STATE OF MICHIGAN

The Incompatible Public Offices Act prohibits a person from simultaneously serving as township treasurer and board of education member where the township is located within the school district.

Opinion No. 7106

May 2, 2002

Honorable Scott Shackleton
State Representative
The Capitol
Lansing, MI

You have asked whether the Incompatible Public Offices Act prohibits a person from simultaneously serving as township treasurer and board of education member where the township is located within the school district.

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.

A similar question was considered by the Attorney General in OAG, 1987-1988, No 6418, p 15 (January 13, 1987), where the compatibility of the offices of city treasurer and member of the county board of commissioners was reviewed under the Incompatible Public Offices Act. MCL 211.54 imposes a duty on a township treasurer to account for and pay over to the county treasurer county taxes collected by that treasurer. OAG, 1987-1988, No 6418, concluded that the city treasurer was the agent of the county in the performance of this duty and was therefore subject to supervision by the county board of commissioners in the collection and accounting of county taxes collected. Thus, the simultaneous holding of the two offices by the same person would be contrary to the Incompatible Public Offices Act.

OAG, 1989-1990, No 6611, p 295, 296-297 (February 23, 1990), concluded that the same person could not simultaneously occupy the offices of city treasurer and member of a board of education of a school district located in the same city. By collecting school taxes, the city treasurer was acting in a fiduciary capacity as the agent of the school district. Grand Rapids Public Schools v City of Grand Rapids, 146 Mich App 652; 381 NW2d 783 (1985). In performing such duties the treasurer is "subject to the supervision of the school board." (Emphasis added.) OAG, 1989-1990, No 6611, at 297. Thus, the offices were found to be incompatible under the Incompatible Public Offices Act.

Because the duties of a township treasurer and a city treasurer in the collection and accounting of school taxes are similar (MCL 211.43), the reasoning of OAG, 1987-1988, No 6418, supra, and OAG, 1989-1990, No 6611, supra, compels the conclusion that the same person may not simultaneously serve as township treasurer and school board member in the same school district.

It is my opinion, therefore, that the Incompatible Public Offices Act prohibits a person from simultaneously serving as township treasurer and board of education member where the township is located within the school district.

You have also asked whether the Incompatible Public Offices Act prohibits the same township treasurer and school board member from also serving as an employee of a county encompassing the township and school district. In light of my answer to your first question, it is not necessary to answer your second question.

JENNIFER M. GRANHOLM
Attorney General