Incompatible office: what does it mean and how does it differ from a conflict of interest?
Conflict of Interest and Incompatible Office are not the same thing. There are unique responses to each situation.
Often one hears about some public official having a conflict of interest and needing to remove themselves from any participation in the review of a case. Best practice is to announce the conflict publically and leave the meeting room.
Other times, one hears “incompatible office” and assumes it is the same thing as a “conflict of interest.” The two are, in fact, extremely different.
What is conflict of interest?
Conflict of interest is when a member of a public body – like a planning commission or zoning board of appeals—has:
- A financial interest in the application’s outcome;
- A relative that is the applicant (bylaws or rules of procedure should specify how close of a relationship); or
- Land in proximity to the location of the applicant (bylaws or rules of procedure should specify what distance constitutes a conflict).
What is incompatible office?
Incompatible office is something very different. An incompatible office is when someone holds two public positions and:
- One is subordinate to the other;
- One is supervisory of the other; or
- There is a contract between organizations for which both offices represent.
In Michigan statute, one cannot hold two offices at the same time that are not compatible with each other. One must resign from one of the two offices. Some prosecutors have taken the position that when one accepts the second office that automatically results in a resignation from the first of two incompatible offices.
The “Incompatible Office” Rule in Action
For example, let’s take the case of the position of zoning administrator that will be hired directly by a legislative body (township board, village council, city council, county board of commissioners). If one of the members of the legislative body is hired as the zoning administrator it could be an example of an incompatible office.
If the legislative body is responsible for hiring and firing, an annual performance review, and deciding if pay increases or disciplinary action are warranted for the zoning administrator it would be an incompatible office because the zoning administrator is subordinate to the legislative body. The zoning administrator is potentially voting on their own job, pay raise and disciplinary action. In Michigan, one cannot simply recuse oneself from that vote or discussion and, therefore, cannot hold both offices at the same time.
The same would be true if the one office is supervisory over the other or one is subordinate to the other.
The same would also be true if there is a contract between two organizations for which both offices represent. For example, if a legislative body has a contract with a school board about shared recreational facilities it would be an incompatible office for the same person to be on both the school board and the legislative body. The concern about that one person is: which side (school board or legislative body) is he or she representing when negotiating the contract, troubleshooting issues about the contract, or overseeing the operation of the contract. Again, the same person cannot hold both those offices at the same time. Conversely, if there is no such contract then the two positions would not be incompatible and someone could hold both offices.
There is a long history of court cases and opinions of Michigan attorneys general on when two offices are incompatible offices. A Michigan State University Extension land use educator can share more information about those.
Exceptions to the “Incompatible Office” Rule
The Incompatible Public Offices Act (MCL 15.181 et seq.) has many exceptions to this general rule. Exceptions include a public employee being on the governing board of an institution of higher education; a superintendent of one school district from being on the board of education of another school district; and employees of municipal government, school district, community college, county, being a member of a tax increment finance authority, downtown development authority, housing commission, and more; and other exceptions. Further exceptions exist for communities under 40,000 population, and where other statutes specifically authorize the option of liaisons or require liaisons between different boards.
For example, a planning commission shall have a member of the legislative body (sometimes more than one) as a member of the planning commission. In a county or township, one member of the zoning board of appeals shall also be a member of the county or township planning commission. In a city or village, one member of the zoning board of appeals may also be a member of the village or city planning commission.
Michigan State University Extension land use educators deliver various training programs on ethics, conflict of interest, incompatible office for planning and zoning, and are available to be presented in your community. Contact your local land use educator for more information.