Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED MAY 30, 2001
MACOMB COUNTY PROSECUTING ATTORNEY,
Plaintiff-Appellee,
v No. 114444
SHERRI MURPHY,
Defendant-Appellant.
____________________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
We granted leave in this case to consider whether
defendant violated the incompatible offices act, MCL 15.181 et
seq.; MSA 15.1120(121) et seq., by simultaneously holding
positions as the delinquent personal property tax coordinator
in the Macomb County treasurer’s office and as an elected
member of the Harrison Township Board of Trustees. On review
of the incompatible offices act as a whole, we conclude that
the phrase “public offices held by a public official,” MCL
15.181(b); MSA 15.1120(121)(b), encompasses positions of
public employment. However, 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. 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.
I. Factual Background and Procedural Posture
Defendant is an elected trustee of Harrison Township.
She is also the delinquent personal property tax coordinator
in the Macomb County treasurer’s office. Under MCL 211.56(3);
MSA 7.100(3), a township board of trustees and the board of
county commissioners, with the concurrence of the county
treasurer, may agree that the county treasurer will collect
the township’s delinquent personal property taxes. The
Harrison Township Board of Trustees considered such an
arrangement in March 1994. A trustee eventually moved that
the township continue to collect its delinquent taxes.
Defendant supported that motion. The motion carried.
The possibility of having the county treasurer collect
the township taxes was, however, raised again five months
later. A trustee requested additional information about the
revenue generated if the township were to collect its own
2
delinquent taxes. In light of this development, the board
requested plaintiff Macomb County Prosecuting Attorney’s
opinion whether defendant had a conflict of interest because
of her dual positions.
Plaintiff opined that defendant’s offices were “not
necessarily incompatible, but . . . will be deemed to be
incompatible if the township trustee is presented with a
situation in which he or she is required to vote on a proposal
to have the county collect delinquent personal property
taxes.” In this case, plaintiff concluded that even though
the board had already voted to continue collecting the taxes,
defendant’s offices were incompatible because the board was
still exploring the possibility of entering into an agreement
with the county. Defendant declined to follow plaintiff’s
suggestion that she resign from one of her positions.
Plaintiff then sought a declaratory ruling that defendant
had violated the incompatible offices act by breaching a duty
of public office. The trial court granted summary disposition
for plaintiff under MCR 2.116(C)(10). The court concluded
that defendant’s positions were incompatible offices because
the board of trustees had considered the question whether the
county treasurer should collect delinquent taxes and
defendant’s vote affected her interest as tax coordinator.
The trial court directed that defendant vacate one of the
positions. The court denied defendant’s motion for
3
reconsideration, but stayed enforcement of its order pending
appeal.
The Court of Appeals granted defendant’s delayed
application for leave to appeal and affirmed.1 The Court
concluded that a breach of duty arises when a public official
“‘cannot protect, advance, or promote the interest of both
offices simultaneously.’” 233 Mich App 381, quoting OAG,
1997-1998, No 6931, p 5 (February 3, 1997). The Court further
reasoned that a breach occurs when an “issue arises in which
one constituency’s interests may conflict with the interests
of a separate constituency represented by the official.” Id.
at 382. It rejected defendant’s arguments that the extent of
conflict between her positions was minimal and that a question
of fact existed regarding how a township-county agreement
would affect her position as tax coordinator. The Court also
concluded that the trial court properly found that defendant
voted on a proposal to have the county collect the township
taxes. The Court reasoned that defendant implicitly voted not
to enter into an agreement with the county when she voted in
favor of the township collecting its own taxes.2
1
233 Mich App 372; 592 NW2d 745 (1999).
2
Defendant additionally argued that the trial court
erred in denying her motion to disqualify plaintiff because of
a conflict of interest. The Court of Appeals affirmed the
trial court’s ruling. Defendant does not challenge that
portion of the Court of Appeals decision.
4
This Court granted defendant’s application for leave to
appeal. 462 Mich 854 (2000).
II. Discussion
The question presented is whether defendant violated the
incompatible offices act by simultaneously holding positions
as the delinquent personal property tax coordinator in the
Macomb County treasurer’s office and as an elected member of
the Harrison Township Board of Trustees. 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.
