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: Positions of township clerk and member of local school board of education

The offices of township clerk and member of a board of education of a local school district will become incompatible on January 1, 2005, the effective date of 2003 PA 302, an amendment to the Michigan Election Law, 1954 PA 116, MCL 168.1 et seq, which provides that local school boards must reimburse townships for conducting a school district's regular or special elections.

Opinion No. 7156

June 1, 2004

Honorable Tom Meyer
State Representative
The Capitol
Lansing, MI 48913

You ask whether the offices of township clerk and member of a board of education of a local school district will become incompatible after the effective date of 2003 PA 302, an amendment to the Michigan Election Law (Election Law), 1954 PA 116, MCL 168.1 et seq, which provides that local school boards must reimburse townships for conducting a school district's regular or special elections.

The Incompatible Public Offices Act (Act), 1978 PA 566, MCL 15.181 et seq, prohibits public officers and employees from holding "2 or more incompatible offices at the same time." MCL 15.182. Section 1(b) of the Act defines "incompatible offices":

"Incompatible offices" means public offices held by a public official[1] 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. [MCL 15.181(1)(b).]

OAG, 1995-1996, No 6918, p 211 (October 2, 1996), concluded that the offices of township clerk and member of a board of education are not incompatible, with certain exceptions. The first exception, which is not relevant to the factual situation presented in your question, arises out of provisions contained in the Revised School Code, MCL 380.1 et seq, and relates to a township clerk's duty to file a certified copy of a resolution of the local board of education certifying the taxes to be levied within the district. See MCL 380.1213 and 380.1801. The second exception arises when the two offices are placed on opposite sides of a proposed contract. In this situation, the offices of township clerk and school board member are incompatible under section 1(b)(iii) of the Act because a person holding both offices would not be able to protect, advance, or promote the interests of both offices simultaneously, thereby resulting in a breach of duty. Macomb County Prosecutor v Murphy, 464 Mich 149, 164; 627 NW2d 247 (2001); OAG, 1997-1998, No 6931, p 5 (February 3, 1997); OAG, 1995-1996, No 6903, p 172 (May 28, 1996); OAG, 1979-1980, No 5626, p 537, 543 (January 16, 1980).2  Abstention from voting on the proposed contract between the two public bodies does not eliminate the incompatibility, since abstention under these circumstances is itself a breach of duty. The public official must vacate one of the two public positions. Contesti v Attorney General, 164 Mich App 271, 281; 416 NW2d 410 (1987); Wayne County Prosecutor v Kinney, 184 Mich App 681, 684-685; 458 NW2d 674, lv den 436 Mich 887 (1990); OAG, 1997-1998, No 6967, p 97 (January 27, 1998).

As noted in OAG, No 6918:

There are several matters in particular on which townships and school districts might contract. A township and school district can enter into a contract allowing the township clerk to conduct school elections under section 1053 of the Revised School Code. . . . While these are specific matters on which townships and school districts may contract, any contractual negotiation or contract between a township and a school district will create an incompatibility between the offices of township clerk and school board member. [Id., at p 214; emphasis added.]

Section 1053 of the Revised School Code provided that a school board and a township could agree to have the township conduct the school district's special or regular election, and that the school board would pay the township's "necessary expenses" as agreed upon by the board. MCL 380.1053(2). This section was recently repealed, effective January 1, 2005, by 2003 PA 299. 2003 PA 299 further amended the Revised School Code by adding section 1206, also effective January 1, 2005, which provides that the Election Law governs election procedures for a school district. MCL 380.1206. More specifically, subsection 1206(2) states:

A school district . . . regular school election or special school election shall be administered and conducted as provided in chapter XIV of the Michigan election law, MCL 168.301 to 168.315. A school district . . . may use general operating funds to reimburse units of local government involved in administering or conducting a regular school election or special school election for the school district . . . as required under the Michigan election law. [MCL 380.1206(2).]

Chapter XIV of the Election Law was added, effective January 1, 2005, by 2003 PA 302. 2003 PA 302 is one of several recent acts amending the Election Law to consolidate and reorganize the election process.3  This chapter requires city and township clerks to conduct school elections if the school district is wholly contained within the boundaries of the city or township. MCL 168.4(e) and MCL 168.301(2). If the school district falls within two or more local jurisdictions, the county clerk is required to administer the school district's election unless certain exceptions apply. MCL 168.4(e), 168.301(2) and 168.305(4).4 Relevant to your inquiry, the chapter provides that:

(1) A school district shall pay to each county, city, and township that conducts a regular or special election for the school district an amount determined in accordance with this section.

(2) If a school district's regular or special election is held in conjunction with another election conducted by a county, city, or township, the school district shall pay the county, city, or township 100% of the actual additional costs attributable to conducting the school district's regular or special election. If a school district's regular or special election is not held in conjunction with another election conducted by a county, city, or township, the school district shall pay the county, city, or township 100% of the actual costs of conducting the school district's regular or special election.

(3) The county, city, or township shall present to a school district a verified account of actual costs of conducting the school district's regular or special election not later than 84 days after the date of the election. The school board shall pay or disapprove all or a portion of the verified account within 84 days after the school district receives a verified account of actual costs under this subsection.

