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 - http://www.ag.state.mi.us)

STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

Under the General Property Tax Act, 1893 PA 206, MCL 211.28(4), a city may provide for the size, composition, and manner of appointment of the city's board of review by charter, and a city's charter provision will govern such appointments unless the charter contravenes other provisions of law. MCL 117.36.

A city charter that provides for the appointment of the city assessor, mayor, and three city council members to the board of review conflicts with the Incompatible Public Offices Act, 1978 PA 566, MCL 15.181 et seq, and renders these positions incompatible because the office of board of review member ultimately supervises the work of the office of city assessor and because the charter makes the office of board of review member subordinate to, or under the supervision of, the offices of mayor or city council member.

If, however, a city has a population of less than 25,000 and the city's governing board authorizes the appointment of these public officers to the board of review, such officers may serve as board of review members regardless of the incompatibility. MCL 15.183(4)(c).

Opinion No. 7256

December 21, 2010

Honorable Raymond Basham

State Senator

The Capitol

Lansing, MI 48909-7536

You have asked two questions regarding the composition and appointment of members to the City of Ecorse's Board of Review.

Section 28 of the General Property Tax Act (GPTA), 1893 PA 206, MCL 211.28, provides for the creation of a board of review by each township, city or village. This board hears protests from property owners disputing the valuations and classifications established by local assessors for property tax purposes or claiming entitlement to an exemption from taxation. An appeal to the local board of review is a necessary prerequisite to a subsequent appeal by the protestor or the assessing city, village, or township to the Michigan Tax Tribunal. Tax Tribunal Act, 1973 PA 186, MCL 205.731 and 205.735a.

Your questions, taken together, essentially ask whether a city may, consistent with the GPTA, provide for the appointment of its board of review pursuant to a city charter provision, and if the city may do so, whether the charter provisions control the size, composition, and manner of appointment of the board.

With respect to city boards of review, section 28(4) of the GPTA, MCL 211.28(4), provides:

The size, composition, and manner of appointment of the board of review of a city may be prescribed by the charter of a city. In the absence of or in place of a charter provision, the governing body of the city, by ordinance, may establish the city board of review in the same manner and for the same purposes as provided by this section for townships. [Emphasis added.]

This section provides that a city may prescribe the manner of appointing its board of review by charter, and does not impose any restrictions on the board's size, composition, or manner of appointment.

Consistent with the GPTA, the City of Ecorse established the size, composition, and manner of appointment of its board of review by charter. Ecorse Charter, ch XII, Finance and Taxation, § 7, provides:

There shall be a Board of Review consisting of the Mayor, Assessor, and three (3) Councilmen, to be appointed by the City Council prior to the first of February each year, and whose term shall commence on the first day of March next following and shall continue for the term of one year. [Emphasis added.]

Because the GPTA authorizes cities to provide for the appointment of boards of review by charter, and imposes no limitations on who may serve, the Ecorse Charter provision controls the appointment of the City's Board of Review unless it contravenes any other provision of law.¹

Section 36 of the Home Rule City Act, 1909 PA 279, MCL 117.36, provides that "[n]o provision of any city charter shall conflict with or contravene the provisions of any general law of the state." See also Livonia Hotel, LLC v City of Livonia, 259 Mich App 116, 138; 673 NW2d 763 (2003) (holding that the state zoning statute prevailed over conflicting city charter provision). While the Ecorse Charter provision quoted above does not conflict with the GPTA, additional relevant statutes must be reviewed.²

The Incompatible Public Offices Act (IPOA or Act), 1978 PA 566, MCL 15.181 et seq, sets forth the general restriction against public officers or employees simultaneously holding incompatible offices. Specifically, the Act provides that "a public officer or public employee shall not hold 2 or more incompatible offices at the same time." MCL 15.182. Whether the offices of mayor, city council member, assessor, and board of review member are "incompatible" requires consideration of MCL 15.181(b), which 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.

The first step in determining whether these offices are incompatible requires establishing if the offices are "public offices held by a public official" within the meaning of MCL 15.181(b).

While the Legislature did not explicitly define the term "public official" in the Act, the Michigan Supreme Court in Macomb County Prosecuting Attorney v Murphy, 464 Mich 149, 157-163; 627 NW2d 247 (2001), concluded that "public offices held by a public official" include "positions of public employment." See also Wayne County Prosecutor v Kinney, 184 Mich App 681, 683; 458 NW2d 674, lv den 436 Mich 887 (1990), and OAG, 1979-1980, No 5626, p 537, 541 (January 16, 1980). Section 2 of the Act also evinces the applicability of the Act to public employees by stating "a public officer or public employee shall not hold 2 or more incompatible offices at the same time." MCL 15.182. With respect to the Ecorse Charter provision, the elected positions of mayor, city council member, and assessor³, and the appointed position of board of review member are all public officers or employees within the meaning of the IPOA. MCL 15.181(e)(ii).