A. The Incompatible Offices Act
The incompatible offices act3, at MCL 15.182; MSA
15.1120(122), contains the general prohibition against holding
incompatible offices. It provides that “[e]xcept as provided
in [MCL 15.183; MSA 15.1120(123)], a public officer or public
employee shall not hold 2 or more incompatible offices at the
same time.”4
3
The Legislature enacted the incompatible offices act in
1978, apparently in response to a 1978 opinion of the Attorney
General that the positions of public school superintendent and
state university board member were incompatible offices under
the common law. House Legislative Analysis, HB 6699, January
22, 1979.
4
Under MCL 15.181(d); MSA 15.1120(121)(d), a “public
employee” is
(continued...)
5
The Legislature defined the phrase “incompatible offices”
for purposes of the act. MCL 151.181(b); MSA 15.1120(121)(b)
provides:
“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:
(i) The subordination of 1 public office to
another.
(ii) The supervision of 1 public office by
4
(...continued)
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.
A “public officer,” in contrast, is
a person who is elected or appointed to any of the
following:
(i) An office established by the state
constitution of 1963.
(ii) A public office of a city, village,
township, or county in this state.
(iii) 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 a city,
village, township, or county in this state. [MCL
15.181(e); MSA 15.1120(121)(e).]
6
another.
(iii) A breach of duty of public office.
The Legislature also created exceptions to the general
prohibition on holding incompatible offices. MCL 15.183; MSA
15.1120(123)5 now generally allows public officers and
5
MCL 15.183; MSA 15.1120(123) provides:
(1) Section 2 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.
(2) Section 2 does not prohibit a member of a
school board of 1 school district from being a
superintendent of schools of another school
district.
(3) Section 2 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 the board of a tax increment
finance authority established pursuant to the tax
increment finance authority act, Act No. 450 of the
Public Acts of 1980, being sections 125.1801 to
125.1830 of the Michigan Compiled Laws, a downtown
development authority established pursuant to Act
No. 197 of the Public Acts of 1975, being sections
125.1651 to 125.1681 of the Michigan Compiled Laws,
or a local development finance authority
established pursuant to the local development
financing act, Act No. 281 of the Public Acts of
1986, being sections 125.2151 to 125.2174 of the
Michigan Compiled Laws.
(4) Section 2 does not do any of the
(continued...)
7
5
(...continued)
following:
(a) Prohibit public officers or public
employees of a city, village, township, or county
having a population of less than 25,000 from
serving, with or without compensation, as emergency
medical services personnel as defined in section
20904 of the pubic health code, Act No. 368 of the
Public Acts of 1978, being section 333.20904 of the
Michigan Compiled Laws.
(b) Prohibit public officers or public
employees of a city, village, township, or county
having a population of less than 25,000 from
serving, with or without compensation, as a
firefighter in that city, village, township, or
county if that firefighter is not any of the
following:
(i) A full-time firefighter.
(ii) A fire chief.
(iii) A person who negotiates with the city,
village, township, or county on behalf of the
firefighters.
(c) Limit the authority of the governing body
of a city, village, township, or county having a
population of less than 25,000 to authorize a
public officer or public employee to perform, with
or without compensation, other additional services
for the unit of local government.
(5) This section does not relieve a person
from otherwise meeting statutory or constitutional
qualifications for eligibility to, or the continued
holding of, a public office.
(6) This section does not apply to allow or
sanction activity constituting conflict of interest
prohibited by the constitution or laws of this
state.
(7) This section does not allow or sanction
(continued...)
8
employees to serve on boards of institutions of higher
education and permits a school superintendent to serve as a
member of a school board of another district. The statute
also allows public officers and employees of local units of
government to serve as members of boards of tax increment
finance authorities, downtown development authorities, and
local development finance authorities. Finally, the statute
generally allows public officers and employees of units of
local government having small populations to serve as
emergency medical services personnel, firefighters, and
perform other services for that unit of government.
The act does not create a private cause of action. MCL
15.184; MSA 15.1120(124). Rather, it grants the Attorney
General and county prosecuting attorneys the authority to
apply to the circuit court “for injunctive or other
appropriate judicial relief or remedy.” Id. A violation of
the act does not render an action of a public officer or
public employee absolutely void. MCL 15.185; MSA
15.1120(125). Instead, the decision to void an action lies
within the discretion of the circuit court. Id.
