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 MIKE COX, ATTORNEY GENERAL
STATE OF MICHIGAN
MIKE COX, ATTORNEY GENERAL
Holding dual offices as city attorney and city council member of two different cities
The Incompatible Public Offices Act prohibits a person from simultaneously serving as a member of a city council of one city and as the city attorney for another where the two cities are parties to a contract.
Opinion No. 7125
February 20, 2003
Honorable Randy Richardville
You have asked whether the Incompatible Public Offices Act permits a person to simultaneously serve as a member of a city council of one city and as the city attorney of another where the two cities are parties to a contract.
In the Incompatible Public Offices Act (Act), MCL 15.181 et seq, the Legislature has enacted a general prohibition against holding incompatible offices. Section 2 of the Act provides in relevant part that "a public officer or public employee shall not hold 2 or more incompatible offices at the same time." MCL 15.182. A "public officer" is defined to include a person who is elected or appointed to a public office of a city in this state or to a council of a city in this state. MCL 15.181(e).
You advise that your inquiry addresses the situation of a person serving on the Detroit City Council and as Ecorse City Attorney. Section 3-105 of the Detroit City Charter states that the elective officers of the city include the nine members comprising the city council. Section 9 of chapter VI of the Ecorse City Charter describes the city attorney among the city's appointive officers. See also OAG, 1987-1988, No 6418, p 15 (January 13, 1987) (treating the office of city attorney as a public office subject to the incompatibility provisions of MCL 15.182) and OAG, 1991-1992, No 6717, p 139 (April 7, 1992) (same). Thus, both the offices of city council member and of city attorney involved in your inquiry fall within the Act's definition of "public officer."
Whether these two positions are "incompatible" as defined in the Act requires consideration of section 1(b), MCL 151.181 (b), which defines "incompatible offices" as:
[P]ublic 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.
Recognizing that the Legislature used the undefined term "public official" in defining the phrase "incompatible offices" instead of the defined terms "public employee" and "public officer," the Michigan Supreme Court construed the phrase "public offices held by a public official" to encompass positions of public employment. Macomb County Prosecuting Attorney v Murphy, 464 Mich 149, 158-162; 627 NW2d 247 (2001). Thus, the positions of city council member and city attorney both are "public offices held by a public official" falling within the scope of the Act's proscriptions.
The analysis next proceeds to whether a person's performance of the duties of city council member of one city and city attorney of a second city results in any of the three situations prohibited under section 2 of the Act. There is no suggestion in the materials provided to this office that the two offices are either subordinate to one another or supervised by one another. The answer to your question therefore turns on whether the performance of the duties of one of these offices results in a breach of duty of public office with regard to the other.
The Michigan Supreme Court has provided recent guidance in analyzing this issue consistent with numerous opinions issued by this office. In Macomb County Prosecuting Attorney, supra, the Court made clear that incompatibility under the Act "exists only when the performance of the duties of one of the public offices 'results in' one of the three prohibited situations." Id., at 162-163, quoting OAG, 1979-1980, No 5626, p 537 (January 16, 1980). According to the Court, "the Legislature clearly restricted application of the statutory bar to situations in which the specified outcomes or consequences of a particular action actually occur." Id., at 163. Incompatibility is not established where a breach of duty may occur or where there exists only the potential for a conflict. Id.
A breach of duty does arise, however, when a public official holding dual offices "cannot protect, advance, or promote the interest of both offices simultaneously." Id., at 164. Determining whether a breach of duty exists requires examination into the duties and responsibilities of each of the dual offices held. OAG, 1993-1994, No 6791, p 121 (March 11, 1994). A public office is a public trust, and the courts have imposed a fiduciary standard upon public officials that requires disinterested conduct. OAG, 1997-1998, No 6931, p 5 (February 3, 1997), citing Wilson v Highland Park City Council, 284 Mich 96, 104; 278 NW 778 (1938). If anything arises that prevents a person holding dual offices from serving either of the offices with undivided loyalty, a breach of duty occurs and the offices are incompatible. OAG No 6931, at 7.
One circumstance presenting a clear incompatibility under these guiding principles is when a person is placed at both ends of a contract between the two governmental units served. Macomb County Prosecuting Attorney, 464 Mich at 166. The degree of control exercised by the person in the situation presented is not determinative; rather, "the positioning of the two offices on opposite sides of a contractual relationship is the crucial factor." Wayne County Prosecutor v Kinney, 184 Mich App 681, 685; 458 NW2d 674 (1990), lv den 436 Mich 887 (1990). Where the two entities are parties to an existing contract or are negotiating toward the formation of a contract between them, incompatibility is clearly demonstrated and prohibited. Macomb County Prosecuting Attorney, 464 Mich at 165.
