The Dexter Leader
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Conflict of interest?
Complaint calls validity of Scio trustee's candidacy into question
By Sean Dalton, Staff Writer
PUBLISHED: July 31, 2008
The legitimacy of one Scio Township incumbent's campaign could possibly be in question after a letter sent to various county and state government officials last weekend gets into officials' hands this week.
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Manchester Township resident Michael Brown alleges that Trustee Jim Dries, who is running for re-election in the Aug. 5 primary on the Team for Scio slate of candidates, has violated state statutes against serving in "incompatible" offices.
Dries was sworn into office for his township position on Nov. 20, 2004, and was hired by Washtenaw County as chief deputy County Clerk and Register of Deeds in January 2005.
That position is subordinate to County Clerk Larry Kestenbaum, who hired Dries and advised him that, in Kestenbaum's opinion, no conflict of interest existed.
Brown's letter begins by citing the "Incompatible Public Offices Act, MCL 15.181," which was passed in 1978.
According to the Act, "'Incompatible offices' are public offices held by a public official, which, when the official is performing the duties of any of his public offices, results in any of the following: the subordination of one public office to another, the supervision of one public office by another (and/or) a breach of duty of public office."
For the purposes of the Act, "public official" includes both elected officers and those hired to a position, such as in Dries' situation -being publicly elected and one being hired.
Dries has also served on the Washtenaw County Board of Public Works since 1986 and has been the Scio Board's liaison to the township Planning Commission since 2004.
He also serves as vice president of the Saginaw Hills Homeowners' Association Board, chairs Scio Township's Sewer Service Advisory Committee and is a member of the Loch Alpine Sanitary Authority Board.
"The third incompatibility test under the (Act) is whether there is a 'breach of duty of public office ... breach of duty under the (Act) occurs when a person holding dual offices would not be able to protect, advance or promote the interests of both offices simultaneously," Brown states in his letter.
"That may occur in a contract setting or other setting where the public official in question cannot simultaneously advance the interests of both public offices, thereby resulting in a breach of duty."
Brown's letter cites Dries serving on both the county Board of Public Works and the Scio Sewer Committee.
"Mr. Dries here is placed in incompatible public offices as he most certainly cannot protect, advance or promote the interests of both offices simultaneously."
Brown is the husband of Shannon Brown, who ran unsuccessfully against Pam Byrnes for the 52nd District House of Representatives seat in 2006.
The letter states that contracts and agreements existing between the county and township, along with a lawsuit that arose between the county and Augusta, Salem and Ypsilanti townships over Sheriff's Department contracts, further exacerbate the situation.
"This ongoing dispute demonstrates too well the competing County and Township interests," he states.
He goes on to conclude that Dries' "fiduciary loyalty" is in competition with keeping the township's public service costs low.
Response
Dries wasn't too worried about the complaint letter Tuesday afternoon, saying that "it is without any substance."
"It's politically motivated," he continued. "The gentleman who said this is a Republican spouse of Shannon Brown, who ran against Pam Byrnes ... it's coming from the slate of Republicans (Leadership for Scio) who are running as Democrats this year," Dries alleged.
Dries said that his group, "Team for Scio" would "(take) the high road and (has) been above board about not commenting or making personal attacks."
Dries says he will work with Kestenbaum in the coming weeks to deal with responses from the various recipients, which include Attorney General Mike Cox.
"We reviewed this issue initially when I brought (Dries) into the position," Kestenbaum said Tuesday. "The conclusion was that there was no problem."
He said he has discussed the matter with colleagues within the county, including county commissioners, who will render a report on Sept. 4 through the County Corporation Counsel.
"As far as I know, most of them are the same opinion I am," Kestenbaum said. "I believe that the Corporation Counsel will make some kind of report."
He also said that of the three criteria presented in the complaint, the first two don't apply at all.
"That is when you have office that is subordinate or superior to another," Kestenbaum said.
As for the third criterion dealing with "breach of duty," he said, "If you're on both sides of a contract, that would be a conflict, (but) if it's not you making the decision or negotiations on the contract then it's not a conflict."
