Macomb County Prosecutor v. Murphy

• Decision Date: 12 January 1999
• Docket Number: Docket No. 199406
• Citation: 233 Mich.App. 372,592 N.W.2d 745
• Parties: MACOMB COUNTY PROSECUTOR, Plaintiff-Appellee v. Sherri MURPHY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 745

592 N.W.2d 745

233 Mich.App. 372

MACOMB COUNTY PROSECUTOR, Plaintiff-Appellee v. Sherri MURPHY, Defendant-Appellant.

Docket No. 199406.

Court of Appeals of Michigan.

Submitted Sept. 1, 1998, at Grand Rapids.

Decided Jan. 12, 1999, at 9:00 a.m.

Released for Publication March 23, 1999.

Carl J. Marlinga, Prosecuting Attorney, and Eric J. Kaiser, Assistant Prosecuting Attorney, for the plaintiff.

Peter H. Mytnyk, Mt. Clemens, for the defendant.

Before: MARK J. CAVANAGH, P.J., and MURPHY and WHITE, JJ.

PER CURIAM.

In this case plaintiff Carl Marlinga, as Macomb County Prosecutor, brought this action pursuant to § 4 of the incompatible offices act, M.C.L. § 15.181 et seq.; MSA 15.1120(121) et seq. The trial court found that defendant Sherri Murphy holds two incompatible public offices and granted summary disposition in favor of plaintiff. The trial court denied defendant's subsequent motion to disqualify plaintiff. Defendant appeals by leave granted. We affirm.

Defendant is an elected trustee of Harrison Township. Defendant also holds the appointed position of "Delinquent Personal Property Tax Coordinator" in the Macomb County Treasurer's Office. Defendant's duties in this position include, among other things, the coordination and supervision of the collection of delinquent personal property taxes.

Pursuant to M.C.L. § 211.56(3); MSA 7.100(3), a local taxing authority, such as Harrison Township, and the county board of commissioners, with the concurrence of the county treasurer, may enter into an agreement for the treasurer to collect the local governing body's delinquent property taxes. ¹ If a local taxing authority and the county enter into such an agreement, the county is presumed to realize some monetary gain for its efforts. ²

On March 14, 1994, at a regular meeting of the Board of Trustees of Harrison Township the board considered and voted on a motion to have the township continue to collect its own delinquent personal property taxes, rather than requesting the Macomb County Treasurer to collect them. Defendant supported the motion. The motion carried, and it was resolved that the township would continue to collect its own delinquent personal property taxes. ³

In September 1994, the subject of the collection of the township's delinquent personal property taxes was again raised. A Harrison Township trustee requested that additional information on the subject be compiled. ⁴

That same month, the Harrison Township Board of Trustees sent plaintiff a letter expressing concern that, in view of defendant's position at the Macomb County Treasurer's Office, a conflict of interest existed regarding her vote on the proposal to have the county treasurer collect delinquent property taxes. The board requested plaintiff's opinion with regard to whether defendant's dual offices did in fact present a conflict of interest.

On December 27, 1994, plaintiff issued an opinion letter stating that defendant's dual offices "are not necessarily incompatible; but they 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." ⁵ Plaintiff concluded that under the circumstances, where the township trustees had already voted on the question whether Harrison Township would continue to collect its delinquent property taxes, and where the question was unresolved because the subject was raised after the vote and was being investigated, defendant's dual offices were incompatible. Because defendant refused to resign either of her positions, on May 3, 1995, plaintiff filed a declaratory judgment action in the Macomb Circuit Court alleging that defendant had breached a duty of public office in violation of the incompatible offices act and seeking to remove defendant from one of the public offices.

On October 23, 1995, plaintiff moved for summary disposition. Following a hearing, on January 11, 1996, the trial court entered an opinion and order granting plaintiff's motion for summary disposition pursuant to MCR 2.116(C)(10). The trial court rejected defendant's claim that there is a question of fact regarding whether she ever voted for or against a motion to enter into negotiations or enter into an agreement for the collection of delinquent personal property taxes by the county as "merely semantic aphasia." The trial court also rejected defendant's claim that there is a question of fact regarding whether the scope or status of her job for the county would change if the township voted to have the county collect its taxes for it, noting that pursuant to M.C.L. § 211.56(3); MSA 7.100(3), the county is presumed to realize some monetary gain as a result of assuming the right to collect late fees. The court concluded that defendant's offices of township trustee and county delinquent personal property tax coordinator were irreconcilable under the incompatible offices act and ordered defendant to vacate, at her option, one of her two positions within fifteen days of the date of the order. The trial court emphasized that its finding was based solely on the incompatibility of the two offices and not on any lack of integrity or good faith on the part of defendant. On February 29, 1996, the trial court denied defendant's motion for reconsideration.

