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Topic: How can Prosecutor also be Corporation Counsel?
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untanglingwebs
El Supremo

CORPORATION COUNSEL
Prosecuting Attorney David S. Leyton, Corporation Counsel
Celeste D. Bell, Chief Assistant Prosecuting Attorney-Civil Division
Brian D. MacMillan, Assistant Prosecuting Attorney-Civil Division

100 Courthouse
900 S. Saginaw
Flint, MI 48502

Phone: 810.257.3050
Fax: 810.257.2715


The Counsel is an attorney who serves as legal advisor to the Genesee County Board of Commissioners and all county departments, and acts on behalf of the County on civil matters.
Post Sat Sep 03, 2016 7:27 pm 
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untanglingwebs
El Supremo

Resoltion 5-169 passed by the Genesee County Commission on %-18-2015

The Board of Commissioners determined the Prosecuting Attorney would `be capable of providing proper legal representation to the county.

The resolution merged the former Corporation Counsel office into a civil division of the Prosecutors office. They also gave Leyton a pay raise of $45,000.

The two staff members of Corporation Counsel became Assistant Prosecuting Attorneys in the Civil division. Leyton also got one full time paralegal. The half-time administrative assistant went full time to purchasing in the county.All employees received the same pay and benefits.
Post Sat Sep 03, 2016 7:41 pm 
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untanglingwebs
El Supremo

Genesee County Prosecutor David Leyton, Clerk Michael Carr ask county attorney to represent them in fighting budget cuts

Print Ron Fonger | rfonger1@mlive.com By Ron Fonger | rfonger1@mlive.com
on September 14, 2011 at 4:56 PM




GENESEE COUNTY, Michigan -- Prosecutor David Leyton and Clerk Michael Carr want taxpayer-funded attorneys to represent them in fighting new budget cuts proposed today by the Board of Commissioners.

"I thought maybe they would have learned a lesson with (Register of Deeds Rose Bogardus)," Carr said. "I don't want to do this. I would much prefer to work out a deal where we don't lose people."


Commissioners proposed a $80.4-million budget today that would cut three positions from the offices of both Carr and Leyton -- six of 65 job cuts proposed in the spending plan.
Now, they already face the prospect of a legal fight with elected department heads for the second straight year.

Last year, Bogardus asked county Corporation Counsel Ward Chapman to represent her office in fighting budget cuts, a request he declined because he represents commissioners, the governing body for the county.

Instead, county taxpayers ended up paying Bogardus' attorney fees and commissioners restored some staffing to the register's office rather than continuing an expensive courtroom fight.

County board Chairman Jamie Curtis said Carr and Leyton are threatening to do the wrong thing.

"Taxpayers of Genesee County hired them to work to the best of their ability," Curtis said. "I know in my neighborhood, the taxpayers are sending a mandate: Scale back, give us a government we can afford."


Leyton would not discuss his letter to Chapman -- but a copy obtained by The Flint Journal says in part, "this new budget will not allow me to provide the constitutionally and statutorily mandated services required from my office with the level of staffing proposed by the budget for my office
"At this time, I am requesting that the Genesee County corporation counsel represent me and my office in this matter."

Both letters ask Chapman to respond to the requests within 72 hours "so I can seek other legal representation if necessary."

Leyton said this year's cuts come on top of last year's budget, which cut his staffing by 30 percent.

"They put me below a serviceable level. Now they are piling on," Leyton said.





Flintgal Sep 16, 2011
I agree that this is a tough situation. I also agree that not all county departments should share the budget cuts equally. I find that Mr. Leyton and his department can do only so much without man power. Every day there are stories about disgusting crimes and it will only get worse if we don't have the resources to prosecute. Perhaps Mr. Leyton's department could be reduced if we did our part as a community and kept the criminals from even being criminals. I read the responses from so many but how many are part of a neighborhood watch and if their area is relatively safe, do they go and help out other areas that need support? How many of you good bloggers volunteer at shelters or give your time to youth who are at risk? If we did more as a community, then maybe we wouldn't need to worry about our county's prosecutorial budget but since we are failing in this regard as a community, then let's support Mr. Leyton and his team. I also don't get Misty4flint. I've read the blogs and they seem a bit out of context with what is going on here. Mr. Leyton seems to be at work whenever I'm checking. Why the problem with a fundraiser for the next campaign? Aren't local elections in the not too distant future? Frankly, Leyton was severely outspent for the state AG race by the man who is now the state AG. It is a testiment to Leyton's work history and ethics that he did as well as he did. It's also interesting that you discuss some bully strategies around the court house but if I remember correctly from our local fish wrapper, this isn't about Leyton's immediate family at all and wasn't the local judge thrown off the case by a higher judge for doing stuff on the "thinnest of grounds"? So...who's really the bully?