Pursuant to section 29 of the GPTA, MCL 211.29, the purpose of a local board of review is to examine, review, and if necessary correct, a local unit of government's assessment roll that has been prepared by the local assessor pursuant to section 24 of the GPTA. MCL 211.24. The Ecorse Charter imposes the following specific duties upon its Board of Review:

The Board of Review shall have power, and it shall be its duty, to amend and correct any assessment or valuation, and to place upon the assessment roll of the city any taxable property, real or personal, not already assessed, and to strike from said rolls any property, real or personal, wrongfully thereon. Any person considering himself aggrieved by reason of any assessments may complain thereof either verbally or in writing to said Board and said Board shall review the assessment complained and of may alter and correct the same, and may in its discretion increase or decrease any assessment. . . . [Ecorse Charter, ch XII, Finance and Taxation, § 10, p 50.]

After the Board of Review finalizes the tax roll, it is delivered to the Ecorse City Council, which confirms the roll as submitted. (Ecorse Charter, ch XII, Finance and Taxation, § 11, p 50.)

As noted above, a local assessor prepares the tax roll for the relevant unit of government pursuant to section 24 of the GPTA. MCL 211.24. Under the Ecorse Charter, the assessor is charged with the following specific duties:

The City Assessor shall perform such duties in relation to assessing property and levying taxes in the City as are prescribed by this Charter. He is hereby authorized and required to perform the same duties that supervisors of townships under the general laws of the State are required to perform in relation to the assessing of property and levying of taxes for State, County and School purposes. He shall also perform all other duties which are prescribed by this Charter or may be required by ordinance or resolution of the Council.

It shall be the duty of the Assessor at least once each year to make a personal view of each lot or parcel of land and all buildings thereon and of all industrial, manufacturing or mercantile property in the City and to set a valuation thereon. He shall cause to be published notice of meetings of the Board of Review as required by this Charter.

He shall assist the Treasurer in the office of the Treasurer for the thirty (30) days next following the date when the State, County and City tax rolls are turned over to the Treasurer for collection for the purpose of mailing tax statements to taxpayers. He shall attend all meetings of the Board of Review. [Ecorse Charter, ch IV, Elective Officers, Salaries and Duties, § 13, p 12.]

The Charter provisions demonstrate that the office of City Assessor is subordinate to, or supervised by, the Board of Review to the extent the Board is expressly authorized to amend or correct property valuations, or make other changes to the tax roll as initially determined by the City Assessor. Indeed, as a Board of Review member, the City Assessor sits in judgment of his or her original determinations. Under these circumstances, the office of City Assessor for the City of Ecorse and member of the City of Ecorse Board of Review are incompatible within the meaning of MCL 15.181. See, e.g., OAG, 1983-1984, No 6126, p 41 (February 15, 1983) (concluding that offices of township treasurer and assessor for the same township are incompatible because the treasurer exercised supervisory power over the office of assessor).⁴

Turning to the office of mayor, the Ecorse Charter describes the duties of the mayor:

He shall preside at the meetings of the Council, shall be a member of the Council and have the right to vote on all questions to offer resolutions, introduce ordinances and exercise all other rights, powers and privileges of a members of said Council but shall have no power of veto. He shall from time to time give the Council information concerning affairs of the City and see that the laws relating to the City and the ordinances and regulations of the Council are enforced. [Ecorse Charter, ch IV, Elective Officers, Salaries and Duties, § 9, p 10.]

Under the Charter the Ecorse City Council, which includes the Mayor, establishes compensation for appointive officers such as the Board of Review (Ecorse Charter, ch VI, Administrative Departments, Appointive Officers, Powers and Duties, § 8, p 18), and may suspend or remove such officers. (Ecorse Charter, ch VII, General Provisions Relating to Officers, § 16, p 32.)

Accordingly, under the Charter, the Mayor, as a member of City Council, participates in his or her appointment to the Board of Review, as well as establishing his or her compensation as a Board member, and may potentially be called upon to participate in his or her removal from the Board. These circumstances render the offices of Mayor and Board of Review member incompatible because they result in the subordination or supervision of one office by another. See, e.g., OAG, 1981-1982, No 6030, p 534 (January 21, 1982) (offices of mayor and city assessor are incompatible where the mayor appoints the city assessor, and may also participate in removal proceedings); OAG No 6126, p 41 (offices of township treasurer and assessor for the same township are incompatible because the treasurer exercises supervisory power over the office of assessor, including the power of appointment and the determination of compensation); OAG, 1989-1990, No 6618, p 50 (February 13, 1989) (offices of township trustee and township assessor are incompatible).

