STATE OF MICHIGAN

Under the Incompatible Public Offices Act, the office of Monroe city councilperson is incompatible with the office of historic district commissioner in that city.

Notwithstanding this incompatibility, the Incompatible Public Offices Act contains an exception that permits the governing body of a municipality having a population less than 25,000 to authorize a public officer or public employee to hold such dual public positions.

Opinion No. 7105

April 17, 2002

Honorable Randy Richardville
State Representative
The Capitol
Lansing, MI

You have asked whether, under the Incompatible Public Offices Act, the office of Monroe city councilperson is incompatible with the office of historic district commissioner in that city.

The Incompatible Public Offices Act (Act), 1978 PA 566, MCL 15.181 et seq, 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:

(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.

As a threshold issue, it must be determined if the Act applies to the two public offices identified in your question. Under the Act, the term "public officer" includes a person who is elected or appointed to a public office of a city (section 1(e)(ii)), as well as a commission or other public entity of a city. Section 1(e)(iii). Thus, the positions of city councilperson and historic district commission member are both subject to the Act. The determination whether the simultaneous holding of these two public offices results in the subordination of one public office to the other, or the supervision of one public officer by another, requires an examination of the nature and duties of each position.

A city council is the legislative body of a city. People ex rel Attorney General v Common Council of Detroit, 29 Mich 108, 112 (1874). Under the Monroe City Charter, the city council is the legislative body of the city.

The Local Historic Districts Act, 1970 PA 169, MCL 399.201 et seq, authorizes the creation of historic district commissions. Under this act, a local unit of government may establish historic districts, for historic preservation purposes, to be administered by a historic district commission. Section 3. The legislative body of a local unit of government may, by ordinance, establish an historic district commission and the method for appointing and terminating its members. Section 4. Under the Local Historic Districts Act, a city council may make the historic district commission its agent to accept and administer grants, gifts, and program responsibilities. Section 6. A city council may acquire or sell historic resources based upon recommendations from the historic district commission. Section 7. A city council may prescribe additional powers and duties for the historic district commission beyond those prescribed in the statute. Section 13. The City of Monroe, Michigan, by ordinance, created an historic district commission and specified that its members be appointed by the mayor and city council. Section 1466.05(b). Under Monroe's ordinance, the city council may remove members of the historic district commission. Section 1466.05(i).

Based on these circumstances, a member of the historic district commission is subordinate to and supervised by Monroe city councilpersons. The Monroe City Council appoints and may remove members of the historic district commission, passes upon commission recommendations to acquire or sell historic resources, and is authorized to prescribe additional powers and duties for the commission. On these facts, the positions are incompatible under sections 1(b)(i) and (ii) of the Act. OAG, 1981-1982, No 6030, p 534 (January 21, 1982); OAG, 1995-1996, No 6854, p 56 (June 8, 1995).

The incompatibility cannot be resolved by a city councilperson abstaining from matters before the Monroe City Council involving the city's historic district commission. OAG, 1995-1996, No 6854, supra, at p 57, rejected abstention as a solution to holding two incompatible public positions:

Abstaining from any matters before the city council involving the Board of Public Works will not allow the person in question to hold both positions, since abstention is itself a breach of duty in this context, resulting in incompatibility under section 1(b)(iii) of 1978 PA 566. Only vacation of one of the two public positions will suffice. Contesti v Attorney General, 164 Mich App 271, 280-281; 416 NW2d 410 (1987), lv den 430 Mich 893 (1988); Wayne County Prosecutor v Kinney, 184 Mich App 681, 684-685; 458 NW2d 674, lv den 436 Mich 887 (1990).

The preceding determination does not, however, end this analysis. Section 3 of the Incompatible Public Offices Act, which creates an exception for municipalities having a population under 25,000, provides, in part, as follows:

(4) Section 2 does not do any of the following:

* * *

(c) Limit the authority of the governing body of a city, village, township, or county having a population of less than 25,000 to authorize a public officer or public employee to perform, with or without compensation, other additional services for the unit of local government.

The population of Monroe is less than 25,000.¹ Section 3(4)(c) of the Act therefore allows a public officer to perform additional services for the city if authorized to do so by the governing body of the city. OAG, 1993-1994, No 6753, p 20 (March 24, 1993).

It is my opinion, therefore, that under the Incompatible Public Offices Act, the office of Monroe city councilperson is incompatible with the office of historic district commissioner in that city.

It is my further opinion that notwithstanding this incompatibility, the Incompatible Public Offices Act contains an exception that permits the governing body of a municipality having a population less than 25,000 to authorize a public officer or public employee to hold such dual public positions.

JENNIFER M. GRANHOLM
Attorney General

¹ According to the 2000 census, the population of Monroe, Michigan, is 22,076.