misty4flint Sep 15, 2011
"Commissioners proposed a $80.4-million budget today that would cut three positions from the offices of both Carr and Leyton -- six of 65 job cuts proposed in the spending plan."

3 employees from Leyton's office... that means 3 less people to forward his calls to his cell phone while he's up north on salaried "work" days in his Lake Michigan fancy condo. it means 3 less employees to take his work load while he run for the next job, cause this one is set to expire. Leyton had his birthday fundraiser with gifts to imself last night. Why? he lost the AG race. if he's collecting cash from folks, it means he's gearing up for somethin new, which would be a shame for whoever is gets duped into voting for him. However, IT MEANS if he loses 3 employees, it will be harder to spend time out of the office, which he enjoys not being there. Have you ever seen how BIG his name is on the wall of the court house. Do they do that in other cities?

Isn't it interesting, that Leytons tactics with the city is "an expensive legal battle with the city." Thus, Leyton played a legal "game" to BULLY and GUILT his opponents to cave. interesting it appears Leyton's family is doing the exact SAME strategy in probate court proceedings to prevent help for their elderly family. Very very interesting, don't you agree he is abusing his opportunities?

Leyton has probably never really worked a full day in his life. He had a full time job as Clerk while really only working part time and working part time as an individual lawyer. That came out in the blogs during the election.

Does the prosecutors office actually has it's employees clock in. Go get those records!!! Oh...there aren't any??? Leyton is probably a very poor manager. He and his employees don't really put in 40 hour weeks, or they very well would be able to be "serviceable."


melody1964 Sep 15, 2011
This is what happens when you have a bunch of little "fiefdoms" throughout the county run by persons elected politically by the people. Those who are elected to lead the county as a whole (the commisioners) are then pitted against the career politicians, also elected by the people, who run their respective departments. Keep in mind that those department heads are also employees of the county whose ongoing employment is dependent on them staying in political favor with the citizens. Which elected position rules in such a case, those with overall responsiblity or those with department responsiblity? This is a question that for some dumb reason we seem to think makes sense for county government alone to have to answer. It's long past time to defuse that argument completely and go to a county manager form of government.

These kind of turf ways are the strongest argument to date for a county manager form of government. The Clerk, the Register of Deeds, the Sheriff, Drain Commissioner and the Prosecutor are administrative positions, and should be filled that way. It's ridiculous that we let politics determine who fills administrative positions. Let's be serious, who really cares about the political affiliation of a the person who shuffles real property records other than the political parties. Does a democrat do that better than a republican?. What earth shaking policy decisions that really impact the county are going to come out of the clerk or register's positions? Does the average citizen even know who is best suited for that job, no, we just end up voting for the name we know (which is our only choice as the parties dictate who runs for county office). That's why we have a county treasurer (a term limited state rep\sen who needs employment) who doesn't actually have a finance background, but doggone it, she sure is a nice person and boy is she politically connected. Again, not sure how that qualifies you for a Treasurer position, but since the Ass't Treasurer actually runs the department, I guess it doesn't really matter does it?

The citizens just want effective and efficient government, and the level of politics is ALWAYS inversely proportional to those two objectives. We need less baby kissing and parade walking politicians and more people all pulling the same way. That will improve both efficiency and effectiveness.
Post Sat Sep 03, 2016 7:54 pm 
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untanglingwebs
El Supremo

I am not a lawyer, but this seems to me to be Incompatible offices and Leyton should give up one of them.

