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 

ANNEXATION:

COUNTIES:

GENERAL LAW VILLAGE ACT:

INCOMPATIBILITY:

PUBLIC OFFICES AND OFFICERS:

VILLAGES: 

County Commissioner serving as head of village public works department

 

The Incompatible Public Offices Act does not prohibit a person from simultaneously serving as a member of the county board of commissioners and the head of a general law village's public works department, when that village's council has submitted an annexation petition to the county board of commissioners for review and approval under MCL 74.6, absent facts demonstrating that the person cannot protect, advance, or promote the interests of both offices simultaneously. 

Opinion No.  7184 

January 12, 2006
 

Honorable Howard Walker
State Representative
The Capitol
Lansing, MI

 You have asked if the Incompatible Public Offices Act (Act), MCL 15.181 et seq, prohibits a person from simultaneously serving as a member of the county board of commissioners and the head of a general law village's public works department, when that village's council has submitted an annexation petition to the county board of commissioners for review and approval.

 OAG, 2001-2002, No 7071, p 2 (January 4, 2001), addressed this same question, concluding there was no incompatibility of public offices.  But that opinion was premised on the village in question being subject to the Home Rule Village Act, 1909 PA 278, MCL 78.1 et seq.  Under section 4 of that statute, if the annexation petition meets the statutory requirements, the county board of commissioners has a ministerial duty to approve the petition and submit the annexation question to the village voters. 

In fact, the village in question is subject instead to the General Law Village Act, 1895 PA 3, MCL 61.1 et seq.  Under chapter XIV of that act, MCL 74.6, the county board of commissioners has discretion in determining whether to grant the village's annexation petition.  This opinion applies the General Law Village Act annexation provisions in resolving the incompatibility question.[1]

 The preliminary analysis set forth in OAG No 7071, at pp 2-3, is equally applicable here:

The Incompatible Public Offices Act, 1978 PA 566, MCL 15.181 et seq; MSA 15.1120(121) et seq (Act), prohibits the same person from simultaneously holding two or more incompatible public offices.  Section 1(b) of the Act defines incompatible public offices 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.

                 As a threshold issue, it must be determined if the Act applies to the two public positions identified in your question.  Members of the county board of commissioners are elected officials.  OAG, 1995-1996, No 6903, p 172, 173 (May 28, 1996).  The head of a village department of public works is a village officer appointed by the village council under MCL 62.2(1); MSA 5.1216(1).  Thus, each of these positions is a public office under section 1(e)(ii) of the Act, which covers persons elected or appointed to county and village offices. 

The Act exempts from its incompatibility restrictions . . . governmental units having populations under 25,000.  Section 3(4)(c).  The governmental units that are the subject of your question have populations under 25,000.  But this exemption applies only to public positions within the same unit of government.  Here, the positions are in different units of government and, therefore, section 3(4)(c)'s exemption does not apply. 

                The determination whether the simultaneous holding of the two public offices results in the subordination of one public office to another, or the supervision of one public officer by another, requires an examination of the nature and duties of each position.  Members of a county board of commissioners are elected officials generally responsible for managing the affairs of the county.  OAG, 1995-1996, No 6903, at 173.  The village council appoints the head of the department of public works and prescribes the powers and duties of the position under MCL 62.2(1); MSA 5.1216(1).  The county board of commissioners does not supervise or control the village department head, nor vice-versa, since the county and village are separate and distinct units of local government.  Under these circumstances, there is no subordinate or supervisory relationship between the offices of county commissioner and head of the village department of public works.  Thus, the first two incompatibility criteria under section 1(b) of the Act do not render the dual positions incompatible. 

The remaining question is whether this dual office holding results in a "breach of duty" under section 1(b)(iii) of the Act as a result of the village annexation petition pending before the county board of commissioners.  The Michigan Supreme Court addressed the Act's breach of duty provision in Macomb County Prosecutor v Murphy, 464 Mich 149, 162-167; 627 NW2d 247 (2001).  In that case, a person simultaneously served as a township trustee and as a delinquent personal property tax coordinator for the county.  The township had the legal authority to contract with the county for collection of its delinquent personal property taxes by the county. 

