Op. Atty. Gen. 358a3

INCOMPATIBLE OFFICES; COUNTY COMMISSIONER AND CITY
ADMINISTRATOR; City administrator position description did not reflect independent and
final decision-making authority and therefore did not meet criteria for a public office subject
to inherent incompatibility with another public office; local government units are best
positioned to assess actual and potential conflicts under their personnel rules and policies.

358a3

October 17, 2023

Brad Johnson
Anoka County Attorney
Government Center
2100 3rd Avenue, Suite 720
Anoka, MN 55303-5025

Re: Request for Opinion

Dear Mr. Johnson:

Thank you for your letter of September 12, 2023, which requests an opinion from this
Office on whether two public offices – county commissioner and city administrator for a city
within the county but outside the county commissioner’s district – are incompatible.

BACKGROUND

Your letter indicates an Anoka County commissioner is considering employment as a city
administrator in a statutory “Plan A” city 1 located within the county but outside the district
represented by the county commissioner. Your letter indicates you find no statutory bar to holding
both positions and presents the duties of each position for analysis of a potential conflict.

 The letter describes duties of a county commissioner as overseeing the county’s
management and administration, including managing the county budget and finances.

 The duties of the city administrator are described in the city’s code of ordinances. A partial
list of duties of city administrator as presented in your letter is as follows:

• Directing the administration of city affairs;
• Enforcing state laws, all city ordinances, and resolutions;
• Supervising the activities of all city department heads and personnel;

1
Your letter requests that the city not be identified.
445 Minnesota Street, Suite 1400, St. Paul, MN 55101-2131
Office: (651) 296-3353 • Toll Free: (800) 657-3787 • Minnesota Relay: (800) 627-3529
An Equal Opportunity Employer Who Values Diversity
Brad Johnson
Anoka County Attorney
October 17, 2023
Page 2

• Attending and participating in all meetings of the city council;
• Being responsible for the preparation of the city council agenda and
recommending to the city council measures as may be deemed necessary [for] the
efficient administration of the city;
• Overseeing the preparation of an annual budget and capital improvement plan;
• Overseeing all personnel matters of the city in conjunction with policies
established by the city council and negotiating terms/conditions of employee labor
contracts;
• Overseeing purchasing activities for the city;
• Coordinating city programs as directed by the city council . . . including
coordinating the activities of the city attorney and city engineer;
• Informing the city council on matters dealing with the administration of the city;
• Preparing and submitting to the city council for adoption an administrative code
of administrative procedure within the city; and
• Being bonded, at city expense, through a position or faithful performance bond
which will indemnify the city.

These and other provisions of the city code place some limits on the authority of the city
administrator. The purchasing authority listed above is limited to routine services, equipment and
supplies if the cost does not exceed $5,000. The city administrator position is responsible for
negotiating terms and conditions of labor contracts “for presentation to the city council.”

Your letter also describes situations in which decisions of the person holding both positions
may favor one jurisdiction over the other, such as equalized tax assessments made at the county
level, adversarial positions in litigation, and situations where the city is dependent on county
resources, such as for law enforcement.

QUESTIONS PRESENTED

1. Whether the position of city administrator is a “public office” such that holding
dual offices as both an elected county commissioner and appointed city
administrator for a city within the same county would result in inherent
incompatibility.

2. If the answer to question 1 is “yes,” whether acceptance of an offer of
employment and appointment as a city administrator by an elected and seated
county commissioner would result in a vacancy in the office of county
commissioner pursuant to Minn. Stat. § 375.101, subd. 3, or other applicable law,
and, if so, when such vacancy would be deemed to be effective.

3. If the answer to question 1 is “no,” whether potential conflicts of interest make
the positions inherently incompatible by the nature of the structure and duties
involved in each role and foreseeable conflicts regardless of whether the role is
Brad Johnson
Anoka County Attorney
October 17, 2023
Page 3

achieved by an appointed position or by elected office, and further whether a
vacancy would nevertheless result as described in No. 2 above.