5
(...continued)
specific actions taken in the course of performance
of duties as a public official or as a member of a
governing body of an institution of higher
education that would result in a breach of duty as
a public officer or board member.
9
B. Public Offices Held By A Public Official
We reject defendant’s initial argument6 that her
positions are not “incompatible offices” because her position
as delinquent personal property tax coordinator is not a
“public office.” The question is one of statutory
construction, which we review de novo. The Herald Co v Bay
City, 463 Mich 111, 117; 614 NW2d 873 (2000). Our task is
made difficult by the Legislature’s inartful draftsmanship.
In particular, the Legislature used the undefined term “public
official” in defining the phrase “incompatible offices”
instead of the defined terms “public officer” and “public
employee.” Construing the act as a whole, however, we
conclude that the phrase “public offices held by a public
official” encompasses public employment.
In considering a question of statutory construction, this
Court begins by examining the language of the statute. Sun
Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119
(1999). We read the statutory language in context to
determine whether ambiguity exists. Id. at 237; see Consumers
Power Co v Public Service Comm, 460 Mich 148, 163, n 10; 596
NW2d 126 (1999). If the language is unambiguous, judicial
6
This issue is not properly preserved because defendant
first raised it in her application for leave to appeal to this
Court. See Kratze v Independent Order of Oddfellows, 442 Mich
136, 142; 500 NW2d 115 (1993). We address it nonetheless in
the interest of completeness. See Blackwell v Citizens Ins
Co, 457 Mich 662, 672; 579 NW2d 889 (1998).
10
construction is precluded. Frankenmuth Mut Ins Co v Marlette
Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). We
enforce an unambiguous statute as written. Sun Valley Foods,
supra at 236. Where ambiguity exists, however, this Court
seeks to effectuate the Legislature’s intent through a
reasonable construction, considering the purpose of the
statute and the object sought to be accomplished. Frankenmuth
Mut Ins, supra at 515.
The statute involved in this case defines the phrase
“incompatible offices” as “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”
the subordination of one public office to another, the
supervision of one public office by another, or a breach of
duty of public office. MCL 151.181(b); MSA 15.1120(121)(b).
We construe the undefined terms “public office” and
“public official” according to the common usage of the
language. Consumers Power, supra at 163. The dictionary
definitions of the words “public,” “official,” and “officer”
suggest that the terms “public official” and “public officer”
are synonymous.7 Words, however, are given meaning by context
7
This Court often consults dictionary definitions to
ascertain the generally accepted meaning of words. Consumers
Power, supra at 163, n 10. Random House Webster’s College
Dictionary, p 1091, defines the word “public” as meaning “of,
pertaining to, or being in the service of a community or
(continued...)
11
or setting. Id. at 163, n 10. In defining the phrase
“incompatible offices,” the Legislature used the term “public
official,” rather than the term it defined in the
statute—“public officer.” The Legislature’s use of this
undefined term when it could have easily employed the defined
term suggests that the terms are not synonymous for purposes
of this statute. See 82 CJS, Statutes, § 310, pp 400-401. We
therefore conclude that the statutory language “public offices
held by a public official” is ambiguous.
To resolve this ambiguity, we examine the other
provisions of the act to ascertain whether the Legislature
intended to include positions of public employment within the
prohibition on incompatible offices. We construe an act as a
7
(...continued)
nation.” That dictionary includes the following among its
definitions of “office”:
1. a place where business is conducted. . . .
4. the staff that works in a place of business.
5. a position of duty, trust, or authority; the
office of president. 6. employment or position as
an official: to seek office. . . . [Id. at 939,
emphasis in original.]
It defines the word “official” as follows:
n. 1. a person appointed or elected to an
office or charged with certain duties. –adj. 2. of
or pertaining to an office or position of duty,
trust, or authority: official powers. 3. appointed,
authorized, or approved by a government or
organization. 4. holding office. 5. public and
formal; ceremonial. [Id, emphasis in original.]
