SHARON MCPHAIL V ATTORNEY GENERAL
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STATE OF MICHIGAN
COURT OF APPEALS
SHARON MCPHAIL,
UNPUBLISHED
November 9, 2004
Plaintiff-Appellant,
v
No. 248126
Wayne Circuit Court
LC No. 03-305475-CZ
ATTORNEY GENERAL of the STATE of
MICHIGAN,
Defendant-Appellee,
and
RUTH CARTER and KEVIN P. KAVANAUGH,
Defendants.
Before: Schuette, P.J., and Bandstra and Meter, JJ.
PER CURIAM.
Plaintiff appeals as of right1 from a judgment for defendant-appellee (defendant). The
circuit court, in response to plaintiff’s request for a declaratory judgment, ruled that the positions
of city attorney for the city of Ecorse and member of the Common Council of the city of Detroit
were incompatible under Michigan’s Incompatible Public Offices Act (MIPOA), MCL 15.181 et
seq. In response to defendant’s request for a permanent injunction, the trial court ordered
plaintiff to resign from one of the public offices within twenty-one days. We affirm.
Plaintiff argues that the trial court erred in ruling that the positions in question were
incompatible under the MIPOA because, although both offices are public offices, plaintiff’s
performance of the duties of the offices did not result in an actual breach of duty of a public
office.
1
We reject defendant’s claim that plaintiff could not appeal as of right in this case because the
order from which she purportedly appealed was not a final order. Indeed, despite the circuit
court’s language referring to the order as non-final, the order did in fact “dispose[] of all the
claims and adjudicate[] the rights and liabilities of all the parties.” See MCR 7.202(7)(a)(i).
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The interpretation and application of a statute is a question of law that this Court reviews
de novo. Macomb County Prosecuting Attorney v Murphy, 464 Mich 149, 157; 627 NW2d 247
(2001). The goal of judicial interpretation of statutes is to ascertain and effectuate the intent of
the Legislature. Gladych v New Family Homes, Inc, 468 Mich 594, 597; 664 NW2d 705 (2003),
superceded on other grounds by statute as stated in Nichols v Moore, 334 F Supp 2d 944 (2004).
It is presumed that the Legislature intended the plain and obvious meaning it expressed.
Pohutski v City of Allen Park, 465 Mich 675, 683 ; 641 NW2d 219 (2002). If the terms of a
statute are ambiguous, judicial construction is appropriate. Murphy, supra, 464 Mich 158. The
Court must apply a reasonable construction that considers the purpose of the statute and the harm
it is designed to remedy. Id. The Court must give effect to every word, clause, and sentence,
presuming that each is used for a purpose. Pohutski, supra, 465 Mich 683-684. Likewise, the
Court should avoid a statutory construction that renders any portion of the statute irrelevant or
invalid. Id. at 684. The provisions of a statute must be read within the context of the entire
statute so as to produce a harmonious and consistent enactment. Murphy, supra, 464 Mich 159160.
The MIPOA prohibits a public officer or public employee from holding incompatible
public offices at the same time. MCL 15.182; Murphy, supra, 464 Mich 154. A public officer
includes a person who is elected or appointed to a public office of a city in this state or to a
council of a city in this state. MCL 5.181(e)(ii) and (iii); Id. The term “incompatible offices” is
defined in MCL 15.181(b) as follows:
[P]ublic 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.
Under the provisions of the act, incompatibility exists when the performance of the duties
of an office results in one of these three enumerated circumstances. Murphy, supra, 464 Mich
162-163.2 The focus in the instant case is whether plaintiff’s performance of her duties under the
two positions resulted in a breach of duty of a public office. MCL 15.181(b)(iii).
Under an agreement entered into on September 30, 1940, the city of Ecorse has an
existing contract for water services with the city of Detroit. Plaintiff admits that members of the
Detroit City Council participate in approving or disapproving the annual water rates as
determined by the Detroit Water and Sewer Department (DWSD). Moreover, as city attorney for
the city of Ecorse, plaintiff is required by charter to “act as legal advisor to and as attorney and
2
There are certain exceptions to the general rule, but they do not apply in this case. MCL
15.183.
