Opinion #7073

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

JENNIFER M. GRANHOLM, ATTORNEY GENERAL

COUNTIES:

FIREARMS:

LICENSES AND PERMITS:

OPEN MEETINGS ACT:

PROSECUTING ATTORNEYS:

PUBLIC BODY:

SHERIFFS:

Application of Open Meetings Act to county concealed weapons licensing board

Prosecutor designating sheriff's employee to represent prosecutor on county concealed weapons licensing board

A county concealed weapons licensing board is a "public body" subject to the Open Meetings Act.

A county prosecutor may not designate a member of a county sheriff's staff to serve in place of the prosecutor on a county concealed weapons licensing board.

Opinion No. 7073

January 23, 2001

Honorable Ken Bradstreet
State Representative
The Capitol
Lansing, MI 48909-7514

You have asked two questions concerning county concealed weapons licensing boards.

Your first question asks whether a county concealed weapons licensing board is a "public body" subject to the Open Meetings Act.

The Open Meetings Act (OMA), 1976 PA 267, MCL 15.261 et seq; MSA 4.1800(11) et seq, requires a public body to open its meetings to the public subject to limited exceptions. OAG, 1981-1982, No 6053, p 616 (April 13, 1982). Its purpose is "to promote a new era in governmental accountability" and to foster "openness in government as a means of promoting responsible decision making." Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 222-223; 507 NW2d 422 (1993). The act is to be broadly interpreted and its exemptions strictly construed. Id., 223. The OMA defines a "[p]ublic body" to include "any state or local legislative or governing body . . . which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function." Section 2(a). OAG, 1997-1998, No 6935, p 18 (April 2, 1997).

The Firearms Act, 1927 PA 372, MCL 28.421 et seq; MSA 28.91 et seq, regulates and licenses the possessing and carrying of certain firearms and prohibits the carrying of certain firearms without a license. Section 6(1) of this act, which creates county concealed weapons licensing boards, provides for their membership as follows:

The prosecuting attorney, the sheriff, and the director of the department of state police, or their respective authorized deputies, shall constitute boards exclusively authorized to issue a license to an applicant residing within their respective counties, to carry a pistol concealed on the person and to carry a pistol, whether concealed or otherwise, in a vehicle operated or occupied by the applicant.¹

The nature of a county concealed weapons licensing board was considered by the Michigan Court of Appeals in Bay County Concealed Weapons Licensing Bd v Gasta, 96 Mich App 784, 790; 293 NW2d 707 (1980). There the court observed that the Legislature had created a board consisting of law enforcement officials and conferred upon it "exclusive authority to issue, deny and revoke permits for concealed weapons" to protect the "unsuspecting public" against the danger of concealed weapons in light of the "experience and knowledge of community needs possessed by these local officials." Id., 789-790. A county concealed weapons licensing board exercises an "important" governmental authority when it acts to grant, deny or revoke a concealed weapons permit. See Booth, supra, 444 Mich at 225.²

It is my opinion, therefore, in answer to your first question, that a county concealed weapons licensing board is a "public body" subject to the Open Meetings Act.

Your second question asks whether a county prosecutor may designate a member of a county sheriff's staff to serve in place of the prosecutor on a county concealed weapons licensing board.

Section 6(1) of the Firearms Act, which creates and provides membership of a county concealed weapons licensing boards, provides that "[t]he prosecuting attorney, the sheriff, and the director of the department of state police, or their respective authorized deputies, shall constitute [the] board[ ]." (Emphasis added.)

The authority to delegate the statutory responsibility of membership on a county concealed weapons licensing board is limited by the Legislature to the statute's specified members or their deputies. In OAG, 1987-1988, No 6556, pp 455, 457 (December 28, 1988), it was concluded that:

To be a deputy one must have the authority to act on behalf of one's principal in all matters. An investigator, although a certified law enforcement officer, does not have the authority to act on behalf of the prosecuting attorney in all matters. The only persons who may be authorized to act on behalf of the prosecuting attorney in all matters are assistant prosecuting attorneys.

Thus, a county prosecuting attorney may not appoint an investigator, even though a fully certified police officer, to serve as the prosecuting attorney's authorized deputy on a county concealed weapons licensing board. Id., 457. By the same reasoning, it follows that a county prosecutor may not appoint a member of a county sheriff's staff to serve in the prosecutor's place on a county concealed weapons licensing board.

It is my opinion, therefore, in answer to your second question, that a county prosecutor may not designate a member of a county sheriff's staff to serve in place of the prosecutor on a county concealed weapons licensing board.

JENNIFER M. GRANHOLM
Attorney General

¹ Carrying a concealed weapon without a license is punishable as a felony. MCL 750.227; MSA 28.424; OAG, 1983-1984, No 6223, p 300 (May 4, 1984).

² On January 2, 2001, the Governor signed into law 2000 PA 381, which amends the Firearms Act. Nothing in the Firearms Act or amendatory 2000 PA 381, however, indicates that the Legislature intended to exempt county concealed weapons licensing boards from the OMA. On the contrary, 2000 PA 381 adds new language authorizing a board to grant a "closed session" when it considers an applicant's mental health history. Section 5b(1)(d).