12
whole to harmonize its provisions and carry out the purpose of
the Legislature. Farrington v Total Petroleum, Inc, 442 Mich
201, 209; 501 NW2d 76 (1993); Gusler v Fairview Tubular
Products, 412 Mich 270, 291; 315 NW2d 388 (1981), reh gtd 414
Mich 1102 (1982), app dis 414 Mich 1102 (1983). “[T]he
interpretation to be given to a particular word in one section
[is] arrived at after due consideration of every other section
so as to produce, if possible, a harmonious and consistent
enactment as a whole.” Grand Rapids v Crocker, 219 Mich 178,
182-183; 189 NW 221 (1922).
We conclude that §§ 2 and 3 of the incompatible offices
act evince a legislative intent to include positions of public
employment within the scope of the act. MCL 15.182; MSA
15.1120(122) provides that “a public officer or public
employee shall not hold 2 or more incompatible offices at the
same time.” The section prohibits particular individuals from
holding two or more incompatible offices at the same time.
The Legislature could have simply omitted any reference to
public employees if it intended that the prohibition apply
only to positions held by public officers. The statute would
have provided that “a public officer shall not hold 2 or more
incompatible offices at the same time.” Under this alternate
language, a public employee would not have been prohibited
from holding one public office because the employee would not
become a “public officer” until elected or appointed to the
13
first office. The employee would then only hold one public
office, not two. Accordingly, on review of § 2 of the act, we
conclude that the Legislature’s inclusion of public employees
within the prohibition evinces an intent that positions of
public employment are “public offices held by a public
official.”8
The exceptions contained in the act, MCL 15.183; MSA
15.1120(123), similarly reveal a legislative intent that
positions of public employment fall within the scope of the
act.
Exceptions (1), (3) and (4) expressly apply to public
officers or public employees. Moreover, the prefatory phrase
of those exceptions (“Section 2 does not . . .”) signals that
the prohibition contained in § 2 generally applies to both
public officers and public employees. If the prohibition did
not apply to public employees, no need would exist to include
public employees within the exception.
On review of the statute as a whole, we thus conclude
8
The Legislature’s inclusion of public employees within
the scope of the prohibition comported with the Attorney
General’s historical approach to common-law incompatibility.
In OAG, 1963-1964, No. 4309, p 459 (September 11, 1964), the
Attorney General opined that the common-law rule against
incompatibility extended to public employment or position.
The Attorney General reiterated that conclusion in OAG, 1967
1968, No. 4620, p 278, 279 (August 7, 1968), stating that
“[t]he rule of incompatibility has been extended to public
employment where the duties of the public employment and the
public office are incompatible so that they may not be
simultaneously exercised by the same person.”
14
that the phrase “public offices held by a public official”
encompasses positions of public employment. Although the
Legislature could have evinced its intent in clearer terms, we
join the Attorney General9 and the Court of Appeals10 in
adopting this reasonable construction of the statutory
language because it best furthers the Legislature’s intent, as
reflected in the other provisions of the act.11 We therefore
conclude that defendant’s positions as delinquent property tax
coordinator and township trustee both are “public offices held
by a public official” for purposes of the incompatible offices
act. We thus turn to the question whether defendant’s
9
OAG, 1979-1980, No 5626, p 537, 541, (January 16,
1980).
10
Wayne Co Prosecutor v Kinney, 184 Mich App 681, 683;
458 NW2d 674 (1990).
11
Our construction of the statutory language is also
consistent with the words chosen by the Legislature in
amending the act. The Legislature has amended the
incompatible offices act three times. 1984 PA 72; 1992 PA 10;
1994 PA 317. The 1984 amendment added an exception that
allows public officers and employees of a city, school
district, community college district or county to serve as a
member of the board of tax increment finance authority. The
1992 amendment extended that exception to membership on
downtown development authorities and local development finance
authorities. The 1992 amendment also added an exception for
public officers and public employees of local units of
government having populations less than 25,000. The 1994
amendment made stylistic changes and extended the exception
for development and finance authorities to employees and
officers of villages and townships. As with the exceptions
contained in the original act, these exceptions use language
that suggests that public employment constitutes a public
office for purposes of the prohibition on holding incompatible
offices.
15
performance of the duties of one of the offices resulted in
one of the three situations set forth in MCL 151.181(b); MSA
15.1120(121)(b).
