Detroit Area Agency on Aging v. Office of Services to the Aging

• Decision Date: 19 May 1995
• Docket Number: Docket No. 165148
• Citation: 210 Mich.App. 708,534 N.W.2d 229
• Parties: DETROIT AREA AGENCY ON AGING, Plaintiff-Appellee, v. OFFICE OF SERVICES TO THE AGING, The Commission on Services to the Aging, Nancy Crandall, Executive Director of the Commission, Theodore Brietenbach, Michael Green, Liselotte Hoelzel-Seipp, Donald Hoffman, Elwin Johnson, Barbara Mantila, Roselia Neumann, and Jacqueline Jolly, Commission Members, Defendants-Appellants, and Area Agency on Aging 1B, Amicus Curiae.
• Court: Court of Appeal of Michigan — District of US

Page 229

534 N.W.2d 229

210 Mich.App. 708

DETROIT AREA AGENCY ON AGING, Plaintiff-Appellee, v. OFFICE OF SERVICES TO THE AGING, The Commission on Services to the Aging, Nancy Crandall, Executive Director of the Commission, Theodore Brietenbach, Michael Green, Liselotte Hoelzel-Seipp, Donald Hoffman, Elwin Johnson, Barbara Mantila, Roselia Neumann, and Jacqueline Jolly, Commission Members, Defendants-Appellants and Area Agency on Aging 1B, Amicus Curiae.

Docket No. 165148.

Court of Appeals of Michigan.

Submitted Oct. 4, 1994, at Lansing.

Decided May 19, 1995, at 9:40 a.m.

Craig, Ryan, Mast & King by Kenneth Gordon King, Naples, FL, for plaintiff.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Stephen H. Garrard, Asst. Atty. Gen., for defendants.

Before HOOD, P.J., and GRIBBS and SERVITTO, ^* JJ.

PER CURIAM.

Defendants appeal as of right the trial court's order disqualifying six commissioners from participating on the Commission on Services to the Aging (the commission). The order also voided the commission's vote approving a new state funding formula affecting the fourteen local Area Agencies on Aging (AAAs). Finally, through its order, the trial court ordered the Governor to appoint new members to the commission within 60 days and further ordered the contemplated reconstituted commission to reconsider the funding formula within 120 days. We reverse.

Under the Older Americans Act, 42 U.S.C. § 3001 et seq., a state agency created to help the elderly is eligible to receive federal grants for funding programs to serve the elderly, provided that the agency develops a formula for distributing the funds received under the act. Consistent with the Older Americans Act, the commission and the Office of Services to the Aging (OSA) were created under the Older Michiganians Act, M.C.L. § 400.581 et seq.; M.S.A. § 2.638(51) et seq. The commission, which consists of fifteen commissioners appointed by the Governor, is the policy-making body for the OSA and the fourteen regional AAAs in Michigan. As the policy-making body under the Older Michiganians Act, the commission is responsible for establishing a funding formula for the distribution (by the OSA) of federal and state funds to the fourteen Michigan AAAs. Plaintiff, the Detroit Area Agency on Aging, is one of the fourteen AAAs.

On September 18, 1992, the commission, by a vote of ten to five, approved a new state funding formula affecting the fourteen AAAs. Under the new formula, plaintiff's share of the funds are scheduled to decrease because of a decline in the elderly population in Detroit. In November 1992, plaintiff initiated this action for superintending control, mandamus, and declaratory and injunctive relief, alleging in relevant part that the commission's approval of the new funding formula was unlawful and void because eight commissioners were ineligible to vote because they held incompatible public offices and acted under actual or potential conflicts of interest in violation of the incompatible public offices act, M.C.L. § 15.181 et seq.; M.S.A. § 15.1120(121) et seq., and the state ethics act, M.C.L. § 15.341 et seq.; M.S.A. § 4.1700(71) et seq. Among other things, plaintiff requested the trial court to void the commission's vote approving the new funding formula and to disqualify the commissioners at issue from further participation on the commission.

