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: examine the actual powers granted by the city's ordinance. The AG applied McCutcheon's test of independent authority to make public policy or final decisions, then compared it with this administrator's council-supervised duties. Its conclusion is tied to that position description.

For city councils reviewing an administrator position: the opinion considered limits on purchasing, council approval of the budget, council oversight of personnel policy, and the administrator's role in presenting recommendations. Check who has final authority under the ordinance.

For officials considering this combination: the AG found no statute that appeared to bar the appointed administrator position at issue. Footnote 2 contrasts Minn. Stat. § 375.09, subd. 1, which prohibits county commissioners from holding another elected office. The AG did not decide whether taking this city job would vacate the commissioner's seat because its answer to the incompatibility question was no.

For officials managing conflicts: the request identified county tax assessments, litigation between county and city, and city dependence on county resources as possible areas of concern. The AG suggested discussing foreseeable conflicts during hiring. Assess a specific decision using the Lenz factors, local personnel policies, and any applicable rule concerning county contracts under Minn. Stat. § 382.18.

Common questions

Q: Does this opinion mean any city administrator job is compatible with county commissioner service? A: No. The AG assessed a particular city's ordinance. A different grant of independent final authority would require its own analysis.

Q: Does the job title decide whether the role is a public office? A: No. The question is whether the position has independent authority under law to determine policy or make final decisions without another body's supervisory approval.

Q: Must the official withdraw from every matter involving the other jurisdiction? A: The opinion does not impose a blanket rule. It says participation in specific matters may be disqualified based on personal interest, assessed case by case under Lenz.

Q: Did the AG consider the administrator's bond requirement? A: Yes. It said the bond reflected financial authority and responsibility, but still concluded that this administrator's duties did not appear to meet the McCutcheon public-office test.

Q: What does Minn. Stat. § 382.18 add?
A: The AG cited the statute alongside Lenz. It prohibits a county official's direct or indirect interest in a contract or business to which the county is a party. The opinion did not apply the statute to a particular contract.

Q: Would accepting the city job leave a vacancy on the county board? A: The AG did not answer that conditional question because it concluded the city administrator role was not a public office inherently incompatible with county commissioner service.

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 opinion lists these earlier results before turning to the threshold question of whether each position is a public office.

The opinion says more recent AG decisions do not apply the Hilton incompatibility test where one position is employment or independent contracting rather than a public office. It cites an October 30, 2003 letter to Itasca County Attorney John Muhar among those decisions.

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. § 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 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)

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