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

TOWNSHIPS:

COUNTIES:

INCOMPATIBILITY:

 Compatibility of membership on township planning commission and county planning commission

The offices of member of a township planning commission and member of a county planning commission are compatible and may be held simultaneously by the same person. Due to intervening legislation, OAG, 1995-1996, No 6837, p 19 (February 23, 1995), no longer expresses the opinion of the Attorney General.

Opinion No. 7161

September 15, 2004

Honorable Lauren M. Hager
State Representative
The Capitol
Lansing, Michigan

You have asked whether 2001 PA 263, which amends 1959 PA 168, MCL 125.321 et seq, commonly known as the Township Planning Act, and 2001 PA 264, which amends 1945 PA 282, MCL 125.101 et seq, commonly known as the County Planning Act, eliminate the incompatibility between the public offices of township planning commissioner and county planning commissioner, allowing a person to simultaneously hold both positions.

Section 2 of the Incompatible Public Offices Act, 1978 PA 566, MCL 15.181 et seq, states that "a public officer or public employee shall not hold 2 or more incompatible offices at the same time." MCL 15.182. Section 1(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. [MCL 15.181(b).]

In order to answer your question, an examination of the duties and powers of the two public offices is necessary. A township planning commission is comprised of between five and nine members who have been appointed by the township supervisor with the approval of the township board. MCL 125.324. The township planning commission is responsible for adopting a basic development plan for the township. MCL 125.326. The township planning commission has the responsibility to adopt and carry out a development plan through the powers granted in the Township Planning Act. MCL 125.323(1).

The county planning commission is comprised of between five and eleven members appointed by the county board of commissioners. MCL 125.102. The county planning commission is responsible for adopting a development plan for the county. MCL 125.101. The County Planning Act was enacted to, among other things, provide for a county plan to promote public health, safety, general welfare, and to encourage reasonable use of resources for all residents of the county. MCL 125.104.

When originally enacted, both the Township Planning Act and the County Planning Act required township planning commissions to send all plans to the county planning commission for review and approval. This created a supervisory/subordinate relationship between township planning commissions and the county planning commission, causing incompatibility.

Because of the incompatibility, OAG, 1995-1996, No 6837, p 19 (February 23, 1995), determined that where a township planning commission was formed under the Township Planning Act, a member of a township planning commission may not simultaneously hold a position on the county planning commission. The opinion determined that if an individual simultaneously held a position on both planning commissions, then the member would essentially be "passing on his work" because the township planning commission was required to submit township plans to the county planning commission for review and approval. OAG No 6837 at p 20.1

However, intervening legislation has changed the situation. The Legislature, through 2001 PA 263 and 264, amended the Township Planning Act and the County Planning Act to allow the county planning commission to serve only as a coordinating agency for all planning commissions within the county. The amended legislation altered the role of the county planning commission. The Township Planning Act now provides:

Before preparing a plan, a township planning commission shall mail . . . a notice, explaining that the planning commission intends to prepare a plan and requesting the [county planning commission�s] cooperation and comment. [MCL 125.327a (2).]

and:

(2) After preparing a proposed plan, the township planning commission shall submit the proposed plan to the township board for review and comment.

(3) If the township board approves the distribution of the proposed plan, it shall notify the secretary of the planning commission and the secretary of the township planning commission shall submit a copy of the proposed plan, for review and comment to [the county planning commission].

* * *

(6) The statements provided for [by the county planning commission] are advisory only. [MCL 125.327b; emphasis added.]

Thus, the plans of township planning commissions are no longer subject to "approval" by the county planning commission. Instead, township planning commissions are required only to submit the township plan to the county planning commission for "review and comment." This establishes a purely advisory role for the county planning commission.2

Because the county planning commission now has only an advisory role in reviewing township plans, there is no longer a supervisory/subordinate relationship present. Even though the Legislature has not expressly authorized a member of the township planning commission to serve on the county planning commission, the fact that the role of the county planning commission has changed to strictly advisory allows a person to simultaneously occupy both offices without violating sections 1(b)(i) and (ii) of the Incompatible Public Offices Act.

The only remaining inquiry to be resolved is whether a "breach of duty of public office" violating section 1(b)(iii) of the Incompatible Public Offices Act would result if a member simultaneously held positions in the two public offices. A breach of duty generally occurs when a member of two public offices is unable to protect, advance, and promote the interests of both positions at the same time. Macomb County Prosecuting Attorney v Murphy, 464 Mich 149, 164; 627 NW2d 247 (2001). The sole duty that would be applicable here is the task of the county planning commission to review and make comments on the township plans. Since this role of the county planning commission is advisory only, a member of both offices would not breach any duty owed to either public office. See OAG, 1999-2000, No 7033, p 65 (September 16, 1999).

It is my opinion, therefore, that the offices of member of a township planning commission and member of a county planning commission are compatible and may be held simultaneously by the same person. Due to intervening legislation, OAG, 1995-1996, No 6837, p 19 (February 23, 1995), no longer expresses the opinion of the Attorney General.

MIKE COX
Attorney General

1 Despite this, the opinion did conclude that a member of a township planning commission would not be precluded from serving on an advisory council to the county planning commission, as permitted under MCL 125.107.

2 The conclusion reached in this opinion is similar to OAG, 1999-2000, No 7060, p 142 (August 28, 2000).  That opinion dealt with a township planning commission created under the Municipal Planning Act, 1931 PA 285, MCL 125.31 et seq, which was significantly different than that of the Township Planning Act before the 2001 amendments, effective January 9, 2002.