If a sitting Anoka County commissioner takes a job as the city administrator for a small Plan A city inside the same county but outside the commissioner's district, do the two positions automatically conflict, requiring one to give up the other?

Plain-English summary

An Anoka County commissioner was considering taking a city-administrator job in a small Plan A city inside Anoka County but outside the commissioner's own district. Anoka County Attorney Brad Johnson found no statute that flatly barred the dual-office combination and asked the Minnesota AG to evaluate it under the common-law incompatibility doctrine and conflict-of-interest principles.

The starting point of Minnesota's incompatibility analysis is State ex rel. Hilton v. Sword (Minn. 1923). That case held two public offices are incompatible when performing both produces "antagonism and a conflict of duty" such that one person cannot discharge "with fidelity and propriety" the duties of both. AG opinions over the past 100 years have applied that test by comparing statutory and ordinance-defined duties.

But the Hilton v. Sword test only fires when both positions actually qualify as "public offices." That threshold question gets its definition from the Minnesota Supreme Court's later decision in McCutcheon v. City of St. Paul (Minn. 1974), which says a public office reflects "independent authority under the law, either alone or with others of equal authority, to determine public policy or to make a final decision not subject to the supervisory approval or disapproval of another." Mere employment, even employment with significant responsibility, is not a "public office" under that test.

The county commissioner side was easy: the duties in Minn. Stat. Chapter 375 (especially § 375.18 on the county board's authority to settle accounts, issue orders, and manage property and funds) give the commissioner independent final-decision authority with others of equal authority. That's a public office.

The city administrator side was the close call. The city had established the position by ordinance as the chief administrative officer, reporting to and selected by the city council. The ordinance required the administrator to be bonded, which implied some financial authority. But the ordinance also tied almost every major decision back to the city council:
- Purchasing authority capped at $5,000 for routine items
- Labor contract negotiations "for presentation to the city council"
- Personnel oversight "in conjunction with policies established by the city council"
- Recommendations to the city council on department head employment and removal
- Budget administration "within the scope of an approved budget and capital program"

The AG applied McCutcheon and concluded the city administrator did not exercise independent and final decision-making authority. The position is administrative, not policy-making in the final-decision sense the case law requires.

That answered question 1: the two positions are not inherently incompatible because the city administrator is not a "public office" in the relevant sense. The AG declined to answer question 2 (whether acceptance of the administrator job would automatically vacate the commissioner seat) because it was conditional on question 1 being yes.

On question 3, the conflict-of-interest piece, the AG said that potential conflicts do not by themselves disqualify a person from holding both positions. The right approach is Lenz v. Coon Creek Watershed District (Minn. 1967), which sets a case-by-case test using five factors: (1) the nature of the decision; (2) the nature of the pecuniary interest; (3) the number of officials making the decision who are interested; (4) the need to have interested persons make the decision; and (5) the other means available, like review opportunities, to ensure officials do not act arbitrarily. The AG said these case-by-case determinations are for local government to handle under their personnel rules, not for the AG to decide in the abstract. Minn. Stat. § 382.18 (county officials' contracts) and the local ethics framework apply.

What this means for you

For county attorneys advising commissioners about outside employment: the McCutcheon test is the threshold filter. Read the position description and ordinance language carefully. If the outside role is reviewable or approved by a higher body for most or all significant decisions, it is "employment" not a "public office," and the common-law incompatibility doctrine does not bar the combination. If the role has independent final-decision authority on policy matters, it probably is a public office and the Hilton v. Sword duties-comparison kicks in.

For county commissioners considering outside employment in city or other local government: the answer depends on the specific position description and city ordinance, not on the job title. "City administrator" in one city might be a public office; in another it might not. Ask your county attorney to look at the actual ordinance.

For city councils designing administrator positions: this opinion gives you a roadmap to keep the position out of the incompatibility minefield. Keep policy decisions and final approval authority with the council. Use language that frames the administrator's role as recommendation, presentation, and execution under council policy. The Anoka County opinion city had this structure and benefited from it.

