Act 188 of 1954 (“Act 188”) is a statute that many townships use to finance many improvements using special assessments ranging from lak...Read More
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It may be valid under current law, but for practical reasons should be carefully considered. The statute governing whether an individual can hold two public offices is Michigan’s Incompatible Offices Act. See MCL 15.181. The Incompatible Offices Act establishes a three-part test to determine whether two positions are “incompatible.” If one position: (1) subordinates another position; (2) supervises another position; or (3) causes a breach of duty of public offices, then holding those two positions constitutes an incompatible office and an individual must step down from one of the positions to avoid the incompatibility issue. MCL 15.181(b).
The three-part test from the Incompatible Offices act is broad and requires a fact-intensive inquiry to determine whether two positions are incompatible. Previous opinions from Michigan’s Attorney General show that a zoning administrator and township trustee would most likely be incompatible offices because a township trustee is responsible for supervising the zoning administrator. See Michigan Attorney General Opinion 6839 (1995). In that opinion, the Attorney General explained how the zoning administrator is supervised by the township trustee as a member of the township board.
Despite the zoning administrator being supervised by the township trustee, in limited circumstances, an individual may be able to hold both positions. In 2015, Michigan’s Incompatible Offices Act was amended to allow more flexibility for townships with a population of less than 40,000 inhabitants. MCL 15.183(4)(c). The amendments allow township elected officials to render (for compensation) “other additional services for the unit of government” if the township has less than 40,000 residents. MCL 15.183(4)(c).
Whether serving as a zoning administrator constitutes “other additional services for the unit of government” has not been considered by the Michigan Attorney General. The Michigan Attorney General has opined that the exception allowing an official to perform “other additional services for the unit of government” is so broad that it allows individuals to serve as both village managers and village presidents. Michigan Attorney General Opinion No. 7295 (2017). Accordingly, given the current state of the law, there is a strong argument that such an employment arrangement is permissible.
Even though it may be permissible, there may be practical impacts for any specific township depending on communication and relationships between the township board members and the potential trustee hired as township zoning administrator. Accordingly, a township may have other concerns to contemplate.
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