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The cities of Ann Arbor and Ypsilanti, Washtenaw County and the Ann Arbor Transit Authority are working to convert the AATA transit authority to a county-wide transit authority. It appears that the AATA will continue to exist for a period after the county-wide authority is created. Each will have a governing board.

The question arises whether members of the AATA Board may simultaneously serve as members of the new county-wide transit authority's Board.

Michigan law prohibits public officials and public employees from holding incompatible offices. MCL 15.181. Section 1 (b) defines incompatible offices:

15.181 Definitions.

Sec. 1.

As used in this act:

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(b) “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.

Section 2 of the Act succinctly describes the prohibition:

15.182 Holding incompatible offices.

Sec. 2.

(1) Except as provided in section 3, a public officer or public employee shall not hold 2 or more incompatible offices at the same time.

Section 3 of the Act provides various exceptions to the general rule, including one specifically applicable to transit authorities:

15.183 Public employment or holding of public offices; scope of MCL 15.182.

Sec. 3.

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(11) Section 2 does not prohibit a public officer or public employee of an authority created under the public transportation authority act, 1986 PA 196, MCL 124.451 to 124.479, from serving as a public officer or public employee of another public transportation authority if each public transportation authority has members consisting of identical political subdivisions.

In a dispute applying the section 1 (b) (iii) breach of duty standard, the Michigan Court of Appeals found offices incompatible where the individual would be on both sides of contractual agreements, even if he recused himself from voting on the contracts:

Thus, a public official's abstention from the responsibilities of his or her office in order to avoid participating in the approval of both sides of an agreement between the two public entities which he or she serves is itself a breach of duty. Only vacation of one office will resolve the public official's dilemma. [OAG, 1979-1980, No 5626 at 545.]

Contesti v. Attorney Gen., 164 Mich. App. 271, 281 (Mich. Ct. App. 1987).

Click here to see the entire incompatible offices act.

The AATA and the new county-wide transit authority do not include "identical political subdivisions. AATA includes only the City of Ann Arbor and contracts service to some other communities. The new county-wide transit authority, in spite of its description, will not include the entire county. It will, however, include many political subdivisions that are not members of the AATA. The Section 3 (11) exception to the incompatible offices mandate would not apply to anyone serving on both authority boards or being employed by both authorities (such as the director) if the two entities will have any contractual agreements between them. For example, if the transfer of assets and operational responsibilities from AATA to the county-wide system will be accomplished by contractual arrangements between the two boards, those contracts would make positions on the two board incompatible under the Act. It would appear that compliance with the incompatible offices act may require each entity to have its own board and managers.