For ethics officers and county attorneys handling specific transactions: the Lenz five factors are the operating test. When a county commissioner who is also a city administrator participates in a county decision that affects the city, run through the factors. The opinion notes Minn. Stat. § 382.18 prohibits county officials from having direct or indirect interest in any contract or business to which the county is a party, which adds a statutory layer to the case-by-case analysis.

For city administrators thinking about running for county commissioner (or vice versa): the AG's footnote 2 mentions Minn. Stat. § 375.09, subd. 1, which prevents a county commissioner from holding another elected office. City administrator is not an elected office, so that prohibition does not apply. But if the city role were an elected one (some cities elect their administrators), the statutory bar would foreclose the question.

For practical conflict management in this specific kind of dual-role situation: the AG flags the categories that will come up — equalized tax assessments at the county level, adversarial litigation between county and city, city dependence on county law enforcement and other resources. Develop a recusal protocol at both bodies before the official starts the dual role. Document recusals contemporaneously. Have the council and county board each adopt a written policy on participation in cross-jurisdictional matters.

Common questions

Q: Does this opinion mean any city administrator job is OK for a county commissioner to take?
A: No. The conclusion is tied to this specific city's ordinance, which had built-in council oversight of most decisions. A different city might define the administrator's role with more independent final-decision authority and trigger the incompatibility doctrine.

Q: What if the position is "city manager" rather than "city administrator"? Does the title matter?
A: The AG's analysis turns on actual authority, not title. Some cities use "city manager" for what is functionally a city-council-supervised administrator, and others use "city manager" for a position with significant independent authority under Optional Plan B (Minn. Stat. § 412.601 et seq.). Plan B cities give the manager much more independent authority and would likely fail the McCutcheon test, making the role a "public office" subject to the incompatibility analysis.

Q: If the dual role is allowed, does the person have to recuse from any matter involving the other jurisdiction?
A: Not automatically. The Lenz factors are case-by-case. But practical guidance: if the decision involves the official's direct pecuniary interest (their salary, their employment terms) or significant financial impact on the other jurisdiction, recusal is the safe call. The AG specifically notes that "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."

Q: What about the bonding requirement? Doesn't that make the administrator a "public officer"?
A: The AG addressed this. Bonding reflects financial responsibility but is not itself dispositive of public-office status. Op. Atty. Gen. 358g (Sept. 18, 1945) noted that if a city attorney is not bonded and doesn't take an oath, the position is not incompatible with legislative office; the contrapositive doesn't automatically follow that bonding plus oath equals public office. McCutcheon's "independent and final decision-making authority" test still controls.

Q: Does Minn. Stat. § 382.18 (interest-in-contracts) apply to this situation?
A: Yes, as the AG notes at the end of the conflict-of-interest discussion. § 382.18 prohibits county officials from having direct or indirect interest in any contract or business to which the county is a party. If the city contracts with the county (for example, for law enforcement services from the county sheriff), the commissioner/administrator dual-role person would have an indirect interest and § 382.18 would apply. Local counsel needs to map out the contractual relationships and apply § 382.18.

Q: What about the "appearance of impropriety" concern? Is that enough by itself?
A: The AG does not treat appearance of impropriety as legally disqualifying. Specific conflicts under Lenz factors and § 382.18 are the legal tests. Appearance issues are matters for the local body's personnel and ethics rules, voter perception, and individual judgment.

Q: Could the city or the county adopt a rule that bars this combination even though the AG says the law doesn't?
A: Yes. A county or city can have stricter personnel and ethics rules than state law requires. The AG opinion answers the legal-incompatibility question; it does not override local policy choices.

Background and statutory framework

Minnesota's incompatibility framework comes from two main sources. The common-law test from State ex rel. Hilton v. Sword (Minn. 1923) asks whether the duties of the two offices produce antagonism. That test only applies when both positions are "public offices." McCutcheon v. City of St. Paul (Minn. 1974) defines public office: independent authority to determine public policy or make final decisions not subject to supervisory approval.

