By Benjamin Gohs
Charlevoix County Commissioner Larry Sullivan (R-District 6) has opted to remain a commissioner following a Michigan Attorney General opinion that he cannot simultaneously hold the Charlevoix City Clerk position.
Sullivan announced his decision to decline the clerk position—which he won handily in the November 2013 election—in a Thursday Jan. 23 letter to Charlevoix City and Township voters.
“Making this decision has been difficult on both my family and I,” Sullivan stated. “Many have advised me to take the job which pays the most—(the) city clerk’s position.”
Early last week, Sullivan told the Boyne City Gazette that, while he would abide by the Michigan Attorney General Office’s opinion, he did not agree with the decision.
“Three attorneys, whom I have the utmost respect for, looked into the issue and none of them felt there were conflicts between the two offices,” Sullivan stated in his letter.
Sullivan pointed to an Aug. 20, 2013, opinion from Charlevoix County Board of Commissioners’ Civil Counsel Bryan Graham and Charlevoix City Attorney Jim Young which stated, “There are no contractual matters or statutory duties of the city clerk and a county commissioner which creates a breach of duty by the actual performance of any of those duties.”
Sullivan went on to state that a later opinion by the two aforementioned attorneys, dated Oct. 17, 2013, posited there was an incompatibility of offices because, they asserted, the city clerk would use voting equipment owned by the county and the county expended funds for elections that were billed to the city by Charlevoix County.
“The ownership of the election equipment is in question and the supplies that the county ordered and billed the city for could be direct billed to the city, eliminating these as issues,” Sullivan stated in his letter.
In the letter, Sullivan stated his reasons for running for the clerk’s office included: that nobody else had filed to run; that he felt qualified to hold the office; that, since both county commissioner and city clerk offices were “part-time,” he could serve both without either schedule conflicting the other; and that he did not believe there were any incompatibilities should one person occupy both offices.
“My running for city clerk was based upon my belief that I could legally fill both positions,” Sullivan stated. “Since I am unable to do so, in my heart, I believe that I must fulfill my pledge when running for county commissioner to do the best I could in representing the residents of both Charlevoix Township and the City of Charlevoix.”
Sullivan further stated, “As a result, I am declining to accept the position of the Charlevoix City Clerk.”
In a special meeting on Jan. 2, Charlevoix City Council voted to bar Sullivan from being sworn in as the city clerk. Just over two weeks later, the Michigan Attorney General Office issued its opinion on the matter.
This issue originally arose in 2013, when then Charlevoix City Clerk Carol Ochs announced she would not seek another term and abruptly resigned a few weeks later.
Sullivan then ran for the office and beat Ochs, who ran as a write-in candidate, by a nearly 4:1 margin.
As Sullivan stated in his letter, civil counsel for both the city and the county then opined on the matter, and eventually the attorney general was sought for an ultimate opinion—first by Michigan State Rep. Greg MacMaster (R-Kewadin), and once again by local officials.
According to a Jan. 17 letter, from Michigan Attorney General Office Chief Legal Counsel Matthew Schneider to Charlevoix County Prosecuting Attorney Allen Telgenhof, the State Operations Division, which handles municipal matters, made numerous findings, determining ultimately that it would be a violation of both the City of Charlevoix Charter and the Michigan Incompatible Public Offices Act (IPOA) of 1978 if Sullivan attempted to hold both offices simultaneously.
“This matter first came to the attention of this office pursuant to a request for an opinion from Representative Greg MacMaster. But it became unnecessary to address the issue as both the county attorney and the city attorney concluded in an Oct. 17, 2013, letter that the positions of county commissioner and city clerk were incompatible due to the provision of election-related services by the county to the city, and other ongoing election-related responsibilities,” Schneider stated in the letter. “Despite the legal opinions issued at the local level, an existing county commissioner (Sullivan) was elected to serve as the City Clerk for the City of Charlevoix.”
He added, “You ask whether these two positions are incompatible, and note in your request that the individual set to serve in the dual positions maintains that the positions are compatible.”
Schneider’s letter further stated, “Subsequent to your request, this office was provided with a Dec. 20, 2013, memorandum prepared by local counsel further concluding that the city charter for the City of Charlevoix prohibits the city clerk, as an elected officer, from holding any other office. The attorney general’s office agrees with this conclusion.”
Charlevoix County Board of Commissioners Chairman Joel Evans (R-District 4) said he is pleased with the attorney general’s decision.
“Even if there wouldn’t have been conflict of interest, I think the public perception sees it as someone holding two jobs (where) there could be a conflict,” Evans said. “I think it was the right decision … and I think it will finally bring Larry (Sullivan) to a point of decision.”
He added, “I think it will work out for Larry and everyone else.”
According to the Charlevoix City Charter, no elected official shall hold any other office or city employment during the term for which elected.
“Applying these rules,” Schneider stated in his letter, “the city charter provision prohibits the city clerk from holding the additional office of county commissioner. The city clerk is an ‘elected official’ to whom the prohibition applies. Notably, use of the word ‘no’ and the broad term ‘elected official,’ makes plain that the prohibition applies to all elected officials, not just city council members. Thus, the clerk cannot hold ‘any other office.’”
According to the letter, while the Charlevoix City Charter does not define the term “office” it is reasonable to conclude that the statutorily authorized, county created, publicly elected position of county commissioner qualifies as an “office” for purposes of prohibition.
According to the IPOA, persons are prohibited from simultaneously holding two or more incompatible public offices.
“‘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: the subordination of one public office to another; the supervision of one public office by another; a breach of duty of public office.”
According to Schneider’s letter, county board of commissioner and city clerk offices are both subject to the IPOA.
There is a breach of duty situation, the IPOA states, when a public official holding two offices cannot “protect, advance, and promote the interests of both offices simultaneously.”
City of Charlevoix is responsible to Charlevoix County for election-related expenses such as printing city ballots; programming county-owned election equipment used by the city and the city clerk; preventative maintenance on county-owned election equipment used by the city; and the city’s portion of costs incurred by the county to publish unified county-wide public notices.
“In view of the divergent concerns of the city and county in these circumstances, the implementation of these county-city arrangements puts a person who is both county commissioner and city clerk in the position of being unable to protect, advance, and promote the interest of both offices simultaneously,” Schneider’s letter stated. “As a county commissioner approving the county’s furnishing of these services, the interest of the county commissioner would be to obtain reimbursement to the county of its costs regardless of the quality or time-line of the services provided. By contrast, the city clerk would have the interest of seeking the best possible service by the county at the lowest possible cost to the city for these voting machines and other elections matters, which are under the clerk’s control in administering elections held in the city’s precincts.”
Schneider further stated in the letter, “In this connection, there would be conflicting interests regarding the fairness of the applicable fee schedule and the justification for each billing. Similarly, there would be conflicting interests regarding the care and custody of the county election equipment located in the city.”
According to Schneider’s letter, it would be a breach of duty for a county commissioner to abstain from voting on and overseeing the county’s use of resources and personnel to provide election-related goods and services to the city, and that vacating one of the offices would be the only way to resolve such a dilemma.
“It is concluded that the requirements of the IPOA preclude the same person from being a Charlevoix County Commissioner and the City Clerk for the City of Charlevoix where the county presently provides election-related goods and services to the city at the city’s expense while looking to the city and the city clerk for the care and safekeeping of the county’s election equipment that is held and used by the city clerk for the administration of elections in the city,” Schneider stated in the letter.