Macomb County Prosecuting Attorney v. Murphy

Decision Date30 May 2001
Docket NumberNo. 114444.,114444.
PartiesMACOMB COUNTY PROSECUTING ATTORNEY, Plaintiff-Appellee, v. Sherri MURPHY, Defendant-Appellant.
CourtMichigan Supreme Court

Carl J. Marlinga, Prosecuting Attorney, Robert J. Berlin, Chief Appellate Attorney, and Eric J. Kaiser, Chief Trial Attorney, Mt. Clemens, for the plaintiff.

York, Dolan & Ciaramitaro, P.C. (by Timothy D. Tomlinson and John A. Dolan), Clinton Township, for the appellant.

Amici Curiae: Bauckham, Sparks, Rolfe, Lohrstorfer & Thall, P.C. (by John K. Lohrstorfer) St., Kalamazoo, for Michigan Townships Association and Michigan Municipal League.

Opinion

CORRIGAN, C.J.

We granted leave in this case to consider whether defendant violated the incompatible offices act, M.C.L. § 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," M.C.L. § 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 M.C.L. § 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 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 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. at 381, 592 N.W.2d 745, 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, 592 N.W.2d 745. 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

This Court granted defendant's application for leave to appeal. 462 Mich. 854, 613 N.W.2d 718 (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 The Legislature defined the phrase "incompatible offices" for purposes of the act. MCL 15.181(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 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 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.

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 N.W.2d 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 N.W.2d 119 (1999). We read the statutory language in context to determine whether ambiguity exists. Id. at 237, 596 N.W.2d 119; see Consumers Power Co. v. Public Service Comm., 460 Mich. 148, 163, n. 10, 596 N.W.2d 126 (1999). If the language is unambiguous, judicial construction is precluded. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). We enforce an unambiguous statute as written. Sun Valley Foods, supra at 236, 596 N.W.2d 119. 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, 573 N.W.2d 611.

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...

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