After confirming that the Act applies to both public officers and public employment, the Court concluded that a breach of duty occurs when a public official holding two public positions cannot advance the interests of both positions simultaneously:

            We agree with the Court of Appeals that a breach of duty arises when a public official holding dual offices cannot protect, advance, or promote the interest of both offices simultaneously.  Public officers and employees owe a duty of loyalty to the public.  63C Am Jur 2d, Public Officers and Employees, 247, p 690.  "All public officers are agents, and their official powers are fiduciary.  They are trusted with public functions [for] the good of the public; to protect, advance and promote its interests . . . ."  People ex rel Plugger v Twp Bd of Overyssel, 11 Mich 222, 225 (1863) (opinion of Manning, J.).  [Macomb County Prosecutor v Murphy, 464 Mich at 157-162 and 164.] 

But there was no breach of duty in the case before the Court, since the two governmental entities had not entered into contractual negotiations:

            We conclude that defendant's positions are not inherently incompatible because only a potential breach of duty of public office arises from the ability of the township to contract with the county for the collection of its delinquent personal property taxes.  Under the circumstances of this case, defendant's holding of dual offices did not violate the incompatible offices act because the governmental entities never entered into contractual negotiations.  [Macomb County Prosecutor v Murphy, 464 Mich at 166-167.]


The Court stated that proposals to enter into contractual negotiations with another governmental entity do not require the vote of the board member who is an officer or employee of the other entity because such proposals in themselves, until accepted by the board that a contract be negotiated or approved by the board, involve only potential, rather than actual, incompatibility of offices on account of conflicting interests involving a breach of duty.  Macomb County Prosecutor v Murphy, 464 Mich at 164-165.  The focus of the Act is on the manner in which the public official actually performs the duties of public office.  Id., at 164.  The Court in Murphy expressly rejected the notion that a breach of duty exists merely because "'an issue arises in which one constituency's interests may conflict with the interests of a separate constituency represented by the official.'"  Id.  (Emphasis added.) 

Thus, to answer your question requires determining whether there are actual or potential conflicting interests between the village and the county with regard to the village council's annexation petition.  The annexation petition process under the General Law Village Act, specifically MCL 74.6, confers discretion on the county board of commissioners[2] to approve or reject the village's annexation petition, which must include the village's reasons for the proposed annexation:

Whenever the council of any village shall determine by resolution to alter the boundaries of such village, either by taking in lands and premises adjoining thereto or by taking out any lands and premises included in such village, or both, they shall petition the board of supervisors of the county in which such lands and premises affected thereby are situated to make such change . . . and shall set forth the reasons for the proposed change . . . .  At the time of presenting such petition all parties interested may appear before such board of supervisors and be heard touching the proposed boundaries of such village, and after such hearing and due consideration of such petition, it shall be the duty of the board of supervisors to order and determine as to whether the prayer contained in the petition or any part thereof shall be granted . . . .  [Emphasis added.]

 Turning to the facts involved in your request, the village council has filed its annexation petition with the county board of commissioners.  The board of commissioners is required by law to approve or reject the annexation in whole or in part.  In reaching that decision, the board has discretion to make a determination between competing considerations, which will involve accepting or rejecting the reasons given by the village in support of its annexation petition.   

OAG, 1985-1986, No 6283, p 42 (April 2, 1985), concluded that a member of a township zoning board of appeals may not simultaneously serve as a member of a board of education of a school district if a matter involving the school district comes before the township zoning board of appeals.  The opinion recognized that a school board member who was also on the township zoning board of appeals would, if called upon to decide a matter involving the school district, be placed "'in an antagonistic position by reason of his duty to the school district conflicting with his duty to serve impartially as a member of the board of appeals.'"  OAG No 6283, at p 43, quoting from OAG, 1961-1962, No 3621, p 257 (February 5, 1962). 