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counsel for the municipality and all its officers and departments in matters relating to their
official duties.” Under the Ecorse City Charter, plaintiff must “prepare, or officially pass upon,
all contracts, bonds and other instruments in writing, in which the [c]ity is concerned[.]”
Plaintiff is also required to maintain copies of all contracts entered into by the city of Ecorse or
on the city’s behalf.
In February 2003, the Ecorse City Council passed a resolution absolving plaintiff of any
future responsibilities or duties in any matters between Ecorse and Detroit. The resolution
specified that in such matters, outside council would be appointed. Moreover, the resolution
appointed a separate attorney to handle all water and sewer matters for the city.
Plaintiff contends that her two positions were not incompatible because, in her capacity
as a council member for the city of Detroit, she merely votes on the annual water rates for all the
areas serviced by the DWSD. She claims that she is not involved in any negotiations or other
aspects of the water contract. Plaintiff also claims that, as city attorney for the city of Ecorse,
she had never been required to participate in or assist with any matter between Ecorse and
Detroit. She contends that it is permissible to avoid a breach of duty by abstaining from
performing a function that may cause a breach of duty.
Plaintiff relies heavily on the Supreme Court’s decision in Murphy, supra, to support her
claim that the two offices were not inherently incompatible.
In Murphy, supra, 464 Mich 151, the Court considered whether the defendant violated
the MIPOA “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.” As a trustee, the defendant could have been required to vote on a
proposal for a contract to have the county treasurer collect the township’s delinquent personal
property taxes. Id. at 151-152.
The Court, in interpreting the language of the MIPOA, stated that the phrase “results in”
in MCL 15.181(b) manifests the legislature’s clear intention to restrict applicability of the
statutory bar to “situations in which the specified outcomes or consequences of a particular
action actually occur.” Murphy, supra, 464 Mich 162-163. The Court stated, “That 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.” Id. at 163 (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.” Id. at
164.
The Court concluded that the Murphy defendant’s public positions were “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.” Id. at 166-167. Because the two entities had no existing contract and had not actually
negotiated a contract, the defendant was not in violation of the MIPOA. Id. at 165-167.
Plaintiff ignores the primary distinction between Murphy and this case. In Murphy, the
defendant’s performance of her duties had the potential for conflict but had no actual conflict
because Harrison Township had no existing contract with the county and was not negotiating a
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contract with the county.3 Unlike the situation in Murphy, plaintiff occupies positions within two
governmental entities that are contractually bound. The city of Ecorse has an existing contract
with the city of Detroit for water services. According to the terms of the contract, the city of
Detroit has the exclusive duty to provide water to the city of Ecorse. Moreover, the contract was
entered into for “an indefinite period of time, with termination by one year notice of either party
or mutual agreement of both parties.”
Current case law prohibits a person from simultaneously serving as an officer of one
public entity that has entered into a contract or is negotiating a contract with another public entity
of which the person is an officer. Murphy, supra, 464 Mich 165-167; Wayne Co Prosecutor v
Kinney, 184 Mich App 681, 684-685; 485 NW2d 674 (1990); Contesti v Attorney General, 164
Mich App 271, 281; 416 NW2d 410 (1987).
Moreover, although we acknowledge that the opinion is not binding on this Court, the
Attorney General explained in OAG, 1992, No 6717, p 139 (April 7, 1992), that the MIPOA
specifically prohibits a person serving on the governing body of a local unit of government from
simultaneously serving as the attorney for another local unit of government if both entities have
entered into or are negotiating one or more contracts with one another. Likewise, in OAG, 1995,
No 6840, p 25 (March 28, 1995), the Attorney General stated that the act prohibits a person from
simultaneously serving as a member of a governing board of a state university and a member of a
city council when the two entities have contractual agreements for lands sales and acquisitions
and the provision of utility services by the city to the university. Additionally, “a contract that
already exists before a person serves on both bodies simultaneously can also create an
incompatibility if the contract is one that is certain to require some action or decision by one or
both public bodies during the time that person holds both public offices.” OAG, 1995-1996, No
6927, p 232 (December 16, 1996).
