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

INCOMPATIBILITY:

COUNTY COMMISSIONER:

CONCEALED WEAPONS LICENSING BOARDS:

Incompatibility of office of member of concealed weapons licensing board and county commissioner

The Incompatible Public Offices Act prohibits a person from simultaneously holding the office of county commissioner and member of the concealed weapons licensing board for that county.

Opinion No. 7129

April 7, 2003

Brian A. Peppler
Chippewa County Prosecuting Attorney
300 Court Street
Chippewa County Courthouse Annex
Sault Ste. Marie, MI 49783

You have asked whether the Incompatible Public Offices Act prohibits a person from simultaneously holding the office of county commissioner and member of the concealed weapons licensing board for that county.

The Incompatible Public Offices Act (Act), 1978 PA 566, as amended, MCL 15.181 et seq, addresses the simultaneous holding of multiple public offices. Section 2 of the Act, MCL 15.182, prohibits public officers and employees from simultaneously holding two or more incompatible offices. Section 1(b) of the Act, MCL 15.181(b), 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.

Incompatibility based on subordination and supervision has been the subject of numerous court cases and opinions of the Attorney General. Authority in one office to appoint or remove a person from another office violates these prohibitions. OAG, 1979-1980, No 5626, p 537, 542 (January 16, 1980), explained that the power of removal constituted an incompatibility at common law that continues in force under the Act:

[T]he first and second criteria of incompatibility as set forth by the statute would extend to those situations in which "the incumbent of one of the offices has the power of appointment as to the other office, or the power to remove the incumbent of the other."

In Michigan, the power in one office to appoint or remove a person from another office creates an incompatibility in those two offices. The law was aptly summarized in Attorney General, ex rel Moreland v Common Council of City of Detroit, 112 Mich 145, 173; 70 NW 450, 459-460 (1897), cited with approval in Petitpren v Wayne-Westland Community Schools, 91 Mich App 590, 593; 283 NW2d 812 (1979):

The power of removal is ever present, ready for use when its exercise is required. The argument that the contingency for its use is very remote is without force. We have been unable to find a decision which holds that one person may hold two offices, in one of which he is clothed with power to remove the person holding the other.

Other opinions of this office have likewise found the power of one office to appoint or remove a person from another office creates an incompatibility in those two offices. See, e.g., OAG, 1981-1982, No 6030, p 534 (January 21, 1982), finding incompatible the offices of mayor (a member of the city council) and city assessor where the city assessor serves at the pleasure of the council.

The Concealed Pistol Licensing Act (Concealed Pistol Act), 1927 PA 372, as amended, MCL 28.421 et seq, regulates the possession and carrying of concealed pistols. The Concealed Pistol Act establishes the concealed weapons licensing board and provides for its membership. Section 5a(1)(a), MCL 28.425a(1)(a), provides that the county prosecuting attorney is a member of the concealed weapons licensing board unless he or she does not want to be a member. This section also provides for the county board of commissioners to appoint the replacement for a county prosecuting attorney who chooses not to serve as a member.

Section 5a(1)(a) of the Concealed Pistol Act, MCL 28.425a(1)(a), empowers the county board of commissioners to both appoint and remove the member of the concealed weapons licensing board replacing the county prosecutor as follows:

The county board of commissioners shall then appoint a replacement for the prosecuting attorney who is a firearms instructor who has the qualifications prescribed in section 5j(1)(c). The person who replaces the prosecuting attorney shall serve on the concealed weapon licensing board in place of the prosecuting attorney for the remaining term of the county prosecuting attorney unless removed for cause by the county board of commissioners. [Emphasis added.]

Information accompanying your letter includes the added detail that the person at issue in your request was appointed to membership on the concealed weapons licensing board before election to the county board of commissioners. While this chronology may have altered the analysis if the county board of commissionersí power under the Concealed Pistol Licensing Act was limited to the appointment of concealed weapons licensing board members, it does not affect the analysis related to the county board of commissioners' power to remove such a member.

It is my opinion, therefore, that the Incompatible Public Offices Act prohibits a person from simultaneously holding the office of county commissioner and member of the concealed weapons licensing board for that county.

MIKE COX
Attorney General