Is it legal for a township trustee to be employed as the director of the local transportation authority? Is it good policy?
Those questions were at the center of an intense debate at last week’s Oxford Township Board meeting.
At issue, Trustee Pat Fitchena was appointed interim executive director of the North Oakland Transportation Authority by its board Jan. 15. Her interim appointment (which lasts up to 90 days, is paid $20,000 annually and requires 24 hours work a week) is slated to end April 15, however, Fitchena has indicated she wants the job in a permanent capacity.
Fitchena’s appointment was “pending (NOTA) obtaining a formal legal opinion as to the propriety of a member of the Oxford Township Board of Trustees serving as an employee of NOTA,” according to the minutes of the Jan. 15 meeting.
A March 8 letter from the Orion Township Supervisor Gerald Dywasuk to NOTA Chairman Dan Alberty, treasurer of Addison Township, contends an opinion from the Orion attorney states it is illegal – a violation of the Incompatible Public Offices Act – for Fitchena to be both township trustee and NOTA director.
Supervisor Dywasuk told this reporter the opinion letter was requested by Orion Township Treasurer Jim Marleau, who sits on the NOTA board. The letter has not been released to any of the NOTA governments or the media because it’s classified attorney/client privilege.
Supervisor Dywasuk’s letter stated the opinion is based on the case of Oakland County Prosecutor v. Scott (1999), in which it was found that is was legally incompatible for a township trustee to be employed as a deputy clerk for a district court, which is financed by the township she serves as an elected official.
“Our concern is such that, if the proposed candidate (Fitchena) is hired and does not vacate her Oxford Township Trustee position, we will inform the Oakland County Prosecutor’s Office,” Supervisor Dywasuk wrote. “Please understand that we do not have a personal issue with the proposed candidate; we are just very uncomfortable with her performing both roles for the same reasons stated in the Scott case. If she were to resign her position as Oxford Township Trustee, we have no problem with her selection as Director of NOTA.”
However, an opinion letter prepared by Oxford Township Attorney Chris Kaye concluded Fitchena’s dual service is “not precluded by the Incompatible Public Offices Act,” but “may create a conflict of interest, such that, while the trustee could continue to serve in both positions, he or she should abstain from township board votes on the NOTA budget.”
Kaye explained that incompatibility of public offices and conflict of interest are “two distinct areas.” The first involves one person holding two or more incompatible public positions (one office subordinate to another, one office supervised by another, or there’s a breach of duty of public office) whereas the second involves a “private financial interest someone might have.”
“We are entirely open to being proven wrong on this,” Kaye said of his legal opinion. “I’m very confident in our opinion. I stand by it. But we are certainly open to having someone say, ‘No, you’re wrong and here’s why.’”
Kaye noted the attorneys for the villages of Oxford and Leonard and Addison Township (the other communities who participate in NOTA) expressed their agreement with his opinion letter.
“I have no problem with her (Fitchena) role as NOTA Director while sitting on (the) Board of Trustees of Oxford Township,” wrote attorney Robert Bunting, who represents Addison Township and Oxford Village, in a Feb 2 handwritten note.
The “critical issue” in this situation, according to Kaye, is Article 7, Section 28 of the Michigan State Constitution, which deals with the formation of interlocal authorities or intergovernmental bodies, such as NOTA.
The sections states, “An officer or employee of the state or any such unit of government or subdivision or agency thereof, except members of the legislature, may serve on or with any governmental body established for the purposes set forth in this section and shall not be required to relinquish his office or employment by reason of such service.”
Kaye said this is a “constitutional exception to the rules that government incompatibility of offices and to a certain extent conflicts of interest.”
“At the end of the day, you don’t need to leave office because of incompatibility or conflict of interest that involved service on or with an intergovernmental authority,” Kaye told officials. “NOTA is an intergovernmental authority therefore service on or with NOTA does not constitute an incompatibility vis-a-vis service on the township board.”
“The Incompatible Public Offices Act is trumped by this constitutional provision,” Kaye explained. “That’s the cornerstone of our analysis.”
Kaye said the Scott decision cited by the Orion attorney does not apply to the Fitchena situation because the court case did not deal with an interlocal authority. The case deals with a district court, which was not formed pursuant to Article 7, Section 28 of the state constitution and therefore does not involve the constitutional exception.
However, Kaye noted that he has “not seen the opinion by the Orion attorney because that has been marked attorney/client privilege.”
“As long as that opinion isn’t released, we can only go by what they’ve said the reasoning is,” he said. “Not having that opinion in hand we can’t even do a real comparison and a real thorough analysis of what they’re saying. Everything I’m going to say tonight is going to be conjecture about what their analysis specifically is.”