SUMMARY OF CONCLUSION

Applying the criteria from McCutcheon v. City of St. Paul, 216 N.W.2d 137, 139 (Minn.
1974), it does not appear that the city administrator position as defined in the city code is a “public
office” subject to incompatibility with another public office. Anticipated conflicts of interest do
not necessarily disqualify the person from holding both offices, but must be evaluated on a case-
by-case basis and are more appropriate for determination at the county and local level.

ANALYSIS

Question 1. First, we agree that no statute appears to prohibit a county commissioner from
also serving as a city administrator. 2

The first question asks whether the two positions are inherently incompatible. We apply
the controlling common law authority, which remains State ex rel. Hilton v. Sword, 196 N.W. 467
(Minn. 1923). In that case the court held that public offices are incompatible when performance
of the essential functions results in “antagonism and a conflict of duty” such that one person cannot
discharge “with fidelity and propriety” the duties of both positions. Id. Accordingly, our opinions
going back over 100 years consider the compatibility of offices by examining the duties of each
office imposed by law.

These decisions include several findings that the county commissioner position is
incompatible with another position within county or city government. See, e.g., Ops. Atty. Gen.
358a3 (Dec. 26, 1972; director regional hospital district); 358e-9 (Sept. 12, 1973; soil and water
conservation district board); 358a3 (Nov. 29, 1976; housing and redevelopment authority board);
(Jul. 15, 1954; city council) 358e2 (Jul. 7, 1939; city assessor). In contrast, we found the positions
of town clerk and city utilities commissioner to be compatible with the position of county
commissioner. Ops. Atty. Gen. 358a3 (Apr. 25, 1967; utilities commissioner); 358e-6 (Sept. 16,
1944; town clerk).

However, in more recent decisions this office has not applied the incompatibility analysis
from Hilton when the person is acting as an employee or independent contractor rather than
holding a public office, the duties of which are set out in statute or ordinance. See, e.g., Letter to
John Muhar, Itasca County Attorney (Oct. 30, 2003) (citing Ops. Atty. Gen. 358e-3 (Aug. 18,
1982); 358e3 (July 29, 1997); copy enclosed). In other words, for two positions to be considered
inherently incompatible, each must be a public office as opposed to mere employment. The
Minnesota Supreme Court explained the appropriate test for the distinction is whether the position
reflects “independent authority under the law, either alone or with others of equal authority, to

2
Compare Minn. Stat. § 375.09, subd. 1 (county commissioner may not hold other elected office).
Brad Johnson
Anoka County Attorney
October 17, 2023
Page 4

determine public policy or to make a final decision not subject to the supervisory approval or
disapproval of another.” McCutcheon v. City of St. Paul, 216 N.W.2d 137, 139 (Minn. 1974).

The duties of a county commission are set out in Chapter 375 of Minnesota statutes, which
authorize the commission to make final decisions regarding issues of public policy. See, e.g.,
Minn. Stat. § 375.18, subds. 1, 2 (authorizing county board to examine and settle accounts,
demands and causes of action, issue orders, and manage property and funds). The position of
county commissioner, which requires making such decisions with others of equal authority, is
therefore a public office.

As to the position of city administrator, the city at issue herein has established it by
ordinance as the chief administrative officer of the city, responsible to and selected by the city
council. Notably, the city code requires that the position be bonded, which reflects a level of
financial authority and responsibility. See Op. Atty. Gen. 358g (Sept. 18, 1945) (noting that if the
city attorney is not put under bond and does not take oath of office the position is not incompatible
with legislative office).

However, the ordinance establishes limits on the city administrator’s spending authority
and requires oversight of many city administrator duties by the city council. For example, the city
administrator recommends employment or removal of city department heads and personnel and
measures necessary for the efficient administration of the city. The city administrator maintains
financial policies within the scope of an approved budget and capital program and oversees
personnel matters in conjunction with policies established by the city council.

