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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6382

August 26, 1986

COUNTY COMMISSIONERS, BOARD OF:

Appointment of county commissioner by probate judge as conservator or guardian

A county commissioner is not precluded by MCL 46.30a; MSA 5.353(1), from appointment as a conservator or a guardian by a probate judge of the same county. OAG, 1941-1942, No 23324, p 569 (April 9, 1942), and OAG, 1947-1948, No 0-5219, p 115 (December 6, 1946), are superseded.

Kraag C. Lieberman, Esq.

Charlevoix County Prosecuting Attorney

County Building

Charlevoix, MI 49720

You have requested my opinion on the question whether MCL 46.30a; MSA 5.353(1), prohibits a member of a board of county commissioners from accepting appointments from a probate judge to serve as a conservator of the estates of incompetent and elderly/physically infirm persons pursuant, presumably, to MCL 700.461(b) and (c); MSA 27.5461(b) and (c), and MCL 700.470(1)(h); MSA 27.5470(1)(h).

MCL 46.30a; MSA 5.353(1), provides, in pertinent part:

"(1) A member of the county board of commissioners of any county shall not be eligible to receive, or shall not receive, an appointment from, or be employed by an officer, board, committee, or other authority of that county except as otherwise provided by law.

"(2) In case of an appointment or employment made in violation of this section, both the person making the appointment or employment and the person appointed or employed shall be liable for moneys paid to the person as salary, wages, or compensation in connection with the appointment or employment.... An action for the recovery of salary, wages, or compensation paid in connection with any appointment or employment made in contravention of this section, may be maintained by a taxpayer of the county. The moneys recovered in the action shall be deposited in the county treasury to the credit of the general fund.

"(3) The prosecuting attorney of the county, upon the request of the taxpayer, shall prosecute the action in the taxpayer's behalf.

"(4) A member of the county board of commissioners accepting an appointment or employment in violation of this section is guilty of a misdemeanor, punishable by a fine of not more than $100.00 or imprisonment for not more than 90 days, or both. An officer or other official ... making an appointment or employment in violation of this section is guilty of a misdemeanor, punishable by imprisonment for not more than 90 days, or a fine of not more than $100.00, or both."

Since MCL 46.30a; MSA 5.353(1), provides for criminal sanctions in subparagraph (4) thereof, it must be strictly construed. OAG, 1981-1982, No 6106, pp 754, 757-758 (November 23, 1982), states the applicable rules of statutory interpretation:

"[A] fundamental rule of statutory construction requires that it [a penal statute] be strictly construed in favor of an accused violator. People v Goulding, 275 Mich 353, 358; 266 NW 378, 380 (1936); People v Lockhart, 242 Mich 491, 494; 219 NW 724, 725 (1928). 'If there is doubt as to whether the act charged is embraced in the prohibition, that doubt is to be resolved in favor of the defendant.' People v Ellis, 204 Mich 157, 161; 169 NW 930, 931 (1918)."

The controlling issue in determining whether MCL 46.30a; MSA 5.353(1), is applicable to these appointments as conservator and as guardian is whether the probate court or the probate judge making the appointments is within the description in that statutory provision of "an officer, board, committee, or other authority of that county."

It has long been held that probate judges are not county officers. In People, ex rel Douvielle v. Bd of Supervisors of Manistee County, 40 Mich 585, 588 (1879), the court stated:

"It is very clear to us that the duties performed by probate judges are in no sense services performed for their respective counties, and that they are in no sense county officers...."

Under Const 1963, art 6, Secs. 1 and 15, one probate court is established as part of a single court of justice. Const 1963, art 6, Sec. 1, provides:

"The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court...." (Emphasis added.)

Const 1963, art 6, Sec. 15, provides, in part:

"In each county organized for judicial purposes there shall be a probate court. The legislature may create or alter probate court districts of more than one county if approved in each affected county by a majority of the electors voting on the question...."

MCL 600.801; MSA 27A.801, provides:

"The probate court is a court of record and is organized in accordance with this chapter."

It is clear that a probate judge is not a county officer; and it is likewise clear that a probate court is not a county "board, committee, or other authority" within the meaning of MCL 46.30a; MSA 5.353(1).

In your letter of request you cite I OAG, 1959, No 3403, p 199 (September 28, 1959), which held that a county supervisor (now called "commissioner") may be appointed as an appraiser of an estate by a probate judge under the Probate Code in effect at that time without violating MCL 46.30a; MSA 5.353(1), as it was then worded. I OAG, 1959, No 3403, at p 200, states:

"The Probate Code provides for appointment by the judge of probate of appraisers in estates and authorizes the judge to fix their fees. The same are payable from the estate as an expense of administration. The general statute governing the powers and duties of the board of supervisors contains the following restriction:

'No member of the board of supervisors of any county shall be eligible to receive, or shall receive, any appointment from, or be employed in any capacity whatsoever, by any officer, board, committee or other authority of such county. Provided further, That nothing in this act contained shall be construed to limit or prohibit the right of any member of the board of supervisors of any county from accepting from the board of supervisors any office or appointment wherein there is no salary to be paid for services therefor: '

"This provision has occasioned several opinions of this office construing the limitation thereby imposed. However, the precise question here presented has not been ruled upon. Under the rationale of such opinions, the appointment or employment forbidden thereby is limited to positions compensable from county funds. Such construction would in my opinion conform with the intent. The board of supervisors through its power to appropriate funds exercises control of the finances of the county. Such provision was inserted to insure that members of the board could not benefit personally through either county employment or appointment to any other compensable county office.

"As above stated, the fees of an appraiser are payable from the estate of the particular decedent or ward--not from county funds. It follows that the judge of probate may appoint a member of the board of supervisors to serve in that capacity." (Footnotes omitted.)

Two other Attorney General opinions have interpreted MCL 46.30a; MSA 5.353(1), as prohibiting employment or appointments of county commissioners (or supervisors, as they were previously called) involving court services: (1) OAG, 1941-1942, No 23324, p 569 (April 9, 1942), concluded that a supervisor was ineligible for employment as a county agent or investigator for a probate judge; and (2) OAG, 1947-1948, No 0-5219, p 115 (December 6, 1946), stated that a supervisor was prohibited from employment as a circuit court bailiff. To the extent that these opinions concluded or implied that appointments by or employment with the circuit or probate courts are subject to MCL 46.30a; MSA 5.353(1), these opinions are hereby superseded for the reason that circuit judges and probate judges are not county officers, and neither the probate court nor the circuit court is a county "board, committee, or other authority" within the meaning of that statute.

It should be observed that the county board of commissioners, however, determines the budget for each probate court. For example, MCL 600.817; MSA 27A.817, requires the county to provide the office of the probate judge with books, stationery, furniture, equipment and supplies as necessary for equipping and maintaining that office. In the absence of collective bargaining, the county board of commissioners fixes the salary of any probate register or deputy probate register (MCL 600.833; MSA 27A.833) and the salary of the official court stenographers (MCL 600.835; MSA 27A.835). The county is authorized to provide a supplemental salary for the probate judge, but the total salary of the probate judge from all sources may not exceed a statutory maximum (MCL 600.821; MSA 27A.821). The Legislature may wish to consider legislation which would specify eligibility of county commissioners for appointments as conservators and guardians by probate judges.

It is my opinion, therefore, that since the probate court is a state court and its judges are state officers, the prohibitions in MCL 46.30a; MSA 5.353(1), against appointments of county commissioners by an officer, board, committee or other authority of that county are not applicable to appointments of a county commissioner as conservator or guardian by a probate judge.

Frank J. Kelley

Attorney General

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