C. Breach of Duty of Public Office
The statute defines “incompatible offices” as “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” the subordination of one public office
to another, the supervision of one public office by another,
or “[a] breach of duty of public office.” MCL 151.181(b); MSA
15.1120(121)(b). The parties agree that this case does not
involve the first two prohibited situations. We therefore
limit our review to determining whether defendant’s
performance of her duties resulted in a breach of duty of
public office. 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 statute, incompatibility exists only when the
performance of the duties of one of the public offices
“results in” one of the three prohibited situations. By using
the phrase “results in,” the Legislature clearly restricted
application of the statutory bar to situations in which the
specified outcomes or consequences of a particular action
16
actually occur.12 That a breach of duty may occur in the
future or that a potential conflict exists 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.
The Attorney General recognized this limitation in 1979
1980 OAG No 5626, pp 537-542 (January 16, 1980). The Attorney
General explained:
[I]n many situations the public official may
be able to perform the functions of two public
offices without breaching a duty of either office
by simply not performing a function which may
constitute a breach of duty.
By way of illustration, under the common law
the authority of two public entities to contract
with each other would prohibit the same person from
serving both in positions of influence in
determining whether to approve, amend or implement
the contract since the person could not give
complete loyalty to one entity without some
sacrifice of loyalty to the other. This would be
true even if the two public entities had not
contracted with each other in the past or
contemplated doing so in the foreseeable future.
It was the potential for conflict which was
determinative, even though no actual conflict of
duties has occurred. . . .
Where, however, incompatibility arises only
when the performance of the duties of the two
offices results in a breach of duty of a public
office, there is not incompatibility until the two
public entities actually enter into contractual
12
Random House Webster’s College Dictionary, p 1148,
defines the verb “result” as “1. to arise or proceed as a
consequence from actions, circumstances, premises, etc.; be
the outcome. 2. to terminate or end in a specified manner or
thing: to result in failure.”
17
negotiations with each other. Also, in such cases,
the public officer or employee may avoid breaching
his or her duty of loyalty by abstaining from
participating in the consideration of the contract.
We agree with the Court of Appeals that a breach of duty
arises when a public official holding dual offices cannot
protect, advance, or promote the interest of both offices
simultaneously. Public officers and employees owe a duty of
loyalty to the public. 63C Am Jur 2d, Public Officers and
Employees, § 247, p 690. “All public officers are agents, and
their official powers are fiduciary. They are trusted with
public functions of the good of the public; to protect,
advance and promote its interests . . . .” People ex rel
Plugger v Twp Bd of Overyssel, 11 Mich 222, 225 (1863)
(opinion of Manning, J.).
The Court of Appeals, however, erroneously held that a
breach of duty exists when “an issue arises in which one
constituency’s interests may conflict with the interests of a
separate constituency represented by the official.” 233 Mich
App 382. In so concluding, the Court failed to recognize that
the statute focuses on the manner in which the official
actually performs the duties of public office. The Court thus
disregarded the statutory language requiring an actual breach
of duty.13
13
The dissent would “focus” the breach of duty inquiry
beyond contract negotiations or contract formation. The
(continued...)
18
In this case, the circuit court erred in granting summary
13
(...continued)
dissent asserts that contract negotiations and formation are
merely examples of situations where conflicts of interest and
breaches of duty may occur. The dissent concedes that an
actual, not potential, conflict of interest must exist. Slip
op at 6. It finds nothing in the statutory language of the act
that justifies, much less compels, the contract-or-negotiation
limitation on the breach of duty inquiry, and thus the inquiry
must transcend that artificial barrier.
The dissent’s interpretation of the act is an invitation
for political mischief. If the act reaches potential
conflicts of interest, the likelihood of political shenanigans
escalates. For example, a township board member could compel
the removal of another board member who is also an employee of
a public university by forcing a vote on a proposal that the
board consider entering into a contract with the university
for the study of grass diseases around the township hall. The
dissent would hold that a mere proposal to consider entering
into negotiations for such a contract raises a potential
conflict of interest requiring that board member to choose
which position to abandon.
On the contrary, the statutory language defining
“incompatible offices” as offices that, “when the official is
performing the duties of . . . office . . . results in . . .
