STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5900

May 13, 1981

COUNTIES:

Sheriff--outside employment of deputy sheriff

A sheriff may prohibit a deputy from engaging in the outside employment of operating a wrecker service in the absence of either a contrary county civil service commission rule or a collective bargaining agreement permitting such employment.

Honorable Donald H. Gilmer

State Representative

The Capitol

Lansing, Michigan

You have asked for my opinion regarding the power of county sheriffs to regulate supplemental employment of their deputies. Your letter indicates that one sheriff has issued a statement that:

Your question may be summarized as follows:

In MacLellan v Department of Corrections, 373 Mich 448, 451-452; 129 NW2d 861, 863 (1964), the dismissal of a state civil service employee for engaging in outside employment without departmental approval in writing was upheld. The Court stated that under the applicable civil service commission rule, requests for outside employment could be denied, even where there was no conflict or interference with state duties.

The Michigan Court of Appeals in Garchow v Civil Service Commission, 88 Mich App 384; 276 NW2d 597 (1979), held that outside employment by a state police officer as a polygraph examiner was permitted, in the absence of evidence showing that the work would compromise the officer's work in that field with the state, over Department of State Police objection where the civil service standard was expressed as follows:

OAG, 1975-1976, No 4975, p 432, 433 (April 26, 1976), considered the question of whether a city civil service commission may adopt reasonable rules on outside employment related to efficient service for members of the police and fire departments under 1935 PA 78; MCLA 38.501 et seq; MSA 5.3351 et seq, Sec. 14, and concluded:

Deputy sheriffs serve at the sheriff's pleasure as provided in pertinent part by 1846 RS, ch 14, Sec. 70, as amended; MCLA 51.70; MSA 5.863:

In Eaton County Deputy Sheriffs Association v Eaton County Sheriff, 37 Mich App 427, 429; 195 NW2d 12, 13 (1971), it was held that a sheriff may prohibit certain deputies from carrying concealed weapons while off duty. The Court reasoned that since the deputies serve 'at the pleasure' of the sheriff, the sheriff was thereby empowered to prescribe the rules and regulations whereby employment as a deputy may be continued.

One potential limitation on the sheriff's powers in this area would be a rule on outside employment adopted by a county civil service commission established for a sheriff's department under 1966 PA 298, as amended; MCLA 51.351 et seq; MSA 5.1191(101) et seq. Locke v Macomb County, 387 Mich 634, 638-639; 199 NW2d 166, 167-168 (1972), held that a sheriff's powers were subject to 1966 PA 298, supra, and the civil service commission created pursuant to that act. Other statutes limiting a sheriff's powers to hire and fire are listed in OAG, 1979-1980, No 5837, p 1127 (December 29, 1980).

In instances where the deputy sheriffs have organized as a collective bargaining unit under 1947 PA 336, as amended; MCLA 423.201 et seq; MSA 17.455(1) et seq, limitations on outside employment may be specified in a collective bargaining agreement. In OAG, No 4975, supra, it was stated that the imposition by a city civil service commission of a change in a rule governing outside employment on members of a collective bargaining unit in the police and fire departments without collective bargaining would be an unfair labor practice. Thus, for example, in Central Michigan University Faculty Association v Central Michigan University, 404 Mich 268; 273 NW2d 21 (1978), the Court found that the University had committed an unfair labor practice when it unilaterally adopted a teacher effectiveness evaluation program without bargaining with the certified collective bargaining agent of the faculty.

It is my opinion, therefore, that a sheriff may prohibit the department's deputy sheriffs from engaging in the outside employment of operating a wrecker service, subject to any applicable regulation of a county civil service commission under 1966 PA 298, supra, and further subject to the requirements of 1947 PA 336, supra, and any collective bargaining agreement adopted pursuant thereto.

Frank J. Kelley