The position of city administrator as set forth in the municipal code does not appear to meet
the criteria of McCutcheon v. City of St. Paul, of exercising independent and final decision-making
authority. See also, Jewell Belting Co. v. Village of Bertha, 97 N.W. 424, 425 (Minn. 1903)
(holding merely ministerial functions may be delegated to an officer, but exercise of judgment and
discretion must be performed by the village council); Op. Atty. Gen. 471f (Oct. 24, 1961) (holding
village council lacks power to delegate authority to village administrative officer). Accordingly,
we conclude that the city administrator does not hold a public office that would be inherently
incompatible with service as a county commissioner.

Question 2. Because the answer to question 1 is not yes, we do not answer the question
regarding whether acceptance of an offer of employment for city administrator results in a vacancy
in the office of county commissioner.

Question 3. Your letter requests further consideration of whether potential conflicts of
interest serve to make the two positions incompatible. As reflected in our pre-McCutcheon
opinions noted above, there is clearly the potential for conflict between the interests of individuals
employed by or appointed to positions in cities with service as county commissioner.
Brad Johnson
Anoka County Attorney
October 17, 2023
Page 5

However, as we have noted previously, we are not aware of any controlling authority
providing that the existence of a conflict or potential conflict of interest disqualifies a person from
taking or holding an office. See Letter to Mary D. Tietjen, Dec. 13, 2006 (considering
incompatibility of superintendent of public works and position on city council; copy enclosed).
Instead, a county commissioner employed as city administrator may be disqualified from
participation in specific matters in which they are personally interested based on that employment.
As we have cited in many prior opinions, conflicts of this nature are determined on a case-by-case
basis applying the factors from Lenz v. Coon Creek Watershed District, 153 N.W.2d 209 (1967).
In that case the court stated:

The purpose behind the creation of a rule which would disqualify public officials
from participating in proceedings in a decision-making capacity when they have a
direct interest in its outcome is to insure that their decision will not be an arbitrary
reflection of their own selfish interests. There is no settled general rule as to
whether such an interest will disqualify an official. Each case must be decided on
the basis of the particular facts present. Among the relevant factors that should be
considered in making this determination are: (1) the nature of the decision being
made; (2) the nature of the pecuniary interest; (3) the number of officials making
the decision who are interested; (4) the need, if any, to have interested persons make
the decision; and (5) the other means available, if any, such as the opportunity for
review, that serve to insure that the officials will not act arbitrarily to further their
selfish interests.

Id. at 219 (footnote omitted); see also, Minn. Stat. § 382.18 (prohibiting county officials from
having direct or indirect interest in any contract or business to which the county is a party).

We expect that potential conflicts are matters the city and city administrator will
contemplate and discuss as part of the hiring process. It may be that, although the positions are
not legally incompatible, it is not practically possible for one person to perform both without actual
conflict of interest, including on matters of significance. However, because conflicts must be
evaluated based on individual facts and circumstances, and local government units are best
positioned to assess actual and potential conflicts under their personnel rules and policies, whether
an official has a personal financial interest in a particular matter before the county is beyond the
scope of this Office’s opinion-rendering authority. See, e.g., Op. Atty. Gen. 90e-5 (May 25, 1966).
Brad Johnson
Anoka County Attorney
October 17, 2023
Page 6

Thank you again for your inquiry, and I hope this opinion is helpful to you.

Sincerely,

KEITH ELLISON
Attorney General

Encl.: Op. Atty Gen. 90e (May 25, 1966)
Op. Atty Gen. 471f (Oct. 24, 1961)
Op. Atty Gen. 358g (Sept. 19, 1945)
Ltr – 2003 Itasca County (John Muhar)
Ltr – 2006 City of Mound (Mary Tietjen)

|#5608221-v1