The same analysis applies to the Ecorse City Council and the Board of Review. Under the Charter, City Council members participate in their own appointments to the Board of Review, as well as establishing their compensation as Board members, and may potentially be called upon to participate in their removal from the Board. Thus, it must be concluded that the IPOA's prohibitions against holding a public office that is subordinate to or supervised by another public office result in the positions of Ecorse City Council member being incompatible with membership on the Ecorse Board of Review.

Nonetheless, the prohibition on holding incompatible offices is not absolute. As noted above, section 2 of the IPOA states that "[e]xcept as provided in section 3" an individual shall not hold 2 or more incompatible offices at the same time. Section 3(4) of the IPOA provides that:

Section 2 does not do any of the following:

* * *

Limit the authority of the governing body of a city, village, township, or county having a population of less than 25,000 to authorize a public officer or public employee to perform, with or without compensation, other additional services for the unit of local government. [MCL 15.183(4)(c).]

The population of the City of Ecorse is less than 25,000.⁵ The "governing body" of the City of Ecorse is the City Council. Thus, pursuant to section 3(4)(c) of the IPOA, with the approval of the Ecorse City Council, the Assessor, the Mayor, and three City Council members may sit on the Ecorse Board of Review, despite those positions being otherwise "incompatible." See also OAG, 2001-2002, No 7105, p 86 (April 17, 2002).⁶ If the Ecorse City Council does not authorize these officers to sit on the Board of Review, such positions are incompatible.⁷

It is my opinion, therefore, that under the General Property Tax Act, 1893 PA 206, MCL 211.28(4), a city may provide for the size, composition, and manner of appointment of the city's board of review by charter, and a city's charter provision will govern such appointments unless the charter contravenes other provisions of law. MCL 117.36. A city charter that provides for the appointment of the city assessor, mayor, and three city council members to the board of review conflicts with the Incompatible Public Offices Act, 1978 PA 566, MCL 15.181 et seq, and renders these positions incompatible because the office of board of review ultimately supervises the work of the office of city assessor and because the charter makes the office of board of review member subordinate to, or under the supervision of, the offices of mayor or city council member. If, however, a city has a population of less than 25,000 and the city's governing
board authorizes the appointment of these public officers to the board of review, such officers may serve as board of review members regardless of the incompatibility. MCL 15.183(4)(c).

MIKE COX
Attorney General

¹   If a city does not appoint its board of review by charter, it may follow the procedures applicable to townships for establishing a board of review. MCL 211.28(4). The statute applicable to township boards of review restricts who may serve. MCL 211.28(1), provides, in part: Those electors of the township appointed by the township board shall constitute a board of review for the township. . . . A member of the township board is not eligible to serve on the board or to fill any vacancy. A spouse, mother, father, sister, brother, son, or daughter, including an adopted child, of the assessor is not eligible to serve on the board or to fill any vacancy. . . .

²   Your request also notes that the Ecorse Charter provides for meeting times of the Board of Review different from those specified in the GPTA. As noted above, applicable statutory provisions take precedence over conflicting charter provisions. But the GPTA does authorize the local governing body to adopt an ordinance or resolution establishing alternative meeting dates. MCL 211.30.

³   See Ecorse Charter, ch IV, Elective Officers, Salaries and Duties, § 1.

⁴   Notably, with respect to township boards of review, by operation of law the assessor for a township cannot serve as a member of a board of review, but rather serves as secretary for the board of review. See MCL 211.28(1), 41.2(4), 41.70, and 41.61(1).

⁵   MCL 8.3v requires that "[t]he population of the state or any political subdivision thereof shall be determined, unless otherwise specifically provided, on the basis of the latest federal decennial census preceding the time as of which the population is to be determined." The population of the City of Ecorse for the Year 2000 census was 11,229. See population statistics for 1990-2000 <www.michigan.gov/documents/PopByPlace_26771_7.pdf> (accessed November 9, 2010).

⁶   Your request does not include any facts raising an issue other than the question of incompatibility of offices. However, it is important to note MCL 15.183(6), which provides that section 3 of the IPOA "does not allow or sanction activity constituting conflict of interest prohibited by the constitution or laws of this state." (Emphasis added). See also Contesti v Attorney General, 164 Mich App 271, 281; 416 NW2d 410 (1987), quoting 63 Am Jur 2d, Public Officers and Employees, § 79, p 728 (explaining difference between incompatibility and conflict of interest). Thus, public officials or employees serving in incompatible positions under the IPOA, like the City of Ecorse officials, remain subject to general conflict of interest statutes and laws.

⁷   The incompatibility of these offices is tempered to some degree by the fact that the Mayor, City Council members, and Assessor are popularly elected under the Ecorse Charter. (Ecorse Charter, ch IV, Elective Officers, Salaries and Duties, § 1.) Moreover, decisions by the Ecorse Board of Review may be appealed to the Michigan Tax Tribunal. MCL 205.731 and 205.735a.