Analysis: Brenda Jones not barred from holding dual offices

Melissa Nann Burke
The Detroit News
Detroit Council President Brenda Jones.

An analysis by Detroit's Law Department says nothing in federal rules, state law or the city charter expressly prohibits Council President Brenda Jones from serving in Congress while keeping her local post, but federal employee rules pose complications. 

For instance, rules for federal employees make it likely "impossible" that her city staff may be employed by Jones' federal office, according to the analysis.

"This concern may pertain to the Council President, too," Detroit Corporation Counsel Lawrence T. García wrote in a memo he had delivered to the City Council on Monday. 

"Practically speaking, the logistics involved in holding dual offices would be complicated and they should be deliberately considered in advance of taking office and often thereafter," García continued. 

"With that said, my review has identified no ban against a member of Congress holding local office, and the House's own publication suggests it is possible." 

Jones, a Democrat, was elected last week to serve out the remaining two months of former U.S. Rep. John Conyers Jr.'s term in Congress. 

García said Jones' term in the U.S. House would start after the general election results are certified in mid-November and conclude Jan. 2, 2019.  

Jones lost a separate primary election for the full two-year term to former state Rep. Rashida Tlaib, who would be sworn in as congresswoman for the 13th District on Jan. 3, 2019. Tlaib faces no Republican opponent in the November election.

The question that city and party officials are asking is whether Jones would need to resign her council seat in Detroit to serve what amounts to 16 legislative days in the U.S. House. 

Jones has not said what she intends to do. Her campaign said in a statement Monday that last week's primary results have "severely damaged the public's confidence that the electoral process was fair." 

"President Jones is still reviewing the facts because there are many moving parts and receiving feedback from community stakeholders as well as local, state and national elected officials," the campaign statement said. 

The campaign said, to avoid any appearance of a conflict of interest, Jones has asked Council President Pro Tem Mary Sheffield to head the council's process as it relates to issues involving the primary election results. 

García said there are no provisions in Detroit's charter or the rules for council members that speak directly to the issue of holding dual offices. 

From the state perspective, García found no "automatic incompatibility" between the two offices in question under Jones' specific circumstances. 

That's largely because of the timing of Jones' term in Congress falling during the holiday season when City Council will be in recess and Congress will be "fairly inactive," García wrote. 

He determined that Michigan's Incompatible Public Offices Act doesn't appear to apply to Jones because its definition of "public officer" does not include federal officials. 

Even if it does apply, García said it's "conceivable that Council President Jones could avoid violating the IPOA by not performing any function that constitutes a breach of duty." 

He noted a 2001 state court ruling that found that the potential for a breach to occur in the future or that a potential conflict exists "does not establish incompatible offices."

A suit brought under the IPOA would have to be initiated by the Wayne County prosecutor or state Attorney General in the event of an "actual breach of duty," García wrote.

"Given the length of time involved, the prospect of litigation as a means of putting Council President Jones out of office in Detroit seems unlikely," he concluded. 

"No one knows what kinds of issues will arise in the U.S. Congress or City Council toward the end of this year," García added.

"Until a breach of duty occurs, there is no incompatibility between the two offices at issue, and it seems unlikely that Michigan's IPOA would apply to public office outside of Michigan."

García found "no categorical prohibition" under federal statute or House rules against a member of Congress holding local office, but Jones should consult with the House parliamentarian and the Ethics Committee, he said. 

García highlighted a section of the House Ethics Committee website that says: "While the Constitution does not prohibit House members from holding state or local office, the House has determined that 'a high state office is incompatible with congressional membership, due to manifest inconsistency of the respective duties of the positions.' "

The House Ethics website also says that "any House member considering holding a state or local office should first consult with the Standards Committee and, when there may be a question of whether the office involved is a 'high state office,' the House parliamentarian." 

The House Ethics Committee declined to comment Monday on whether Jones has contacted the committee about her situation. 

García also highlighted the rules Congress has requiring all federal employees who enjoy full-time employment to work full-time for the federal government. It's unclear whether those rules apply to members of Congress.

"It should be noted that many rules for federal employees would make it difficult for a member of Congress to have staff employed by both offices," García wrote. 

Those rules also generally prohibit employees from using federal resources to conduct any business or activity that does not serve the federal government's function or purpose, he said.