To clarify, he described Dries' duties as being "basically in charge of the deeds office, in charge of supervising and managing employees recording deeds, indexing and all of the things that are involved with maintaining the deed records for the county, mortgages, liens."
According to Kestenbaum, Dries position is unique compared to other counties, in that his position is typically given to two different individuals.
"He is in charge of all functions with the register of deeds. I'm register of deeds but he is my subordinate who deals with those kinds of issues and functions," he said.
What's next?
District 10 County Commissioner Conan Smith was the first to respond to the newspaper regarding Brown's letter.
In his e-mail he addressed Curtis Hedger of the County Corporation Counsel advising him to look into the complaint further.
He also requested that County Commission Chairman Jeff Irwin review the complaint.
A call came into Kestenbaum's office regarding the report that would be rendered Sept. 4 during his interview with The Dexter Leader.
Smith could not be reached for comment by press time, although fellow recipient District 1 Commissioner Mark Ouimet discussed the matter in a general sense. He has had conversations with Dries and others at the county level.
"That is something Jim needs to work out with his (township) supervisor," Ouimet said. "Whether it's legal or not is a matter of legal opinion, and I'm not a lawyer."
He did point out that Manchester Township Supervisor Ron Mann also works as special assessment coordinator for Washtenaw County Drain Commissioner Janis Bobrin.
"There is certainly precedent for holding both (types of office)," Ouimet said. "But a judge would have to determine what the law is."
A spokesperson with Michigan Attorney General Mike Cox's office confirmed that the letter had been received, but said that it would take four to six weeks to process a response, and even then it would only be a non-binding opinion.
"We can only issue a legal opinion to three entities: state Legislature, department heads and, in some cases, county prosecutors," spokesman Matt Frendeuey said. "We do reply but we cannot give legal advice to them. It's an informational response."
He did say, without referring to this complaint in particular, "Typically the chief elections officer of the State of Michigan is the Secretary of State. We work with the Secretary on election law cases and we depend on the Secretary to refer cases to our office for review."
The complainant speaks
Brown denied the motivation being a "political hit job," in Dries's words, and said Tuesday that he is merely a politically astute citizen who saw a parallel between this situation and Saline Police Chief Paul Bunten's prospective run against Washtenaw County Sheriff Dan Minzey.
Bunten withdrew his candidacy in March due to due to a federal law, known as the Hatch Act, which prohibits law enforcement officials who handle federal grant money from seeking public office in partisan elections.
In Bunten's case, he asked the U.S. Office of Special Counsel to rule on whether the federal Hatch Act applied to him, and they sent a letter confirming that it did.
His only alternative would have been to resign from his post as police chief - a position he held since 1994.
Brown also opined on the responses of county officials, saying "these are state laws, not county laws."
He pointed out that Dries has abstained from votes in the past, which Dries confirmed, while also pointing out some of his votes that he was reassured by county officials would be legal.
"I voted on the 2005 (Washtenaw County Sheriff's) contract and it was appropriate," he said. "It was also a unanimous vote.
"I have (abstained) when I felt that there might be an appearance (of impropriety) and I've specifically stated that I wanted to avoid an appearance," he said.
"I last abstained on a vote to accept a settlement on a property sale that was in my neighborhood, because I'm on the neighborhood board.
"I abstained when the township agreed to contract with Washtenaw County Parks and Recreation on some property acquisitions, but I think I shouldn't have had to," Dries added.
He said in that case a conflict would have existed only if he were involved in contract negotiation as a member of the county board, parks and recreation, the sheriff's department or some other equivalent.
"The county clerk is different from (those)," he said. "I might only sign my signature on those contracts for filing. That is the role, and that is the role I would carry for (in those instances)."
But Brown isn't convinced and doesn't agree with Dries' accusation that he was selective in the case law cited in his complaint letter.
"(Dries) says sometimes (he) abstains from votes; well that right there, now he's not looking out for the township's best interests," Brown said.
"Of course Kestenbaum says it's not a big deal for Washtenaw County, but from the other side it's an issue for Scio.
"If you're not going to vote, why are you getting paid and why are you showing up for (township) meetings?
"You've got to remember that these people are paid something for meetings and it all adds up."
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