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What Is Michigan’s Incompatible Offices Act?

by | Apr 19, 2021 | Election Law |

 

In November 2020, Bedford Public Schools Board of Education member Todd Bruning won election to the Bedford Township Board as a trustee in Monroe County, Michigan.  His current term on the school board expires in 2022.  Despite winning the township board election, Mr. Bruning stated that he will not resign from his previous position and will serve in both elected part-time positions.  This situation has created controversy with some political opponents claiming that this dual-office holding breaks the law.  The issue is controlled by the Michigan Incompatible Public Offices Act of 1978 which spells out the standards for elected officials that may serve in multiple roles.  After months of trying to negotiate a solution, Prosecuting Attorney Michael G. Roehrig filed a lawsuit in the Monroe County 38th Circuit Court asking the judge to grant an injunction to prevent Mr. Bruning from continuing to hold both offices simultaneously.

The practice of “dual mandate”, or holding two offices at the same time, is approached inconsistently in the United States.  At the federal level, there are strict measures in place to ensure that the branches of government remain separate.  The United States Constitution prevents members of the U.S. House of Representatives or U.S. Senate from holding any positions in the executive branch.  U.S. Const. Art. I, §6, cl. 2.  Likewise, the U.S. President is limited to his salary as the chief executive and is barred from receiving “any other Emolument from the United States, or any of them.  U.S. Const. Art. II, §1, cl. 7.  The U.S. Constitution does not prohibit a person from serving in the federal government and also holding a separate elective office at the state and local level.  However, this maneuver may be barred under state law.

The Michigan Constitution of 1963 provides that “[n]o person holding any office, employment or position under the United States or this state or a political subdivision thereof, except notaries public and members of the armed forces reserve, may be a member of either house of the legislature.  Mich Const of 1963 art. IV, §8.  However, there is no hard and fast rule that says a single person absolutely cannot serve in more than one of thousands of elective positions at the local level ranging from city councils and township boards to road commissions and school boards.

In 1978, the Michigan Legislature passed the Incompatible Public Offices Act (“IPOA”) to encourage the faithful performance of official public duties by prohibiting dual mandates where conflicts of interest may arise.  Generally, “a public officer or public employee shall not hold 2 or more incompatible offices at the same time.”  MCL 15.182.  “Incompatible offices” means “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:”

  • “The subordination of 1 public office to another.” MCL 15.181(b)(i).
  • “The supervision of 1 public office by another.” MCL 15.181(b)(ii).
  • “A breach of duty of public office.” MCL 15.181(b)(iii).

This applies to both elected officials and public employees.  “Public employee” means “an employee of this state, an employee of a city, village, township, or county of this state, or an employee of a department, board, agency, institution, commission, authority, division, council, college, university, school district, intermediate school district, special district, or other public entity of this state or of a city, village, township, or county in this state, but does not include a person whose employment results from election or appointment.”  MCL 15.181(d).  Subordination or supervision creates a clear violation.  For example, a person cannot be both an elected member of a school board and also employed as a teacher at the same school district because the teaching position is subordinate to the board of education.  Since it is usually obvious whether an office is subordinate or supervised by another, the vast majority of IPOA violation claims usually involve a claim that there was a breach of duty.

There are clear exceptions to IPOA carved out in the statute that include, but are not limited to, the following:

  • The IPOA “does not prohibit a public officer’s or public employee’s appointment or election to, or membership on, a governing board of an institution of higher education. However, a public officer or public employee shall not be a member of governing boards of more than 1 institution of higher education simultaneously, and a public officer or public employee shall not be an employee and member of a governing board of an institution of higher education simultaneously.” MCL 15.183(1).
  • The IPOA “does not prohibit a member of a school board of 1 school district from being a superintendent of another school district.” MCL 15.183(2).
  • The IPOA “does not prohibit a public officer or public employee of a city, village, township, school district, community college district, or county from being appointed to and serving as a member of a board of a tax increment finance authority, a downtown development authority, a local development finance authority, a brownfield redevelopment authority, a housing commission, a neighborhood improvement authority, a water resource improvement tax increment finance authority, a historical neighborhood tax increment finance authority, a land bank fast track authority, or as a member of a principal shopping center board or business improvement zone board, or as an officer of a metropolitan district. MCL 15.183(3).
  • The IPOA does not prohibit public officers or public employees of a city, village, township, or county having a population of less than 40,000 from serving, with or without compensation, as an emergency medical services personnel, firefighter, police officer, fire chief, police chief or other similar positions or offices in that same local unit of government. MCL 15.183(4).

If violations of the IPOA are alleged, no private citizen has standing to bring a private cause of action.  Only the Michigan Attorney General or a local prosecuting attorney can bring a lawsuit under this act to the Ingham County Circuit Court or to the local circuit court in the county where the officeholder resides.  MCL 15.184.  This lawsuit can include a request for an injunction barring the officeholder from holding more than one of those offices, in addition to any other judicial relief available.

In Macomb County Prosecutor v Murphy, 464 Mich 149; 627 NW2d 247 (2001), the Michigan Supreme Court considered a matter where lower courts tried to interpret the IPOA.  Defendant served as both the delinquent personal property tax coordinator in the Macomb County Treasurer’s Office (a “public employee”) and as an elected member of the Harrison Township Board of Trustees, both in Macomb County.  The Michigan Supreme Court agreed that the IPOA applies to analyzing the defendant’s role as both a public elected official and an employee of the county where the elected office was located.  However, the justices concluded “that defendant’s positions are not inherently incompatible because only a potential breach of duty of public office arises from the ability of the township to contract with the county for the collection of its delinquent personal property taxes.”  They reversed the lower court’s decision that found incapability because they were focused on the possibility of a breach of the law or a conflict of interest.  In this case, it was possible that the township and the county could make a contract for the collection of delinquent personal property taxes, but (in reality), Harrison township had no existing contract with the county and was not negotiating a contract with it.  While a breach could exist in the future, that was not the case at this time.

  • “We conclude that defendant’s positions are not inherently incompatible because only a potential breach of duty of public office arises from the ability of the township to contract with the county for the collection of its delinquent personal property taxes. Under the circumstances of this case, defendant’s holding of dual offices did not violate the incompatible offices act because the governmental entities never entered into contractual negotiations. We therefore reverse the decision of the Court of Appeals and remand to the circuit court for entry of an order granting summary disposition for defendant.” Id at 166-167.

In Todd Bruning’s case, the circuit court will have to determine if holding a position both as a Bedford School board member and as a Bedford Township trustee amounts to “incompatible offices” under the IPOA.  There is no question that one office is not subordinate to the other.  However, the circuit court will have to determine if there is a breach of duty of public office because some conflict of interest may exist in the dealings between the school district and the township.  There is no bright line rule here and the ultimate decision will have to turn on the facts produced in court.

If you have further questions about election law or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.

 

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