(4) If the school board disapproves all or a portion of a verified account of actual costs under subsection (3), the school board shall send a notice of disapproval along with the reasons for the disapproval to the county, city, or township. Upon request of a county, city, or township whose verified account or portion of a verified account was disapproved under this section, the school board shall review the disapproved costs with the county, city, or township.

(5) A school board, county, city, or township shall use the agreement made between the department of treasury and the secretary of state, as required by section 487,[5] as a basis for preparing and evaluating verified accounts under this section. The secretary of state shall assist a school board, county, city, or township in preparing and evaluating a verified account under this section. If a county, city, or township and a school board cannot agree on the actual costs of an election as prescribed by this section, the secretary of state shall determine those actual costs. [MCL 168.315.]

Thus, this section now mandates that the school district reimburse a township for conducting an election for the district and specifies how the amount to be paid should be calculated. Because reimbursement is mandatory and the amount to be paid essentially non-negotiable, the school board and township are not "negotiating" or entering into a contractual relationship by holding and paying for an election. Therefore, under these circumstances, the board of education and township are not placed on opposite sides of any proposed contract for purposes of finding the offices incompatible.

However, an incompatibility may arise "by virtue of a noncontractual issue coming before one or both of the offices a person holds, if the two public bodies have competing interests on the issue." OAG, No 6918 at p 214 (emphasis added), citing OAG, 1995-1996, No 6885, p 124 (January 11, 1996); OAG, 1995-1996, No 6903, p 172, 174 (May 28, 1996) ("[a] non-contractual matter can also result in a breach of duty, creating an incompatibility, if a person's interest in and/or duty to one office could affect his or her action on behalf of the other office").

2003 PA 302 provides that the township shall be reimbursed 100% of its "actual additional costs," if the school election is held in conjunction with another election, or 100% of its actual costs of holding a school election, and refers to section 487 of the Election Law for guidance. MCL 168.315. Section 487 does not define "actual costs" but does provide a few examples of what is not a "reimbursable cost," stating "[r]eimbursable costs do not include salaries of permanent local officials, the cost of reusable supplies and equipment, or costs attributable to local special elections held in conjunction with the statewide special election." MCL 168.487(2).

Other than these few examples, the statutes appear to give townships discretion to determine the actual costs associated with holding an election. It is unnecessary to delve into all of the costs associated with holding an election, and sufficient to note that there are many costs, including the payment of poll workers and the printing of ballots, over which the township will have discretion. Notably, particular problems may arise when a township exercises its discretion in determining its "additional actual costs," since it may be difficult to assess costs solely attributable to holding the additional school election. After a township has determined its actual costs associated with holding a school election, it presents a verified account to the school board for approval. MCL 168.315(3). Under the Election Law, the school board then must choose to pay or disapprove all or a part of the verified account. MCL 168.315(3).

These circumstances result in incompatibility between the offices of township clerk and member of a local board of education. As a member of the school board, the township clerk would have to approve or disapprove the costs of an election submitted by his or her own office, and regarding which the township had considerable discretion to incur. This presents an issue of "competing interests" between the township and the local board of education. A township will seek to maximize its recovery of costs, and a school board will want to minimize the costs it must pay for an election. Indeed, the Election Law recognizes the conflicting positions of a township clerk and local board of education regarding costs as it provides for a review process and ultimate approval of costs by the Secretary of State. MCL 168.315(4)-(5).6

It is my opinion, therefore, that the offices of township clerk and member of a board of education of a local school district will become incompatible on January 1, 2005, the effective date of 2003 PA 302, an amendment to the Michigan Election Law, 1954 PA 116, MCL 168.1 et seq, which provides that local school boards must reimburse townships for conducting a school district's regular or special elections.

MIKE COX
Attorney General

 1Although the statute does not define the term "public official," it has been construed to include both "public officers" and "employees."  Macomb County Prosecutor v Murphy, 464 Mich 149, 151, 157-158, 161-162; 627 NW2d 247 (2001); OAG, 1979-1980, No 5626, p 537 (January 16, 1980).

2The fact that a breach of duty may occur in the future or that a potential conflict exists does not establish incompatible offices.  Macomb County Prosecutor, 464 Mich at 162-163.  Rather, an actual breach of duty is required under the Act.  Id.

 3The other related acts are 2003 PA 298, 299, 300, 301, 303, 304, 305, and 306.

 4The analysis of the incompatibility issue applies equally to city or county clerks who serve as members of a board of education of a local school district.

 5Section 487 is MCL 168.487 of the Election Law, which provides, in part: 

    (1)  If a statewide special election is called to submit a proposed constitutional amendment to the electors of this state, this state shall reimburse each county, city, and township for the cost of conducting the special election as provided in
this section.  The reimbursement shall not exceed the verified account of actual costs of the special election.  This state shall reimburse each county, city, and township under this section notwithstanding that the county, city, or township also holds a local special election in conjunction with the statewide special election.

    (2)  Payment shall be made upon presentation and approval of a verified account of actual costs to the department of treasury, local government audit division, after the department of treasury and the secretary of state agree as to what constitutes valid costs of conducting an election.  Reimbursable costs do not include salaries of permanent local officials, the cost of reusable supplies and equipment, or costs attributable to local special elections held in conjunction with the statewide special election.

6Moreover, if dissatisfied with the election administration of the township clerk, the remedies of the school board include making complaints to the Secretary of State, who supervises elections through the Bureau of Elections in the Michigan Department of State.  MCL 168.21.