offices and would be required to vacate one of them. It is noted that OAG, 1985-1986, No 6349, p 238 (March 21, 1986), concluded
that an assistant county prosecutor could not simultaneously serve as an elected
member of a city council without violating Const 1963, art 3, � 2, which
provides for the separation of powers of government. Under the facts in your
question, however, the municipal utility board is in the executive branch of
government, as is the office of assistant county prosecutor. Thus, OAG,
1985-1986, No 6349, and the separation of powers principle do not apply to your
question. It is my opinion, therefore, that the Incompatible Public Offices Act does
not prohibit the same person from simultaneously serving as an assistant county
prosecuting attorney and as an elected member of a municipal utility board in
the same county, in the absence of negotiations for or a contract between the
two public bodies or commencement of a civil or criminal action by the county
prosecuting attorney against the municipal utility board. JENNIFER M. GRANHOLM |