Michigan Advisory Opinions April 18, 1986: AGO 6355 (April 18, 1986)

AGO 6355.

You have requested my opinion on two questions, the first of which is:

May a person simultaneously hold the office of city commissioner and county commissioner?

MCL 15.182; MSA 15.1120(122), prohibits a public officer from holding two incompatible public offices at the same time. The Legislature has, in MCL 15.181(b); MSA 15.1120(121)(b), defined 'incompatible public offices' as:

'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.'

The office of city commissioner and the office of county commissioner are public offices within the purview of MCL 15.181 et seq; MSA 15.1120(121) et seq. MCL 15.181(e)(ii); MSA 15.1120(121)(e)(ii).

Review of the statutory and charter responsibilities of the two offices in question reveals that neither office is subordinate to or responsible for the supervision of the other. Therefore, the two offices are not incompatible under MCL 15.181(b)(i) or (ii); MSA 15.1120(121)(b)(i) or (ii).

The remaining ground for incompatibility of the offices of city commissioner and county commissioner under MCL 15.181 et seq; MSA 15.1120(121) et seq, would be if the simultaneous occupation of the offices results in the public officer's breach of duty to either office. MCL 15.181(b)(iii); MSA 15.1120(121)(b)(iii).

Cities and counties are statutorily empowered to enter into contractual agreements with each other. MCL 124.1 et seq; MSA 5.4081 et seq, and MCL 124.501 et seq; MSA 5.4088(1) et seq. At common law, the ability to contract with each other would, in and of itself, have been sufficient reason to declare the offices of city commissioner and county commissioner to be incompatible. OAG, 1967-1968, No 4658, p 317, 319-321 (October 31, 1968), concluded that the offices of city councilperson and county supervisor (now commissioner) were incompatible and could not be occupied simultaneously by the same person.

The common law, however, was altered by the enactment of MCL 15.181 et seq; MSA 15.1120(121) et seq. In analyzing the effect of MCL 15.181(b)(iii); MSA 15.1120(121)(b)(iii), on the common law, OAG, 1985-1986, No 6269, p ___ (January 29, 1985), concluded that:

'incompatibility arises when performance of the duties of the two offices results in a breach of duty of a public office. There is no incompatibility until the two public entities negotiate or enter into a contract with each other. OAG, 1979-1980, No 5626 . . . [p 537 (January 16, 1980)]; OAG, 1979-1980, No 5835, p 1131, 1132 (December 30, 1980).' (Emphasis in original.)

It should also be noted that a public officer may not avoid a breach of public duty by abstaining from participation in the negotiation, amendment, or approval of a contract. OAG, 1985-1986, No 6269. As noted in OAG, 1979-1980, No 5835, p 1131, 1132 (December 30, 1980), in the event an individual were to attempt to avoid incompatibility '[b]y refraining from participating in contract negotiation or contract approval, the individual holding both offices would not be performing his other duties in either office. This would constitute a breach of duty in contravention of 1978 PA 566, supra, Sec. 11b(iii) [MCL 15.181(b)(iii); MSA 15.1120(121)(b)(iii)].'

Thus, as concluded in OAG, 1979-1980, No 5626, p 537, 545 (January 16, 1980),

'a public official's abstention from the responsibilities of his or her office in order to avoid participating in the approval of both sides of an agreement between the two public entities which he or she serves is itself a breach of duty. Only vacation of one office will resolve the public official's dilemma.'

In answer to your first question, it is my opinion that the offices of city commissioner and county commissioner are compatible and may be held simultaneously by the same person, as long as the two governmental units do not negotiate or enter into a contract with each other.

Your second question is:

May a person's name appear on the same ballot, once as a candidate for the office of city commissioner and again as a nominee seeking his or her political party's nomination in a special primary election as its candidate for an upcoming county commissioner's election?

Answer to this question requires reference to the Michigan Election Law, MCL 168.1 et seq; MSA 6.1001 et seq. The Legislature has defined the term 'election' in MCL 168.2; MSA 6.1002, to mean and include

'any election and primary election at which the electors of the state or any subdivision thereof choose or nominate by ballot public officials . . ..'

There are no specific provisions of the Michigan Election Law which address the appearance of a candidate's name for different offices on the same 'ballot.' The Legislature, however, has addressed the circumstances under which a candidate may run for more than one office in MCL 168.558(2); MSA 6.1558(2), which provides, in part:

'If petitions or filing fees are filed by or in behalf of a candidate for more than one office, either national, state, county, city, village, township, or school district, the terms of which run concurrently or overlap, the candidate so filing, or in behalf of whom petitions or fees were so filed, shall select the one office to which his or her candidacy is restricted within 3 days after the last day for the filing of petitions or filing fees unless the petitions or filing fees are filed for 2 offices that are combined or for offices that are not incompatible. Failure to make the selection shall disqualify a candidate with respect to any office for which petitions or fees were so filed and the name of the candidate shall not be printed upon the ballot for those offices. A vote cast for that candidate at the primary or general election ensuing shall not be counted and shall be void.' (Emphasis added.)

Thus, MCL 168.558(2); MSA 6.1558(2), contemplates that an individual may run for more than one office. The statute provides specifically that a candidate may run for 'offices that are not incompatible.'

As indicated in the answer to your first question, the two offices would be incompatible if the two governmental units had entered into a contract which was operative.

In answer to your second question, it is my opinion that there is no prohibition against an individual seeking to run as a candidate for the office of city commissioner and as a nominee for the office of county commissioner at the same election unless the offices are incompatible by virtue of an operative contract between the two governmental units.

Frank J. Kelley

Attorney General