The Board of Commissioners decide his budget, and salaries within his office. He contacted Corporation counsel for legal representation when he wanted to sue the county. As I see it the two offices appear to be in conflict.
Post Sat Sep 03, 2016 8:04 pm 
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untanglingwebs
El Supremo

MCL 15.182; MSA 15.1120(122), provides, with certain exceptions not applicable here, that "a public officer or public employee shall not hold 2 or more incompatible offices at the same time." The term " 'incompatible offices,' " as used in this provision, is defined by MCL 15.181(b); MSA 15.1120(121)(b), as follows:

"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.
Post Sat Sep 03, 2016 8:14 pm 
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untanglingwebs
El Supremo

Leyton ran for the office of Michigan Attorney General, so if this issue came up, did anyone discuss it publicly or in an interview?
Post Sat Sep 03, 2016 8:16 pm 
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untanglingwebs
El Supremo

CHAPTER 52 THE INCOMPATIBLE OFFICES ACT AND OTHER ...
annarborchronicle.com/wp-content/.../Chapter_52_Incompatible_Offices_Act.pdf
situations in which conflicts of interest may arise, as well as to discuss the four primary statutes governing such situations (the Incompatible Public Offices Act, the ...


Last edited by untanglingwebs on Sun Sep 04, 2016 3:28 pm; edited 1 time in total
Post Sun Sep 04, 2016 3:22 pm 
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untanglingwebs
El Supremo

THE INCOMPATIBLE PUBLIC OFFICES ACT1
Incompatible Offices Defined
The Michigan Incompatible Public Offices Act (“IPOA”), enacted in 1978, prohibits a
public officer or public employee from holding two or more “incompatible offices” at the same
time.2
M.C.L. §15.181(b) defines “incompatible offices” as follows:
“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.
Although this proscription appears simple in concept, it is important to undertake a
careful analysis of the text of the statute in order to thoroughly understand the nuances of its
application.
Who Is Covered?
In what can only be described as a confusing bit of drafting, the IPOA refers to three
different classes of individuals when setting forth its statutory proscriptions – “public
employees,” “public officers,” and “public officials.” The terms “public employee” and “public
officer” are defined by the statute:
“Public employee” means an employee of this state, an employee
of a city, village, township, or county of this state, or an employee
of a department, board, agency, institution, commission, authority,
division, council, college, university, school district, intermediate
school district, special district, or other public entity of this state or
of a city, village, township, or county in this state, but does not
include a person whose employment results from election or
appointment.3

“Public officer” means a person who is elected or appointed to any
of the following:
(i) An office established by the state constitution of 1963.
1
M.C.L. §§15.181, et seq.
2
M.C.L. §15.182.
3
M.C.L. §15.181(d)
Post Sun Sep 04, 2016 3:28 pm 
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untanglingwebs
El Supremo

(ii) A public office of a city, village, township, or county in
this state.
(iii) A department, board, agency, institution, commission,
authority, division, council, college, university, school
district, intermediate school district, special district, or
other public entity of this state or a city, village, township,
or county in this state.4
The term “public official” is not defined in the statute. However, the Michigan Supreme
Court has explained that the term “public official” can refer to either a “public officer” or a
“public employee,” effectively merging the three terms into two.5
When Does an Incompatibility Exist?
Having determined which positions are covered by the statute, the question becomes
whether an individual’s service in two positions rises to the level of incompatibility prohibited by
the statute. In a rare decision interpreting the IPOA, the Michigan Supreme Court recently
addressed this issue and, in so doing, significantly limited the statute’s applicability.
In Macomb County Prosecuting Attorney v. Murphy,
6
the court considered “whether [the]
defendant violated the incompatible offices act 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.”7
In analyzing the incompatibility
of the offices under the statute, the court found that, although both positions were covered by the
Act, the offices were not 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.”8
In clarifying what is required for a finding of
incompatibility, the court specifically stated that the existence of a potential breach of duty (as
opposed to an actual breach of duty) is insufficient to trigger the statute’s prohibitions, saying:
Under the statute, incompatibility exists only when the performance of the
duties of one of the public offices “results in” one of the three prohibited
situations. By using the phrase “results in,” the Legislature clearly
restricted application of the statutory bar to situations in which the
specified outcomes or consequences of a particular action actually occur.

