STATE OF MICHIGAN

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
State Senator
The Capitol
Lansing, MI

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:

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:

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:

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
Attorney General