Moreover, a public official's abstention from the responsibilities of his or her office in order to avoid participating in the approval, amendment, or implementation of an agreement between the two public entities which he or she serves is itself a breach of duty. "Only vacation of one office will resolve the public official's dilemma." Contesti v Attorney General, 164 Mich App 271, 281; 416 NW 2d 410 (1987), lv den 430 Mich 893 (1988), quoting with approval, OAG, 1979-1980, No 5626, p 537, 545 (January 16, 1980).
Applying these authorities to the facts presented by your request, we first examine the office of city council member. We are advised through materials forwarded to this office that all the members of the Detroit City Council are involved in decisions that directly affect the water rates that will be paid by residents of the City of Ecorse, through an existing contractual arrangement between the City of Ecorse and the Detroit Water and Sewerage Department. As recently as February 2002, the Detroit City Council approved resolutions adjusting the rates to be charged suburban customers, including Ecorse, and your letter indicates that a public hearing was scheduled for February of this year on proposed water rates for the 2003-2004 fiscal year. While the subject contract does not include a provision specifying a particular methodology or formula for determining the rates that will be set, we are advised that, upon publication of the proposed rates for the coming fiscal year, the City's Water Department solicits comments from each municipality affected. The municipality is provided an opportunity to contest certain aspects of the rate and adjustments may result from that process before the rates are presented to the City Council for approval.
In addition, clause 16 of the contract between the two cities provides that "all existing and future charter provisions and ordinances of the City of Detroit and pertaining to the supplying of water to suburban communities shall govern the same and be considered a part of this agreement." Thus, consideration of any such ordinance or charter provision by the Detroit City Council constitutes consideration of a revision of the contract with the City of Ecorse as well. The forwarded materials indicate that the Detroit City Council voted to approve a water bond ordinance as recently as Fall 2002. Finally, the existing term of the contract is for an "indefinite period of time," subject to termination upon one year's notice by either party or upon mutual consent.
Turning to the other of the dual offices at issue in your question, a municipal attorney's duties generally include acting as legal advisor to the municipality and representing the municipality in legal proceedings, but each city's charter must be examined to determine the authority actually conferred. The person serving as Ecorse City Attorney under that city's charter "shall act as legal advisor to and as attorney and counsel for the municipality and all its officers and departments in matters relating to their official duties." Ecorse City Charter, chapter VI, section 9, paragraph 1. In addition, the city attorney is required to conduct all the city's litigation and, of particular relevance to your question, "to prepare, or officially pass upon, all contracts . . . in which the City is concerned." Id.
Thus, as a member of the Detroit City Council and as Ecorse City Attorney under these circumstances, the person involved is plainly positioned on both sides of the contractual relationship between the two cities described above giving rise to a prohibited incompatibility. When called upon to consider whether to approve or disapprove the rates to be charged residents of the City of Ecorse and when considering whether to adopt water-related ordinances that will become a part of the contract with Ecorse by operation of clause 16, the person who also serves as Ecorse City Attorney cannot simultaneously satisfy a fiduciary duty of loyalty owed to both cities. In addition, as long as the contract is in place and the rates continue to be subject to adjustment, questions necessarily arise regarding whether it continues to be in the best interests of the respective cities to continue the contract.
This conclusion is consistent with OAG No 6717, p 139, supra, in which it was determined that a person may not simultaneously serve as a member of a governing body of one unit of local government and as the attorney for a second unit of local government if the two units of government have entered into or are negotiating one or more contracts with one another.1
Finally, it should be emphasized that a person's abstention from the responsibilities of his or her office does not serve to eliminate the incompatibility. Contesti, supra. A person cannot refrain from voting on a matter to avoid a breach of public duty or attempt through other less direct means to avoid the responsibilities that inhere in a given office.2
It is my opinion, therefore, that the Incompatible Public Offices Act prohibits a person from simultaneously serving as a member of a city council of one city and as the city attorney for another where the two cities are parties to a contract.
1As was also stated in OAG No 6717, this opinion does not address the extent to which the Michigan Rules of Professional Conduct may apply to any of the facts addressed in this opinion. Those questions are within the sole prerogative of the Michigan Supreme Court in the exercise of its constitutional authority to regulate the practice of law in this state and the State Bar of Michigan. Id., at 142.
2For example, delegating the duties held by the office of city attorney to another or contracting out any part of the duties defined by charter as included within the position's responsibilities would not suffice to avoid an incompatibility. The only resolution of the "public official's dilemma" is vacating one of the offices. Contesti, 164 Mich App at 281.