As far as conflict of interest is concerned, which wasn’t addressed in the Scott case, based on Kaye’s research, a township board member may decline to participate in a board decision (i.e. abstain from voting) based on a conflict of interest. So, Fitchena could abstain from township board votes concerning NOTA, such as approving the budget.
But even if a township board member is told they can’t abstain, Kaye said there’s still the constitutional exception to “fall back on,” which states the officials shall not be required to relinquish their office or employment by reason of their service on an interlocal authority.
As far as the NOTA directorship being a paid position, Kaye said “there’s nothing in the law that distinguishes between paid and unpaid positions.” The Attorney General opinions Kaye’s researched “strongly suggest” a position that’s “ancillary” to the NOTA board (such as the executive director), even if it’s paid, falls under the constitutional exception.
Trustee Jerry Dywasuk, who also sits on the NOTA board, expressed his opposition to Fitchena doing both jobs. He cast the lone dissenting vote against her Jan. 15 appointment.
Dywasuk said it’s not a legal issue to him, it’s an ethical issue and a policy issue.
He explained that in the 2000 election the township received an opinion from its attorney stating then-trustee candidate Randy Praski couldn’t serve on the board because he was a member of the Oakland County Sheriff’s Department and the two positions were incompatible offices. It was also stated that should Praski be elected as a trustee, he could not abstain from voting on sheriff-related issues because that would constitute a breach of duty, the trustee said.
Dywasuk said he understood that to be the policy of the township.
The trustee went on to say NOTA was told it was “absolutely legal” for Fitchena to do both jobs at the Jan. 15 meeting. He said township attorney Gary Rentrop then told him on Jan. 20 it was illegal, but on Jan. 28 Rentrop said it was acceptable.
Kaye said the reason for the “back and forth” opinions was there is no controlling case law on this issue, which he described as a “difficult” and “vexing” issue. But he said “we’re very confident in the position we have.”
“Whether it is or isn’t legal is not my issue,” Dywasuk said. “There was one rule for Randy Praski and that should be applied to anybody whether you’ve been in here for 16 years or whether you’re running for this office, it should apply equally to everybody.”
“It just looks like there are separate rules for people who are outside this government and separate rules for people who have been inside for a long time.”
“To me, if it was illegal for Randy, it’s illegal for Pat. And that should be the policy,” the trustee said. “Whether it’s legal or not is not the point. It doesn’t mean it’s good policy.”
Kaye explained that in the Praski situation, as in the Scott case cited by Orion, “The sheriff’s department is not an interlocal entity under Article 7, Section 28 of the Constitution and that’s why that exception doesn’t apply (for Praski).”
Dywasuk’s other concern was why tax money was expended on attorneys to give an opinion on the Fitchena situation.
“If this is Mrs. Fitchena’s issue, I think she should be paying for it because she’s the one getting the job,” he said. “I don’t understand why we’re spending this money on legal issues. To me, it was never a legal issue in the first place. I don’t think it’s something the taxpayers of Oxford should be paying for. I think the issue could be settled at NOTA.”
Supervisor Bill Dunn said he requested the opinion letter because Fitchena sits on the township board. He said he would have not asked for one if she sat on the Addison or Orion boards.
“I think it’s important for our township board to know we’re going to make the proper call on this,” Dunn said. “We can’t do that without an opinion letter”
Dywasuk disagreed saying this is a “policy issue that should be set by the board” and the “wisdom” of which should be debated by officials, instead of relying on attorneys.
Dunn asked Kaye who’s decision is it to hire Fitchena as NOTA director.
Kaye replied that it’s NOTA’s decision whether or not they hire her and if they want to place any conditions on her hiring. He said the township board can pass resolutions on the issue, but it’s not really an issue for it to decide.
Dywasuk said that at a March 8 meeting of the NOTA personnel committee, it was recommended that if Fitchena wants the job as director, she should resign as township trustee.
However, according to Alberty, who attended that personnel committee meeting, no such recommendation was made. Alberty said the only thing that was decided was that the Oxford Township attorney should discuss the issue with the Orion Township attorney.
“I intend to continue on with my term as a trustee,” Fitchena told the township board. “If you can prove to me that I need to resign this position, I will be glad to do it. But until you can do that, I am going to remain a trustee on this board. And I still will be the interim director until NOTA makes a decision on what they want to do. The NOTA board will make the decision on who will be the next director.”
Fitchena said her serving in both positions is backed up by the attorneys of Oxford Township and Village and Addison Township, whereas the Orion attorney did not share his opinion in writing. “It was hearsay given to me by Mr. Dywasuk, Sr.,” she said.
Trustee Dywasuk made a motion for the township to stop spending money on the Fitchena issue unless approved by the board. His motion was approved by a vote of 6-0.