County commissioners and a special type of conflict of interest called incompatible offices: Part 1

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

When we speak of a conflict of interest in public office, it typically refers to the office holder having a financial interest in a decision the public body is making. Another situation, sometimes referred to as a conflict of interest, is a situation where the office holder takes a second position that is in conflict with the first. To avoid confusion with financial conflicts of interest, we call these incompatible offices. This two part article describes these situations with some help from MSU professor emeritus Ken VerBurg, writing in the 2007 edition of his book, Guide to Michigan County Government

“Another type of conflict of interest in which a county commissioner can become involved is holding, at the same time, two public offices that are “incompatible.” In a few instances, the law specifically declares two offices to be incompatible, e.g., county commissioner and road commissioner. But the statutes do not contain a comprehensive matrix of all the possible incompatible positions. 

Instead a statute sets out the standards for determining when two offices are improperly held at the same time by the same person. The general principles are that it is improper for one person to hold two public offices (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. 

The breach of duty of public office refers to the inability of an officer to vote on an issue because of his/her holding incompatible offices. As an example, it would not be proper for a county commissioner also to be an assessor in the same county because ultimately that person, as a member of the county board, would have to vote on the equalization factor for the municipality’s assessments that, as assessor, the person established. Under the law, abstaining from voting on an issue that involves incompatible offices is not a remedy. The abstention from voting is a breach of duty. 

While this particular statute applies to all units of local government; it does make some general exceptions by not applying the standards for officials in counties, cities, townships, and villages with populations of less than 25,000. The statute does not forbid public officers and employees of such jurisdictions from serving, with or without pay, as an emergency medical services person, a firefighter (but not full-time, or as a fire chief, or a fire union negotiator), or in other capacities for the specific jurisdiction as long as other general conflict of interest provisions are not violated. This provision was adopted to help the smaller jurisdictions meet their volunteer and official personnel needs. It is also important to note that some statutes specifically permit a county commissioner to serve in a position even though it may otherwise not meet the standard of compatibility. In such instances, of course, the specific statute is controlling.” 

Part two of this article will discuss the three principles for determining whether an incompatible office situation exists in more detail. In addition, there are several written opinions of the Michigan Attorney General which address specific incompatible office situations. 

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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