4
M.C.L. §15.181(e).
5 Macomb County Prosecuting Attorney v. Murphy, 464 Mich. 149, 158, 627 N.W. 2d 247 (2001)
(holding that the phrase “‘public offices held by a public official’ encompasses positions of public
employment”). See also Detroit Area Agency on Aging v. Office of Services to the Aging, 210 Mich. App.
708, 713, 534 N.W. 2d 229 (1995) (stating that M.C.L. §15.181(b) “applies to public offices held by both
public officials and public employees”).
6
464 Mich. 149, 627 N.W. 2d 247 (2001).
7 Id. at 151.
8 Id.
Post Sun Sep 04, 2016 3:31 pm 
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untanglingwebs
El Supremo

That a breach of duty may occur in the future or that a potential conflict
exists does not establish incompatible offices. The official’s performance
of the duties of the offices must actually result in a breach of duty.9

(emphasis in original).
This interpretation of incompatible offices is narrower than the interpretations offered in
previous cases and Attorney General opinions, many of which held that offices were
incompatible if there existed even the potential for a conflict. Thus, in considering opinions
rendered prior to May 2001 (and in utilizing the tables provided below), it is important to keep in
mind that, under the Macomb County decision, offices previously held to be incompatible may,
in fact, be compatible within the meaning of the statute if no actual conflict exists between their
duties.
Curing a Potential Incompatibility
The plain language of the IPOA flatly prohibits a public officer or employee from
simultaneously holding incompatible offices. However, case law interpreting the statute has
made clear that, in situations where a potential (not actual) conflict exists, the individual holding
the two positions may be able to cure the potential incompatibility.
In Macomb County, the Michigan Supreme Court affirmed that “a breach of duty arises
when a public official holding dual offices cannot protect, advance, or promote the interest of
both offices simultaneously.”10 Specifically, the court spoke to what an individual must do when
he or she faces the possibility that the two public bodies with which he or she is involved may
enter into contractual negotiations (a potential conflict). The court held that a public official
“may avoid breaching the duty of loyalty by not participating in the preliminary consideration of
a possible agreement” between the two entities.11 By the court’s reasoning, abstaining from such
discussions would prevent an actual conflict from developing, thereby allowing the individual to
continue to serve in both capacities. Implicit in the Macomb County decision, however, is a
requirement that the individual resign one of the public positions should the two public bodies
actually enter into a contractual relationship (or develop a similar conflict).
What the Act Does Not Prohibit
In addition to announcing the general rule that an individual cannot hold two or more
incompatible offices at the same time, Section 3 of the Act provides specific, narrowly-drawn
exceptions for certain public offices.12 Section 3(1) allows for a public officer or public
employee to also serve on the governing board of an institution of higher education.13 However,

9 Id. at 162-163.
10 Id. at 164.
11 Id. at 166.
12 M.C.L. §15.183.
13 M.C.L. §15.183(1).
Post Sun Sep 04, 2016 3:33 pm 
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untanglingwebs
El Supremo

an individual cannot simultaneously serve on two such governing boards, and cannot be
employed by an institution of higher education while serving on its governing board.14
Section 3(2) of the Act allows an individual to be a member of a school board in one
district while serving at the same time as the superintendent of another school district. Section
3(3) allows a public officer or employee of a city, village, township, school district, community
college district, or county to simultaneously serve as a member of the board of tax increment
finance authority, a downtown development authority, a local development finance authority, or
a brownfield redevelopment authority.
Section 3(4) makes special exceptions for public officers or public employees of a city,
village, township, or county having a population of less than 25,000. In such a local unit of
government, an individual can serve both as a public official in one position and:
(a) as emergency services personnel, either with or without
compensation; or
(b) as a firefighter in the same municipality, as long as the individual
is not a full-time fire fighter, a fire chief, or a person who
negotiates with the municipality on behalf of the firefighters.
Section 3(4) further allows the governing body of such a local unit of government to
authorize a public officer or public employee to perform other additional services for the unit of
local government, either with or without compensation, without creating an incompatibility
problem.
Section 3 also explicitly limits its own application. Although it allows public employees
to serve in two otherwise incompatible positions, Section 3 “does not relieve a person from
otherwise meeting statutory or constitutional qualifications for eligibility to, or the continued
holding of, a public office.”15 Further, it does not sanction activity constituting a conflict of
interest prohibited by law or by the state constitution.16 Finally, Section 3 does not “allow or
sanction specific actions taken in the course of performance of duties as a public official or as a
member of a governing body of an institution of higher education that would result in a breach of
duty as a public officer or board member.”17
In addition to the explicit statutory exceptions provided in Section 3 of the Act, other
statutory provisions (outside the IPOA) may authorize the holding of two positions which
otherwise appear incompatible. For example, the Court of Appeals has held that no
incompatibility exists where the Drain Code18 specifically states that the “powers, duties and
functions of the public works commissioner and drain commissioner may be combined” and a
14 M.C.L. §15.183(1).
15 M.C.L. §15.183(5).
16 M.C.L. §15.183(6).
17 M.C.L. §15.183(7).
18 M.C.L. §280.21
Post Sun Sep 04, 2016 3:36 pm 
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untanglingwebs
El Supremo