On April 2, 1996, defendant filed a motion to disqualify plaintiff for an alleged conflict of interest. Defendant sought an order dismissing the action nunc pro tunc to the time of its filing. Defendant asserted that plaintiff acted in direct conflict with his mandatory statutory duty to give advice and counsel to the Macomb County Treasurer by filing this discretionary action against defendant.

After a hearing, the trial court issued an order dated May 1, 1996, denying defendant's motion. The court held that plaintiff's statutory obligation to provide advice to the Macomb County Treasurer did not constitute grounds for disqualification. Furthermore, even if plaintiff were disqualified, the appropriate remedy would be the appointment of a special prosecutor, not dismissal. This Court subsequently granted defendant's delayed application for leave to appeal.

I

On appeal, defendant argues that the trial court erred in finding that she breached a duty of public office. Defendant contends that a breach of duty may occur only where there is a contract or contractual negotiations between the two public bodies at issue. Because Harrison Township and the Macomb County Treasurer had neither negotiated for nor entered into a contract for the collection of delinquent taxes, defendant asserts that there was no breach of duty under § 1 of the incompatible offices act. MCL 15.181(b)(iii); MSA 15.1120(121)(b)(iii).

We review de novo a trial court's rulings with respect to questions of law in a declaratory judgment action. Stajos v. City of Lansing, 221 Mich.App. 223, 226, 561 N.W.2d 116 (1997). The trial court's factual findings, however, will not be reversed unless they are clearly erroneous. Auto-Owners Ins. Co. v. Harvey, 219 Mich.App. 466, 469, 556 N.W.2d 517 (1996).

The incompatible offices act prohibits a public officer or public employee from holding two or more incompatible public offices at the same time. Section 2 of the act provides in pertinent part:

Except as provided in section 3, a public officer or public employee shall not hold 2 or more incompatible offices at the same time. [MCL 15.182; MSA 15.1120(122).]

The act defines "incompatible offices" as follows:

"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. [MCL 15.181(b); MSA 15.1120(121)(b).]

Under the common law, public offices were incompatible when the nature of the positions created the potential for a breach of duty. Following the enactment of the incompatible offices act, an incompatibility now arises only when a breach of duty actually results from the performance of the duties of the public offices. Contesti v. Attorney General, 164 Mich.App. 271, 280, 416 N.W.2d 410 (1987). Abstaining from any official actions in an attempt to avoid the incompatibility does not remedy a breach of duty; vacating one of the offices is the only solution to the problem. Wayne Co. Prosecutor v. Kinney, 184 Mich.App. 681, 684, 458 N.W.2d 674 (1990); Contesti, supra at 281, 416 N.W.2d 410; see also Detroit Area Agency on Aging v. Office of Services to the Aging, 210 Mich.App. 708, 714, 534 N.W.2d 229 (1995).

In Contesti, supra, this Court found that the positions of township trustee and school district superintendent were incompatible where the board of trustees and the school district entered into contracts regarding the collection of property taxes, and where the two entities were in competition for limited tax dollars when making budgetary requests from the county tax allocation board. Similarly, in Kinney, supra, this Court agreed that the defendant held incompatible offices when he served both as a member of the city council and as a paid volunteer fire fighter for the city's fire department, inasmuch as the city council was the ultimate employer of all paid volunteer fire fighters and was the negotiator of the governing collective bargaining agreement.

Defendant notes that in both Contesti and Kinney there was either a contract or contractual negotiations that placed the public official on opposite sides. Defendant therefore asserts that there is no breach of duty of public office until the official is at competing ends of either a contract or contractual negotiations. ⁶ We do not find defendant's argument persuasive. Neither Contesti nor Kinney...