The conflict-of-interest piece comes from Lenz v. Coon Creek Watershed District (Minn. 1967), which set five factors for evaluating when a public official's interest disqualifies them from a particular decision: (1) nature of the decision; (2) nature of the pecuniary interest; (3) number of interested officials making the decision; (4) need to have interested persons making the decision; (5) review and other safeguards. This is a case-by-case test, not a categorical bar.

Statutory provisions also matter. Minn. Stat. § 375.09, subd. 1 prevents a county commissioner from holding another elected office, but a city administrator is appointed, not elected. Minn. Stat. § 382.18 prohibits county officials from having direct or indirect interest in any contract or business to which the county is a party. Local ordinances and personnel policies can add more.

Prior AG opinions on county commissioner compatibility produced a list of incompatible combinations (regional hospital district director, soil and water conservation district board, housing and redevelopment authority board, city council, city assessor) and a list of compatible combinations (town clerk, city utilities commissioner). The pattern is that policy-making roles with their own statutory or ordinance authority tend to be incompatible, while administrative or single-purpose roles tend to be compatible.

In more recent decisions starting with the October 30, 2003 letter to Itasca County Attorney John Muhar, the AG has limited the incompatibility analysis to combinations of two "public offices" as defined by McCutcheon. Pure employment (even significant employment) with another government does not fire the incompatibility doctrine.

Jewell Belting Co. v. Village of Bertha (Minn. 1903) supplies a related point: ministerial functions may be delegated, but exercise of judgment and discretion must be performed by the village council itself. That principle reinforces the view that an administrator whose discretion is hemmed in by council approval is not exercising the kind of independent authority that makes a position a "public office."

Citations and references

Statutes:
- Minn. Stat. § 8.07
- Minn. Stat. § 375.09, subd. 1 (county commissioner; no other elected office)
- Minn. Stat. § 375.18 (county board authority)
- Minn. Stat. § 375.101, subd. 3 (vacancies)
- Minn. Stat. § 382.18 (county official's interest in contracts)

Cases:
- McCutcheon v. City of St. Paul, 216 N.W.2d 137 (Minn. 1974)
- State ex rel. Hilton v. Sword, 196 N.W. 467 (Minn. 1923)
- Lenz v. Coon Creek Watershed District, 153 N.W.2d 209 (Minn. 1967)
- Jewell Belting Co. v. Village of Bertha, 97 N.W. 424 (Minn. 1903)

Prior AG opinions referenced:
- Op. Atty. Gen. 358a3 (Dec. 26, 1972; regional hospital district director)
- Op. Atty. Gen. 358e-9 (Sept. 12, 1973; soil and water conservation district board)
- Op. Atty. Gen. 358a3 (Nov. 29, 1976; housing and redevelopment authority board)
- Op. Atty. Gen. 358a3 (Jul. 15, 1954; city council)
- Op. Atty. Gen. 358e2 (Jul. 7, 1939; city assessor)
- Op. Atty. Gen. 358a3 (Apr. 25, 1967; city utilities commissioner)
- Op. Atty. Gen. 358e-6 (Sept. 16, 1944; town clerk)
- Op. Atty. Gen. 358e-3 (Aug. 18, 1982)
- Op. Atty. Gen. 358e3 (July 29, 1997)
- Op. Atty. Gen. 358g (Sept. 18, 1945)
- Op. Atty. Gen. 471f (Oct. 24, 1961)
- Op. Atty. Gen. 90e-5 (May 25, 1966)
- Letter to John Muhar, Itasca County Attorney (Oct. 30, 2003)
- Letter to Mary D. Tietjen (Dec. 13, 2006)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/358a3-20231017.pdf

Original opinion text

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 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;
• 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."

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 achieved by an appointed position or by elected office.

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. Compare Minn. Stat. § 375.09, subd. 1 (county commissioner may not hold other elected office).

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.

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. 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 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. 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.

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. 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.

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. 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. 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):

(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.

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.

Sincerely,

KEITH ELLISON
Attorney General