(iii) a breach of duty” reflects a legislative intent to
eschew the common-law focus on potential conflicts in favor of
actual breaches of duty. This legislative choice encourages
civic-minded individuals to engage in public service in as
many capacities as they choose, without limiting their
involvement through concerns about potential conflicts of
interest. The Legislature has focused on actual breaches,
recognizing the value of enabling public employees to serve in
public offices when they are off duty. The act is, in effect,
a public employees enabling act. Thus, our interpretation is
consistent with the plain language of the statute.
The dissent asserts that defendant’s vote constitutes a
breach of duty even if the contract-or-negotiation limitation
is valid, characterizing the vote essentially as a contract or
negotiation decision. We reject the dissent’s
characterization of defendant’s preliminary vote as a
negotiation-or-contract decision.
19
disposition for plaintiff under MCR 2.116(C)(10).14 The
township and the county unquestionably may contract for the
collection of delinquent personal property taxes. MCL
211.56(3); MSA 7.100(3). Defendant coordinates the division
of the county treasurer’s office that handles day-to-day
collection matters. Although defendant potentially could be
placed at both ends of a contract between the county and a
local unit of government, the record reflects that Harrison
Township had no existing contract with the county and was not
negotiating a contract with it.
Under these circumstances, no incompatibility exists
between defendant’s positions until the public entities
actually enter into contractual negotiations. A public
official in defendant’s position may avoid breaching the duty
of loyalty by not participating in the preliminary
consideration of a possible agreement with the county.15 The
14
In reviewing a motion for summary disposition under MCR
2.116(C)(10), the trial court considers the documentary
evidence submitted by the parties in a light most favorable to
the party opposing the motion. Smith v Globe Life Ins Co, 460
Mich 446, 454; 597 NW2d 28 (1999). The trial court may grant
the motion if the documentary evidence creates no genuine
issue of material fact for trial and the moving party is
entitled to judgment as a matter of law. Id. at 454-455. We
review de novo the trial court’s ruling on a motion for
summary disposition. Id. at 454.
15
Defendant should have abstained from voting on the
motion that the township continue to collect its delinquent
personal property taxes. By voting on the motion, defendant
breached a duty of loyalty to Macomb County. We do not,
(continued...)
20
circuit court therefore erred in granting summary disposition
for plaintiff. In light of the absence of any genuine issue
of material fact, the court should have granted summary
disposition for defendant under MCR 2.116(I)(2). Accordingly,
we remand to the circuit court for entry of an order granting
summary disposition for defendant.
III. Conclusion
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,
15
(...continued)
however, view this action as necessitating that defendant
vacate one of her positions because the township never
negotiated with the county and has not entered into an
agreement with the county. Under these circumstances, the
circuit court had discretion whether to void the defendant’s
action in voting on the motion. MCL 15.185; MSA 15.1120(125).
In light of the passage of time and the absence of any
indication in the record that defendant cast the deciding
vote, we conclude that the circuit court should not void
defendant’s action.
The dissent asserts that if the contract-or-negotiation
limitation is invalid, the vote manifests an actual conflict
of interest and thus a violation of the incompatible offices
act (part II). We decline to characterize defendant’s vote as
a negotiation-or-contract decision. Moreover, although MCL
211.56(3); MSA 7.100 allows a county treasurer to reimburse
itself for the costs of collecting the delinquent taxes, and
to transfer to the county’s general fund any funds exceeding
the costs of collection, the record in this case contains no
proof the Macomb County Treasurer’s best interest was to
contract with the township.
21
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.
TAYLOR , YOUNG , and MARKMAN , JJ., concurred with CORRIGAN , C.J.
22
S T A T E O F M I C H I G A N
SUPREME COURT
MACOMB COUNTY PROSECUTING ATTORNEY,
Plaintiff-Appellee,
v No. 114444
SHERRI MURPHY,
Defendant-Appellant.
___________________________________
CAVANAGH, J. (concurring in part and dissenting in part).
