County commissioners and a special type of conflict of interest called incompatible offices: Part 2

The Guide to Michigan County Government is a great source of detailed information about the structure, function, and services provided by counties in Michigan.

Part one of this article on incompatible offices primarily addressed situations involving a breach of duty. The statute also includes three specific standards for determining whether such an incompatibility exists. Those are: (1) when one office is subordinate to the other, (2) when an officeholder comes under the supervision of the same officeholder in the other agency, and (3) when the dual office holding leads to a breach of duty of the public office. 

Ken VerBurg, MSU professor emeritus talks more about these principles in the 2007 edition of his book, Guide to Michigan County Government

“When no statute refers to a particular situation, the three standards mentioned above are the standards by which questions of incompatible office holding are usually analyzed. Note, however, that the incompatibility of two offices does not have to be presumed because of a potential conflict. In certain instances the incompatibility may not occur until the board, for example, enters into a contract with the second agency. In that instance, the conflict does not occur until the contractual relation is being discussed and this conflict cannot be resolved by the officer’s offer to refrain from voting because that is a breach of duty of the public office. Accordingly, when the two units adopt the contract, the person should then resign one of the positions. 

What is the remedy in case a commissioner becomes involved in this kind of problem? The common law rule is that the person automatically vacates the first office and forgoes the pay of that office. Thus, if one wishes, he or she can take a chance by accepting a second office. But you should make sure that you want the second one rather than the first. Enforcement is not automatic, however. If the person in question refuses to give up one of the positions, the state attorney general or the county prosecutor may file an official complaint with the circuit court to get an order to end the dispute. Questions on in- compatible offices are posed occasionally to the attorney general and these opinions typically include a rationale that is useful in addressing other similar questions.” 

Michigan Attorney General opinions since 1963 are available for reading online and can be searched in several ways, depending on the year they were written. 

Watch for future Michigan State University Extension articles with more information about county government. Professor VerBurg’s book, Guide to Michigan County Government, Fourth Edition, is available in electronic form online on a CD or a USB drive with nearly 500 pages of detailed information about county government, with extensive footnotes to constitutional and statutory information. The update process is underway to be sure the information and statutory notations are current, with rollout of the Fifth Edition expected in fall 2016.

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