Incompatible Office Considerations

Joel Gerring

By Joel Gerring, MASB Assistant Legal Counsel

DashBoard, Feb. 7, 2018

“Compatible” is a legal term applied to a combination of public offices that can be occupied simultaneously by one person without creating a conflict of interest. “Incompatible,” when applied to a combination of public offices, means that a conflict of interest would exist if one person held them at the same time. Public Act 566 of 1978 prohibits a person from holding incompatible public offices at the same time (MCL 15.181 et seq.).

In determining if an incompatible office situation exists, courts will examine the purpose and function of each position to determine whether the exercise of the powers of one office would prevent the proper fulfillment of the duties of the other by resulting in:

(1) the subordination of one public office to another;

(2) the supervision of one public office by another; or

(3) a breach of duty of public office.

For example, Michigan’s Attorney General has ruled that a school employee, such as a part-time athletic coach or school bus driver, may not serve as a member of the board of education of the district where he or she is employed. The rationale underlying this conclusion is that persons hired by a school district aren’t able to function as employees and serve on the board of education at the same time. An employee sitting as a member of the board in such a situation would have control over the terms of employment of his or her own position (see OAG No 6642 (Jan. 2, 1990)). In short, the subordinate and supervisory authority of the board rendered the office of board of education member and the position of employee within the same school system incompatible. For purposes of the act, the position of school employee is considered an “office.”

Additionally, the Attorney General has concluded that a subordinate and supervisory relationship results where:

(1) one office sets and approves the compensation of another office (OAG, No 6713 (Feb. 24, 1992));

(2) where one office has the power of appointment or removal over another office (OAG, No 6834 (Feb. 3, 1995)); or

(3) where one office reviews the accounts of the other public office (OAG, No 6713 (Feb. 24, 1992)).

The Attorney General’s interpretation regarding incompatibility is reinforced by an additional statute that regulates political activities by certain public employees (PA 169 of 1976). Section 3 of that act sets forth the conditions under which a public employee may be a candidate for election to a school board, stating: [A] Public employee of a … school district … who is elected to an office within that … school district shall resign or may be granted a leave of absence from his employment during his elected term (MCL 15.403).

In 1981, the Attorney General analyzed this provision as it affects school employees. A school district employee who’s elected to the board of education of the district in which he or she is an employee must resign his or her employment unless he or she is granted a leave of absence prior to assuming office on the board (OAG No 5863 (March 26, 1981)). As such, candidates for a school board position need not resign from their district employment, but once elected, they must choose one position or the other.

A “breach of duty” results when a person can’t protect, advance and promote the interests of both offices simultaneously. A breach of duty can result in any number of situations. It is well established that a breach of duty results, and two offices become incompatible, when a person is placed on opposite sides of a contract between two public bodies. Furthermore, an incompatibility can also arise by virtue of a noncontractual issue coming before one or both of the offices a person holds, if the two public bodies have competing interests on the issue. For example, if the city council considers a noncontractual matter involving or affecting the school district, or vice versa, a person holding the offices of city council trustee and member of the board of education would have competing interests and the holding of both offices would result in a breach of duty.

A public official can’t avoid an incompatibility by merely abstaining from any official actions. Abstention in those circumstances is itself a breach of duty. Rather, the official must vacate one of the incompatible offices.

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