I agree with the majority that the phrase “public offices
held by a public official” encompasses positions of public
employment. Also, I agree that the defendant’s positions as
delinquent property tax coordinator and township trustee both
constitute “public offices held by a public official” as
defined in the incompatible offices act (IOA), MCL 15.181(b);
MSA 15.1120(121)(b). Therefore, I join parts II (A) and II
(B) of the majority opinion. However, I disagree with the
majority’s conclusion that the defendant’s holding of dual
offices did not violate the IOA. Rather, I agree with the
courts below that the defendant’s offices were impermissibly
incompatible, and would affirm summary disposition in favor of
the plaintiff. Therefore, I respectfully dissent from part II
(C) and the result of the majority opinion.
I
Section (2) of the incompatible public offices act
prohibits a public officer or public employee from holding two
or more incompatible offices simultaneously. MCL 15.182; MSA
15.1120(122). “Incompatible public offices” are defined at
MCL 15.181(b); MSA 15.1120(121)(b) as follows:
“Incompatible offices” mean 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:
(i) The subordination of one public office to
another.
(ii) The supervision of one public office by
another.
(iii) A breach of duty of public office.
Only subsection (iii) is presently at issue.
Specifically, we are faced with whether a violation of the IOA
occurred when the defendant, in her capacity as township
trustee, chose to vote in favor of a motion to have the
township continue to collect its own taxes.
The majority holds that the defendant did not breach a
duty of public office by voting in favor of allowing the
township to continue collecting its own taxes because the vote
2
did not result in contractual negotiations or create a
contractual relationship between the county and the township.
The majority’s position springs from 1979-1980 OAG No 5626,
537 (January 16, 1980), in which the Attorney General
distinguished the common law from the IOA. According to the
Attorney General, the common law prohibited a single person
from holding dual positions of influence with public entities
that had authority to contract with one another, whereas the
IOA finds incompatibility only when the performance of the
duties of the offices results in a breach of duty of public
office. The primary distinction, the Attorney General opined,
is that the common law focused on the offices themselves,
while the IOA focuses on the officer’s actions. As such, the
Attorney General reasoned that incompatibility does not arise
until the two public entities actually enter into contractual
negotiations with each other. Also, the Attorney General
noted that, in such cases, the public officer can avoid
breaching the duty of loyalty by abstaining from consideration
of the contract.
I cannot agree with the majority that the statutory
violation in this case arose merely from the fact that the
township and the county had the ability to contract with one
another. Further, I disagree with 1979-1980 OAG No 5626, 537
(January 16, 1980), to the extent that it implies that, in
3
cases involving an officer who holds positions with two
entities that have the ability to contract with one another,
the performance of an officer’s duties can only result in a
breach at the point at which two entities enter into contract
negotiations with each other. Nowhere does the IOA provide
that public offices will be incompatible only when a party
holding the public offices is placed on the competing ends of
a contract or contract negotiations. The focus is instead on
whether a duty has been breached.
Public officials are charged with a variety of duties,
the breach of which may potentially result in an IOA
violation. Though a public official’s decision to participate
in contract negotiations is one example of a situation where
a breach of duty of public office may arise, the statutory
language simply does not support the assertion that it is the
only example.
Even assuming that subsection (iii) supports a finding of
incompatibility only when an officer’s performance of his
duties bears upon the competing entities’ abilities to
contract with one another, the majority fails to recognize
that a vote to decide whether the township should be allowed
to continue collecting its own taxes is a decision against
entering a contract to have someone else collect taxes.
Though the vote in question did not explicitly mention the
4
possibility that the township could alternatively enter into
a contract allowing Macomb County to collect taxes, the result
of the vote was the same as if the question had been “should
the township collect its own taxes or should the township
contract with Macomb County?” In either case, the vote
foreclosed the possibility that the county would be enabled to
collect taxes.
For these reasons, I believe that our focus must extend
beyond the question whether a contractual relationship has
been entered between the county and the township. Instead, we
should consider whether the contested action, here a vote to
decide who is responsible for collecting taxes, amounts to the
performance of one duty and the breach of another.1
II
Having decided that our focus should be on the statutory
language, we must next determine what constitutes a breach and
whether a breach occurred in this case. The majority adopts
the Court of Appeals view that “a breach of duty arises when
a public official holding dual offices cannot protect,
advance, or promote the interest of both offices
simultaneously.” Slip op at 19. The cited basis for this
1
While the majority believes that my approach invites
mischief, I believe that it is an approach required by the
legislative language. Cries of mischief should, therefore, be
directed toward the Legislature.
