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.
Occasionally one hears about public officials having a conflict of interest and needing to remove themselves from any participation in reviewing and deciding on an issue. Best practice is to announce the conflict publicly and leave the meeting room while the issue is discussed and decided.
Other times, one hears there is an 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 members of a public body are making decisions in their government office capacity and the outcomes of the decisions will also impact their:
- Personal finances
- Relatives/family (or employer/employees, business partner, etc.)
- Real property (due to proximity and effects on property value)
An example conflict of interest is a planning commission member who is in the situation of deciding a zoning case brought before the public body by the member’s brother (or neighbor). The Bylaws or rules of procedure should specify how close of a relationship constitutes a conflict of interest and what geographic distance constitutes a conflict, among other important distinctions.
What is an incompatible office?
Incompatible offices are very different. An incompatible office means someone holds two public positions and:
- One is subordinate to the other
- One is supervisory of the other
- There is a breach of duty of one public office resulting from the performance of the duties of the other public office
Under Michigan’s Incompatible Public Offices Act (MCL 15.181 et seq.), one cannot hold two offices at the same time that are incompatible with each other. One must resign from one of the two offices.
Incompatible Office in Action
Let’s take, for example, the case of the position of zoning administrator who will be hired directly by a legislative body (township board, village council, city council, or 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, annual performance reviews, 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/legislative body member is potentially voting on their own job performance, pay raise, or disciplinary action.
According to Michigan Attorney General Opinion 6083, July 7, 1982, the position of township manager is subordinate to the position of township supervisor because the manager is employed under MCL 41.75a (being part of the Revised Statutes of 1846, Chapter 16) and serves at the pleasure of the township board, of which the supervisor is a member. As MCL 41.75a applies to other employees of the township, the position of zoning administrator and the position of township supervisor are most likely incompatible as well. There is a long history of court cases and opinions of Michigan attorneys general on various incompatible public offices.
Often, it is a pending or existing contract between two public bodies that results in an incompatible office for an individual who serves on both public bodies. 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) are they representing when negotiating the contract, troubleshooting issues about the contract, or overseeing the operation of the contract? Or, put differently: Is there a breach of duty for one public office due to the obligation to perform the duty of the other office? Conversely, if there is no such contract, then the two positions would not be incompatible, and someone could hold both offices.
In Macomb County Prosecuting Attorney v Murphy (2001), the Michigan Supreme Court stated the legislative intent to restrict applicability of the Incompatible Public Offices Act to “situations in which the specified outcomes or consequences of a particular action actually occur.” The Court stated, “A breach of duty may occur in the future or that a potential conflict exits does not establish incompatible offices. The official’s performance of the duties of one of the offices must actually result in a breach of duty” (emphasis in original). The Court concluded that the act concentrates on the “manner in which the official actually performs the duties of the public office.”
However, citing the Michigan Court of Appeals case Contesti v. Attorney General (1987), the Attorney General stated, “A person cannot refrain from voting on a matter to avoid a breach of public duty or attempt through other less direct means to avoid the responsibilities that inhere in a given office” (Opinion 7125, February 20, 2003). Refraining from voting on certain matters does not cure incompatibility of offices. The appropriate remedy for incompatibility is to vacate one of the two offices. Again, the same person cannot hold both offices at the same time.
The Incompatible Public Offices Act has many exceptions, including a public employee serving on the governing board of an institution of higher education; a superintendent of one school district serving on the board of education of another school district; and employees of municipal government, school district, community college, county, serving as members of a tax increment finance authority, downtown development authority, housing commission, and more; and other exceptions. Further exceptions exist for communities with a population less than 40,000, and where other statutes specifically authorize or require liaisons or between different boards, such as ex officio members.
For example, under the Michigan Planning Enabling Act (MCL 125.3801 et seq.), one member of the township board shall serve as an ex officio member of the planning commission. Or, according to the Michigan Zoning Enabling Act (MCL 125.3101 et seq.), one member of the township or county zoning board of appeals shall be a member of the planning commission. In a city or village, the example ex officio roles are options and are not required by statute.
Both conflict of interest and incompatible office are issues to be avoided by public officials. They are not the same and it is important for officials to recognize the differences between the two. Understanding these two concepts allows individuals to take the necessary steps to protect themselves and their communities from both. A Michigan State University Extension table of Incompatible Offices in Planning and Zoning is a resource for further study. Also, an expert in community planning can share more information and deliver various training programs on ethics, conflict of interest, and incompatible office.