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)

The Incompatible Public Offices Act does not prohibit a person from simultaneously serving as an elected county commissioner and appointed township manager in the same county that has a voter-approved fixed allocation of millage for the county, its townships, and its intermediate school district, provided that the township manager has no responsibility for administering, negotiating, or enforcing contracts with the county.

Opinion No. 7119

November 12, 2002

Mr. Gary L. Walker
Marquette County Prosecuting Attorney
234 Baraga Avenue
Marquette, Michigan 49855

You have asked whether the Incompatible Public Offices Act prohibits a person from simultaneously serving as an elected county commissioner and appointed township manager in the same county.

The Incompatible Public Offices Act (Act), 1978 PA 566, MCL 15.181 et seq, addresses the simultaneous holding of multiple public offices. Section 2 of the Act 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.

The respective positions of county commissioner and township manager in this case are neither subordinate to nor supervisory over each other. The Michigan Department of Treasury has advised that Marquette County and its townships do not compete for millage from a county tax allocation board because the county's voters have approved a fixed tax millage allocation for the county, its townships, and its intermediate school district. Nothing in the township manager�s job description deals with equalization of property values. Such equalization can be provided by the County Board of Commissioners if the board believes township figures to be unequal, as allowed in MCL 211.34. This decision, however, can only be appealed by the township supervisor or assessor, not the township manager. Thus, there is no supervisory or subordinate relationship between the two offices as it relates to property tax equalization.

The issue, therefore, is whether the actual performance of the duties of each position results in a breach of duty of public office pursuant to section 1(b)(iii) of the Act. A breach of duty only occurs when the performance of the duties of the two offices actually results in a breach of duty of a public office. Macomb County Prosecutor v Murphy, 464 Mich 149, 163; 627 NW2d 247 (2001). A breach of duty can arise where a dual officeholder is on both sides of a contract or contractual negotiations, 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), or where the public offices compete for tax dollars. Contesti, supra; OAG, 1995-1996, No 6918, p 211, 212 (October 2, 1996); OAG, 1991-1992, No 6695, p 76 (August 21, 1991). If a breach of duty exists, abstention does not cure the incompatibility; rather, vacating an office is the only solution. Contesti, 164 Mich App at 281.

In light of these authorities, a review of the performance of the duties of county commissioner and township manager is necessary to determine whether the simultaneous holding of these two public positions would result in a breach of duty of public office under section 1(b)(iii) of the Act.

Members of the county board of commissioners are elected officials generally responsible for managing the affairs of the county. Const 1963, art 7, �� 7, 8; MCL 46.1 et seq; MCL 46.401 et seq. Township managers are provided for by MCL 41.75a, which provides that "[t]he township board may employ a township manager . . . ." The manager "shall serve at the pleasure of the township board." Information supplied with your request indicates that the specific duties of the township manager have recently been modified and adopted by the township board. Section III of the written Job Description for this particular township's manager provides that the township manager:

Shall not have responsibility for the negotiation or enforcement of any contracts involving entities of the County . . . . Such responsibility shall remain within the duties and responsibility of the Township Supervisor. [Emphasis added.].

Section IV of the township manager's Job Description further establishes that, although the township manager can attend all township board meetings, the manager does not have the right to vote at the meetings. Additionally, the township manager has no responsibility to enforce or administer the one contract that does exist between this particular township and the county sheriff�s department. This provision, coupled with the excluded duties in the township manager�s Job Description, demonstrates that there is no present breach of duty in carrying out the duties of both county commissioner and township manager.

However, future involvement or entry into contractual relations by the manager on behalf of the township with the county for police services or any other purpose would create an incompatible situation that would require the vacation of one of the two offices.

It is my opinion, therefore, that the Incompatible Public Offices Act does not prohibit a person from simultaneously serving as an elected county commissioner and appointed township manager in the same county that has a voter-approved fixed allocation of millage for the county, its townships, and its intermediate school district, provided that the township manager has no responsibility for administering, negotiating, or enforcing contracts with the county.

JENNIFER M. GRANHOLM
Attorney General