5
premise is that public officers are fiduciaries who owe a duty
of loyalty to the public. The majority then concludes that
two public offices will not be deemed incompatible simply
because one official represents two constituencies, each of
which may have interests that conflict with the other’s
interests. Instead, the majority holds, an actual breach must
exist.
I agree with the majority that the question under
subsection (iii) of the IOA is not whether a particular
officer might potentially face a conflict of interest or
breach of duty at some undetermined point in the future. The
statutory use of the word “breach” and the phrase “is
performing the duties” imply that an officer’s performance is
relevant to whether an IOA violation has occurred. Similarly,
the use of the word “results” implies that a situation
actually must have arisen in which the officer has breached
one duty through the performance of another. For this reason,
the IOA does seem to support the proposition that an actual
event must trigger the breach contemplated by subsection
(iii). For example, had the township never considered whether
it should collect its own taxes, the defendant’s duties as tax
coordinator would only potentially conflict with her duties as
township trustee. However, at the moment the township took up
the tax question, the vote that occurred had an effect on the
6
township itself and on the township’s relationship (or
nonrelationship) with the county. I believe that the majority
errs in concluding that no breach existed in this case.
The circuit court recognized a problem that the majority
does not. It held:
In the instant matter, a situation has arisen
involving both of defendant’s offices which has
resulted in a breach of her public duty. The issue
of whether to allow Macomb County to collect
delinquent property taxes–and related fees,
expenses, interest, penalties and other charges–
has been presented to the Harrison Township Board
of Trustees. Defendant’s vote on this issue as a
township trustee impacts her interests as a
delinquent personal property tax coordinator for
the county. This conflict is unavoidable and
defendant can not protect, advance, or promote the
interests of both her offices with disinterested
skill, zeal and diligence. [Emphasis added.]
The circuit court decision was based on the premise that the
defendant’s decision to vote on the measure resulted in the
breach of her duty to the county.2 I do not believe that the
circuit court committed an error requiring reversal in holding
that the defendant’s decision to vote in her capacity as
trustee affected her duties as delinquent property tax
2
As the circuit court recognized, a township trustee is
duty bound to carry out the business of the township as an
agent and fiduciary of the township. See People v
Hirschfield, 271 Mich 20, 25; 260 NW 106 (1935). In the
present controversy, the question is whether the defendant’s
decision to carry out the business of the township by voting
on a motion to continue the township’s tax collection policy
breached a duty she owed either to the township or to the
county.
7
coordinator.
Even the majority acknowledges that “by voting on the
motion defendant breached a duty of loyalty to Macomb County.”
Slip op at 21, n 14. The majority further implicitly
recognizes the predicament created by the vote when it submits
that the defendant “should have abstained from voting on the
motion.” Id. However, the majority summarily dismisses the
defendant’s breach in a footnote. Id.3
I cannot join the majority’s dismissal of the defendant’s
breach.4 Given the statutory language, I fail to see how the
breach can be excused. Rather, the defendant’s actions
constitute a breach under the majority’s own test. She could
not “protect, advance, or promote the interest of both offices
simultaneously” as the majority purports to require. Slip op
at 19. Unlike the majority, I believe that the defendant’s
3
Contrary to the majority’s assertion, I believe that an
actual, rather than potential, breach occurred in this case.
4
Similarly, I cannot agree that the harm can be remedied
by declaring that the defendant “should have abstained.” In
so concluding, the majority implicates a number of questions
that are not before this Court. Arguably, the defendant
became unable to avoid a breach of duty once the vote arose.
It is also arguable that a decision to abstain would have, in
itself, illustrated the defendant’s inability to serve the
interests of the township. See, e.g., Contesti v Attorney
General, 164 Mich App 271; 416 NW2d 410 (1987), quoting OAG
1979-1980, No 5626, 545 (January 16, 1980), for the
proposition that abstention may eliminate a conflict of
interest, but not incompatibility of offices. In any event,
we need not decide the issue because the defendant did
actually vote.
8
decision to vote triggered the IOA, and that her offices are
incompatible. Therefore, I would affirm summary disposition
in favor of the plaintiffs.
WEAVER and KELLY , JJ., concurred with CAVANAGH , J.
9