person holds those positions.19 A similar statutory provision allows one member of a township
planning commission to also serve on the township’s zoning commission.20
Enforcement of the Act
The Incompatible Public Offices Act does not give rise to a private cause of action.
Rather, the Attorney General or a prosecuting attorney may bring an enforcement action in
circuit court.21 In addition, actions taken by a public officer or public employee serving in
incompatible positions are not made absolutely void by the Act. Instead, such action is voidable
at the court’s discretion. Finally, any judicial relief or remedy is limited to prospective operation
only.22
Interpretation and Application of the Act
Neither the Michigan Supreme Court nor the Court of Appeals has interpreted the Act on
many occasions. Rather, the majority of guidance in this area is found in numerous opinions of
the Attorney General. In total, the Attorney General has issued over 100 opinions that apply the
Act to very specific fact patterns, the most common of which are summarized below.23
Post Sun Sep 04, 2016 3:38 pm 
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untanglingwebs
El Supremo

he Incompatible Public Offices Act does not give rise to a private cause of action.
Rather, the Attorney General or a prosecuting attorney may bring an enforcement action in
circuit court.21 In addition, actions taken by a public officer or public employee serving in
incompatible positions are not made absolutely void by the Act. Instead, such action is voidable
at the court’s discretion. Finally, any judicial relief or remedy is limited to prospective operation
only.22


Do we trust our current Prosecuting Attorney or our Judicial system to address this issue?
Post Sun Sep 04, 2016 3:39 pm 
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untanglingwebs
El Supremo

This was in the story of Schutte announcing the appointment of Andy Arena, former Detroit FBI Chief from 2007 to 2012, and former Wayne county Assistant Prosecutor Todd Flood to investigate Flint's water crisis. Leyton could learn from this, but then he wouldn't have his extra $45,000 a year. Bogardus, Cherry, and Gleason have all sued or been sued by the County Commissioners. Is it right to have Leyton, who also threatened to sue the county over his budget, in charge of all such lawsuits?
-------------------------------------------------------------------------------------

"Schuette announced the inquiry Jan. 15, more than four months after a Virginia Tech researcher said the Flint River was leaching lead from pipes into people's homes because the water was not treated for corrosion.

Because the attorney general's office represents both the people of Michigan and the state government, Schuette said having the special counsel will help prevent conflicts between Schuette and his investigation team and those defending the governor and state departments against water-related lawsuits.

Lawsuits against Snyder and the state will be supervised by Chief Deputy Attorney General Carol Isaacs and Chief Legal Counsel Matthew Schneider. Schuette noted there was a similar effort during Detroit's bankruptcy case to avoid conflicts of interest."
Post Tue Sep 06, 2016 5:09 am 
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untanglingwebs
El Supremo

BOARD OF COMMISSIONERS
AUGUST 17, 2016
IX. UNFINISHED BUSINESS
X. NEW AND MISCELLANEOUS BUSINESS
XI. OTHER BUSINESS
Closed Session
1) to discuss trial or settlement strategy in the pending litigation
matter of Jabril Muhammad v. named deputies, case no. 14-12277,
2) to discuss written legal opinion of counsel related to case no. 16-3-086,
3) to discuss trial or settlement strategy in the pending litigation matter of
Garant v. Galajda, seventh Circuit Court No. 15-105023
Post Wed Sep 07, 2016 10:04 am 
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