At a December 9, 1992, hearing, the trial court ruled that Commissioner Michael Green was disqualified from voting on the new funding formula because of a conflict of interest. Defendants did not object. The trial court postponed consideration of the incompatibility issue until a later date. Defendants subsequently moved for summary disposition pursuant to MCR 2.116(C)(4), (8), and (10). Defendants denied that Commissioners Roselia Neumann, Barbara Mantila, Donald Hoffman, Elwin Johnson, and Liselotte Hoelzel-Seipp held positions that conflicted or were incompatible with their commission positions. Thus, defendants argued, a finding by the trial court that any one of these commissioners was eligible to vote on the new funding formula in September 1992 would result in a quorum approving the formula.

At the hearing pursuant to defendants' motion for summary disposition, the trial court determined that commissioners Mantila, Hoffman, Hoelzel-Seipp, and Jacqueline Jolly should be removed from the commission. Also included within the ambit of the trial court's order were Commissioners Theodore Brietenbach and Green, although no specific findings were made relative to these two commissioners. However, defendants acknowledged previously that the votes of Commissioners Brietenbach and Green were void or voidable because of the fact that they held incompatible offices when the new funding formula was adopted. Finally, as stated above, the trial court ordered the Governor to appoint new commission members within 60 days, and ordered the new commission to ratify or amend the new funding formula within 120 days. Having granted defendants' motions for a stay and immediate consideration, we now address the substance of the trial court's order.

Defendants first claim that the trial court erred in disqualifying the six commissioners from the commission on the basis of its conclusion that they held other incompatible positions. We agree.

The incompatible public offices act prohibits a public officer or public employee from holding two or more incompatible public offices at the same time. M.C.L. § 15.182; M.S.A. § 15.1120(122). Wayne Co. Prosecutor v. Kinney, 184 Mich.App. 681, 683, 458 N.W.2d 674 (1990); Contesti v. Attorney General, 164 Mich.App. 271, 416 N.W.2d 410 (1987). Subsection b of § 1 of the act, M.C.L. § 15.181(b); M.S.A. § 15.1120(121)(b), 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, result 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 another.

(iii) A breach of duty of public office.

This definition applies to public offices held by both public officials and public employees. Kinney, supra.

This Court need not address the issue whether members of the commission are public officers, because defendant commissioners have acknowledged that they are indeed public officers. Moreover, defendant commissioners concede that, as public officers, they are prohibited from simultaneously holding two or more incompatible public offices. Because it is established that the commissioners are public officers, we must determine whether the trial court erred in concluding that they held other incompatible public offices.

Under the Older Americans Act and the companion Michigan statute, the commission is required to designate an AAA for each planning and service area of the state. The commission is also responsible for developing a formula for the distribution of state and federal funds to these AAAs, and may enter into contracts and agreements necessary or incidental to the performance of its duties. Suffice it to say, the foregoing clearly establishes that the fourteen AAAs are subordinate to, and subject to the supervision of, the commission.

In the present case, Commissioners Brietenbach and Green voted to approve the new funding formula in September 1992. At the time of the vote, Commissioner Brietenbach was a member of an AAA advisory board, whereas Commissioner Green was a member of an AAA administrative board. Defendants concede that Brietenbach and Green held incompatible positions when they voted to approve the new funding formula. Accordingly, defendants' concede that the votes cast by Brietenbach and Green were voidable in the discretion of the trial court pursuant to M.C.L. § 15.185; M.S.A. § 15.1120(125). The trial court indeed exercised this discretion and voided the votes of Commissioners Green and Brietenbach. We find no error in the trial court's decision in this regard.

However, notwithstanding the fact that the trial court had the discretion to void the two votes in question, defendants claim that the trial court erred in disqualifying Commissioners Green and Brietenbach from the commission because they each resigned from their respective "other" incompatible positions before the trial court's ruling. We agree.

First, it is apparent from the record that the trial court treated as synonymous the issues of "incompatibility" and "conflict of interest." The trial court's failure to distinguish these two issues is significant. Vacation of one office will solve a public official's dilemma of two incompatible offices. Kinney, supra at 684, 458 N.W.2d 674; Contesti, supra at 281, 416 N.W.2d 410. This is not necessarily the case in "conflict of interest" situations. In the present case, Commissioners Green and Brietenbach each resigned from the acknowledged "other" incompatible position before the trial court's ruling. This being the case, the question of "incompatibility" effectively was resolved. Kinney, supra; Contesti, supra. Accordingly, the trial court's decision to remove Green and Brietenbach from the commission was unwarranted because they had already renounced their "other" incompatible positions.

Next, regarding Commissioner Hoffman, a more difficult question exists...