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:

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
Marquette County Prosecutor
234 Baraga Avenue
Marquette, MI 49855

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
Attorney General