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You have asked whether a county commissioner from a charter township may also hold a seat on an ordinance writing committee for general law townships. The Incompatible Public Offices Act (the “Act”) prohibits a public officer from holding two or more incompatible offices at the same time. Under the Act, two public offices are incompatible if serving in both would result in the subordination or supervision of one public office to the other, or if holding either office would result in a breach of duty of the other. MCL 15.181(b).
It does not appear that the compatibility of these specific positions has been addressed; however, the Attorney General has offered several opinions regarding county commission positions. These opinions concluded that the Act prohibits an individual from simultaneously holding the offices of:
- County commissioner and board of review member in the same county, 2017 Mich. Op. Att'y Gen. No. 7297 (Aug. 31, 2017)
- County commissioner and township assessor, 1992 Mich. Op. Att'y Gen. No. 6737 (Oct. 28, 1992) and OAG 1979-1980, No. 5626 (Jan. 16, 1980)
- County commissioner and city treasurer, 1987, Mich. Op. Att'y Gen. No. 6418 (Jan. 13, 1987)
In each of these situations, the county commissioner’s public office was deemed to have served in a supervisory capacity over the local-level public office. For example, when analyzing the offices of county commissioner and board review member in the same county, both had an oversight role in the assessment process. The board of county commissioners made the final determination and was permitted to modify decisions made by the local board of review. In essence, this was a supervisory role over the township board of review. 2017 Mich. Op. Att’y Gen. No. 7297 (Aug. 31, 2017). Therefore, the offices were incompatible under the Act. MCL 15.181(b)(ii).
As indicated by your facts, you noted that the county commissioner serves on an ordinance writing committee with authority over general law townships but not charter townships; therefore, it does not include the township the county commissioner serves. Because the county, and therefore the county commissioner from a charter township, have no authority over the general law township position, there cannot be subordination or supervision, which distinguishes it from the Attorney General opinions that found the positions within the same county violated the Act.
Alternatively, offices may also be incompatible if an individual holds multiple positions with conflicting interests. A breach of duty results when a person holding multiple positions cannot protect, advance, or promote the interests of all offices simultaneously. For example, when two public bodies are parties to a contract, it may result in the individual being placed on both sides of the contract. Non contractual issues may also result in a breach of duty when the individual’s interests in, or duties to, one position may affect his or her action on behalf of the other position. However, the Michigan Supreme Court has clarified that holding multiple positions must result in an actual breach of duty; the existence of a potential breach of duty is insufficient to violate the Act. Macomb County Prosecuting Attorney v Murphy, 464 Mich 149 (2001).
Although the Attorney General opinions provide guidance on how to apply the Act, they are often highly fact dependent. Based on your facts as presented, it seems that the Act does not prohibit a person from simultaneously serving as the county commissioner for a charter township and a member of an ordinance writing committee for general law townships, unless there was a contractual relationship between the entities or some other situation arises in which the individual cannot advance the interests of both offices simultaneously.
However, if a situation arises that makes the positions incompatible because there are competing duties or interests that result in a breach of duty, the only remedy is that the individual must remove himself or herself from one of the offices. It is not sufficient for the individual, for example, to continue serving on the ordinance writing committee but refrain from writing or voting on ordinances if a conflict of interest exists.
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