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
STATE OF MICHIGAN
JENNIFER M. GRANHOLM, ATTORNEY GENERAL
The Incompatible Public Offices Act prohibits a person from simultaneously serving as a trustee on a charter township board and as an assistant township fire chief in the same township.
Opinion No. 7094
November 27, 2001
Honorable Ruth Ann Jamnick
You have asked whether the Incompatible Public Offices Act prohibits a person from simultaneously serving as a trustee on a charter township board and as an assistant township fire chief in the same township.
The Incompatible Public Offices Act (Act), 1978 PA 566, MCL 15.181 et seq, prohibits a public officer or public employee from simultaneously holding two or more incompatible offices.1 MCL 15.182. Section 1(b) of the Act defines incompatible public offices as follows:
As a threshold issue, it must be determined if the Act applies to the two positions identified in your question. Under the Act, the term "public employee" includes an employee of a township [section 1(d)], and the term "public officer" includes a person elected to a township public office. Section 1(e)(ii). A township assistant fire chief, employed by a township, is a public employee. A trustee of a charter township board is elected to public office. MCL 42.5. Thus, each of these positions is subject to the Act. 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.
The Charter Township Act, 1947 PA 359, MCL 42.1 et seq, authorizes the incorporation of a charter township. The act creates a township board composed of a supervisor, township clerk, township treasurer, and four trustees elected by qualified electors of the township. Section 5. A township board is authorized to establish a fire department. Section 13. Although the township supervisor or superintendent is authorized to appoint a fire chief and such other personnel needed to protect persons and property in the township outside the limits of incorporated villages, such appointments are made explicitly subject to approval of the township board. Section 13.
Section 13 of the Charter Township Act imposes a duty on the charter township board to make and establish rules and regulations for governing the fire department, its employees, firefighters, and officers. This legislative authority to appoint a fire chief and other fire department personnel implicitly includes the authority to fix their compensation. Letter Opinion of the Attorney General to Senator Harry A. DeMaso, dated December 29, 1986; Letter Opinion of the Attorney General to Representative Beverly A. Boden, dated September 11, 1991. In the absence of a township ordinance or delegation of authority by the township board, a charter township supervisor may not unilaterally terminate the employment of a township employee without prior approval of the township board. OAG, 1981-1982, No 5939, pp 277, 278 (August 3, 1981). (Emphasis added.)
Since a charter township board is authorized to appoint, fix compensation for, and terminate fire department personnel, as well as adopt rules for the operation of its fire department, it is clear that the position of assistant township fire chief is subordinate to and supervised by the trustees of a charter township board. It follows that the two positions are incompatible under the Act, and therefore a township trustee of a charter township board may not simultaneously occupy the position of assistant fire chief in the same township.
It is my opinion, therefore, that the Incompatible Public Offices Act prohibits a person from simultaneously serving as a trustee on a charter township board and as an assistant township fire chief in the same township.
JENNIFER M. GRANHOLM
The Act includes several exemptions, including an exemption for municipalities
having a population of less than 25,000. Section