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
COMMUNITY COLLEGES: CHARTER TOWNSHIPS: PUBLIC OFFICES AND PUBLIC OFFICERS: The Incompatible Public Offices Act does not prohibit a person from
simultaneously serving as a trustee in a charter township and as a member of a
board of trustees of a community college district unless these two governmental
entities enter into contractual negotiations or a contract or some other
situation arises in which the public official holding dual offices cannot
advance the interests of both offices simultaneously. Opinion No. 7173 March 18, 2005 Honorable Bruce Patterson You have asked if the Incompatible Public Offices Act (Act), 1978 PA 566, MCL
15.181 et seq, prohibits a person from simultaneously serving as a
trustee in a charter township and as a member of a board of trustees of a
community college district. A similar question was addressed in Letter Opinion of the Attorney General to
Representative William P. Hampton, dated June 10, 1968. At the time that opinion
was issued, the Act had not been passed. The opinion applied the common law rule
of incompatibility of public offices that two offices are incompatible if the
duties of the two offices are such that it would be improper public policy for
one person to occupy both offices. Further, at common law the acceptance of a
second and incompatible public office served to vacate the first office.
Attorney General, ex rel Moreland v Common Council of Detroit, 112 Mich 145,
168, 174; 70 NW 450 (1897). The letter opinion concluded that the two public offices were incompatible
for two reasons. First, by statute the community college board of trustees had
the authority to agree to pay special assessments for local improvements to a
township. Second, the township board of trustees had the statutory authority to
contribute funds toward the support of the community college. In 1978, the Legislature passed the Act prohibiting the same person from
simultaneously holding two incompatible public offices. The Legislature has the
constitutional power to alter the common law by the enactment of statutes. Const
1963, art 3, � 7. O'Brien v Hazelet & Erdal, 410 Mich 1, 15; 299 NW2d 336
(1980). It defined incompatible public offices in section 1(b) of the Act 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. [MCL 15.181(b).] Thus, it must first be determined if the Act applies to the two public
offices identified in your question. The law is settled that the Act applies to
public positions occupied by both public officers and public employees.
Macomb County Prosecuting Attorney v Murphy, 464 Mich 149, 157-162; 627 NW2d
247 (2001). A charter township trustee elected to the charter township board
under section 5 of the Charter Township Act, 1947 PA 359, MCL 42.5, is a public
officer under section 1(e)(ii) of the Act, MCL 15.181(e)(ii). A member of the
board of trustees of a community college district elected under section 156 of
the Community College Act of 1966, 1966 PA 331, MCL 389.156, is also a public
officer under section 1(e)(iii) of the Act, MCL 15.181(e)(iii). To determine whether the simultaneous holding of these two public offices
results in the subordination of one public office to another, or the supervision
of one public officer by another, the duties of each position must be examined.
The board of trustees in a charter township is the governing body of that
township. Huxtable v Meridian Charter Twp Bd of Trustees, 102 Mich App
690, 692; 302 NW2d 282 (1981). The board of trustees of a community college
district is the governing body of that community college district with a duty to
operate the community college. West Shore Community College v Manistee County
Bd of Comm'rs, 389 Mich 287, 303; 205 NW2d 441 (1973). In that both the
charter township and the community college district are separate and distinct
units of government that do not control each other, there is no subordinate or
supervisory relationship between the two public offices in question. Thus, these
dual public offices are not incompatible under the first two incompatibility
criteria under section 1(b) of the Act, MCL 15.181(b). It must next be considered whether this dual office holding results in "a
breach of duty of public office" under section 1(b) of the Act. Under the common
law doctrine of incompatibility of public offices, the fact that two public
entities could contract with each other was enough to render the two public
offices incompatible. The potential for a conflict between the interests of the
two public entities was sufficient to result in an incompatibility, even if the
two public entities had never negotiated for or entered into a contract with
each other. But under section 1(b) of the Act, there is no incompatibility
unless the performance of the duties of one of the offices results in one of the
three prohibited situations in section 1(b) of the Act. The mere potential for a
conflict does not result in incompatibility. Thus, in the contract situation,
there is no incompatibility unless the two units of government actually enter
into contract negotiations or a contract. Macomb County Prosecuting Attorney
v Murphy, 464 Mich at 162-167. A breach of duty arises wherever a public officer holding dual offices cannot
promote the interests of both offices simultaneously. That may occur in a
contract setting or other setting where the public official in question cannot
simultaneously advance the interests of both public offices. Macomb County
Prosecuting Attorney v Murphy, 464 Mich at 164. One example of a
non-contractual breach of duty is holding the offices of township trustee and
school district superintendent when the township and the school district are
competing for higher millage rates before the county tax allocation board.
Contesti v Attorney General, 164 Mich App 271, 281; 416 NW2d 410 (1987).
Another example is holding the offices of township clerk and board of education
member when, by statute, a board of education must reimburse a township for
conducting a school district's regular or special election. In that situation,
the two units of government have competing interests as the township will seek
to maximize its recovery of costs and the board of education will seek to
minimize the election costs to be reimbursed to the township. OAG, 2003-2004, No
7156, p __ (June 1, 2004). The 1968 letter opinion to Representative Hampton relied upon section 145 of
the Community College Act of 1966, MCL 389.145, as a basis for finding an
incompatibility of public offices. Section 145 still authorizes a community
college board of trustees to agree to pay special assessments for local
improvements to a township: The property of the community college district shall be exempt from all
taxation and assessment, and no writ of attachment or writ of execution
shall be levied upon the property thereof. The board of trustees may enter
into an agreement with any city, village or township or with the board of
county road commissioners whereby the community college district agrees to
pay special assessments for local improvements levied against any community
college district property irrespective of the use to which the property is
put. [MCL 389.145.] Under the Act, unlike the common law, this section would not result in an
incompatibility of public office unless the township had made local improvements
and the issue had arisen before the board of trustees of the community college
district whether to agree to pay special assessments for the local improvements.
Macomb County Prosecuting Attorney v Murphy, 464 Mich at 166-167. The 1968 letter opinion to Representative Hampton also relied on the
statutory authority of a township to contribute to the support of a community
college. Today that statutory authority is found in section 1607 of 1976 PA 451,
the Revised School Code, MCL 380.1607: A county, township, or other governmental unit, by action of its
governing body may contribute annually toward the support of a community
college maintained by a school district pursuant to this part. Tuition
and fees charged by the school district for enrollment in the community
college shall be uniform throughout a county, township, or governmental unit
making an annual contribution to the community college. [Emphasis added.] Currently, Michigan only has one community college maintained by a school
district. All the other community colleges are now maintained by separate and
independent community college districts under the Community College Act of 1966,
1966 PA 331, MCL 389.1 et seq. The community college involved in this
opinion request is not maintained by a school district. Thus, section 1607 of
the Revised School Code is not relevant to this inquiry. The two rationales for finding an incompatibility of public offices in the
1968 letter opinion to Representative Hampton no longer automatically apply.
Under the Act, there is no longer any basis for finding a breach of duty based
on a hypothetical or potential conflict between the interests of the two
governmental units in question. It is my opinion, therefore, that the Incompatible Public Offices Act does
not prohibit a person from simultaneously serving as a trustee in a charter
township and as a member of a board of trustees of a community college district
unless these two governmental entities enter into contractual negotiations or a
contract or some other situation arises in which the public official holding
dual offices cannot advance the interests of both offices simultaneously. MIKE COX
INCOMPATIBILITY:
Incompatibility of charter
township trustee and community college trustee
State Senator
The Capitol
Lansing, MI
Attorney General