OAG, 1995-1996, No 6841, p 27 (March 30, 1995), concluded that the positions of township building inspector and a member of a board of education of a school district were incompatible when a question concerning the board of education comes before the building inspector in his capacity as the official responsible for enforcing the township zoning ordinance.  The opinion stated:

Here, a question involving the school district has come before the building inspector, who is responsible for enforcing the township zoning ordinance.  Clearly, the person in question has been placed in a position where his duty to the school district conflicts with his duty to impartially enforce the zoning ordinance as building inspector.  This person cannot protect, advance or promote the interests of both offices in this situation.  Thus, the two positions are incompatible, and the person in question must vacate one office.  [OAG No 6841, at p 28.] 

Both OAG No 6283 and OAG No 6841 are premised on the language from People ex rel Plugger v Overyssel Twp Bd, 11 Mich 222, 225 (1863), that all public officers have a fiduciary duty to promote the interests of the public entities they serve.  That is the same language quoted with approval by the Michigan Supreme Court in Macomb County Prosecutor v Murphy, 464 Mich at 164, in support of its conclusion "that a breach of duty arises when a public official holding dual offices cannot protect, advance, or promote the interest of both offices simultaneously."  As noted above, the Act applies to public positions occupied by both public officers and public employees.  Macomb County Prosecutor v Murphy, 464 Mich at 157-162.  

Unlike the situations in OAG No 6283 and OAG No 6841, here the county board is not being called upon to enforce a zoning code or other regulatory program affecting the involved municipalities.  No contract between the governmental units is at issue.  Nor have any other facts been presented to support the conclusion that the official cannot protect, advance, or promote the interests of both offices simultaneously. 

That the members of the county board of commissioners represent the interests of their constituents does not automatically bar the participation of a village official as a duly elected county commissioner.  Murphy, 464 Mich at 164.  It must be remembered that the powers of a county commission are exercised as a board and not individually.  Crain v Gibson, 73
Mich App 192, 200; 250 NW2d 792 (1977).  As the Supreme Court advised in Veldman v Grand Rapids, 275 Mich 100, 113; 265 NW 790 (1936):

If the defendants [the members of the city commission] acted officially upon a matter which by the law and the choice of their fellow-citizens was committed to their charge, it must be presumed they acted in good faith.  The law presumes public officials perform their duty.

It is also instructive to recall that the Court in Murphy interpreted the language of the Incompatible Public Offices Act as reflecting "a legislative intent to eschew the common-law focus on potential conflicts in favor of actual breaches of duty," characterizing the act as "in effect, a public employees enabling act."  Macomb County Prosecutor v Murphy, 464 Mich at 164-165, n 13 (emphasis in original).  As explained by the Court:

            This legislative choice encourages civic-minded individuals to engage in public service in as many capacities as they choose, without limiting their involvement through concerns about potential conflicts of interest.  The Legislature has focused on actual breaches, recognizing the value of enabling public employees to serve in public offices when they are off duty.  [Id.]

 It is my opinion, therefore, that the Incompatible Public Offices Act, MCL 15.181 et seq, does not prohibit a person from simultaneously serving as a member of the county board of commissioners and the head of a general law village's public works department, when that village's council has submitted an annexation petition to the county board of commissioners for review and approval under MCL 74.6, absent facts demonstrating that the person cannot protect, advance, or promote the interests of both offices simultaneously.

 MIKE COX
Attorney General

[1] See Local Government Law and Practice in Michigan, Michigan Municipal League, Volume 1, pp 1-20, 1-21 for a discussion of both home rule villages and general law villages.

[2] Under MCL 46.416, all statutory references to county boards of supervisors shall be deemed to mean county boards of commissioners.