We note that the Attorney General also issued an opinion in the specific matter currently
before us. We conclude that the opinion is in conformity with the current state of the law. The
Attorney General opined that the MIPOA prohibits a person from simultaneously serving as a
member of a city council of one city and the city attorney of another city if the two entities are
contractually bound. OAG, 2003, No 7125 (February 20, 2003). The opinion states, “When
called upon to consider whether to approve or disapprove the rates to be charged residents of the
[c]ity of Ecorse and when considering whether to adopt water-related ordinances that will
become a part of the contract with Ecorse by operation of clause 16, the person who also serves
as Ecorse City Attorney cannot simultaneously satisfy a fiduciary duty of loyalty owed to both
3
The Murphy Court noted that the defendant should have abstained from voting on the
preliminary matter of whether the township should continue to collect its delinquent personal
property taxes instead of attempting to contract with the county. Murphy, supra, 464 Mich 166 n
15. However, the Court concluded that, because the township never negotiated for a contract
with the county or entered into a contract with the county, the defendant’s vote did not
necessitate resignation of one of the positions. Id. Additionally, the Court concluded that the
circuit court properly declined to void the defendant’s vote on the preliminary motion because
there was no evidence that her vote was the deciding vote. Id.
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cities.” Id. The Attorney General concluded that plaintiff was situated on both sides of a
contractual relationship, which resulted in an incompatibility under the act. Id. Moreover, the
Attorney General concluded that abstaining from the duties of the offices did not cure the
incompatibility. Id. Citing Contesti, supra, 164 Mich App 281, 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.” OAG, 2003,
No 7125 (February 20, 2003).
The Attorney General was correct in noting that 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. Oakland Co Prosecutor v Scott, 237 Mich App 419, 424; 603
NW2d 111 (1999); Kinney, supra, 184 Mich App 684; Contesti, supra, 164 Mich App 281.
Indeed, as a public officer, plaintiff owes a duty of loyalty to the public. Murphy, supra, 464
Mich 164. It is impermissible for a public officer to hold dual offices when the officer “cannot
protect, advance, or promote the interest of both offices simultaneously.” Id. Plaintiff cannot
use other means to avoid the responsibilities of her given offices. She cannot merely abstain
from voting on the annual water rates for the city of Detroit because that would constitute a
breach of duty of the office of council member. Plaintiff cannot merely delegate her duties to
approve and pass all contracts for the city of Ecorse to another attorney. Delegation of
responsibilities or abstention from voting as a remedy to incompatibility disregards the public
policy that an officer owes a duty of loyalty. See, generally, Contesti, supra, 164 Mich App 281.
Plaintiff’s argument that Murphy, supra, indicates that a person may abstain from
participation in order to avoid incompatibility misinterprets the Court’s ruling. Referring to
preliminary contractual negotiations, the Murphy Court quoted an Attorney General opinion
proposing that a public officer or employee could avoid a breach of duty “‘by abstaining from
participating in the consideration of the contract.’” Murphy, supra, 464 Mich 163, quoting
OAG, 1979-1980, No 5626, pp 537-542 (January 16, 1980). This indicates that abstention from
participation is permissible during preliminary contractual matters – not after contractual
negotiations commence or an actual contract is formed.
Plaintiff’s claim also ignores the act’s omission of additional remedial measures to cure
an incompatibility. The statute states that “a public officer or public employee shall not hold 2 or
more incompatible offices at the same time.” MCL 15.182. Implicit in this language is the sole
remedy requiring an officer in violation of the statute to vacate a position that is deemed
incompatible.
Affirmed.
/s/ Bill Schuette
/s/ Richard A. Bandstra
/s/ Patrick M. Meter
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