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. 5384

September 27, 1978

OFFICERS & EMPLOYEES:

Salaries

COUNTIES:

Establishment of salaries of officers by the board of commissioners

WORDS & PHRASES:

'Public officers'

'Public employee'

The positions of deputy clerk, deputy register of deeds and district court clerk are public offices, the annual salaries of which shall be fixed by the county board of commissioners on or before October 31 each year. The annual salaries so fixed shall not be diminished during the term for which the incumbents of such offices have been appointed.

Honorable Russell Hellman

State Representative

The Capitol

Lansing, Michigan 48909

You have written requesting my opinion on the following question:

Once the salaries of officers are set by the Board of Commissioners in October of 1977, is it legal for the Board of Commissioners to reduce the salary of the Deputy Clerk and Register of Deeds who also serves as the District Court Clerk during their term?

Michigan law prohibits County Boards of Commissioners from lowering the salaries of county officers during their terms of office. 1879 PA 154, MCLA 45.421; MSA 5.1101, states:

'The annual salaries of all salaried county officers, which are now or may be hereafter by law fixed by the board of supervisors, shall be fixed by the board on or before October 31 each year and shall not be diminished during the term for which such county officers shall have been elected or appointed, but may be increased by the board during their term of office.' [Emphasis added]

Thus, as the statute governing the salaries of governmental positions, 1879 PA 154, supra, applies specifically to officers, and does not apply to employees of the county, the characterization of the Deputy Clerk and the Deputy Register of Deeds as being either officers or employees is determinative of your question.

The Supreme Court of Michigan has set forth the criteria upon which a determination is to be made as to whether a position is that of an employee or an officer in People v Freedland, 308 Mich 449, 457-458; 14 NW2d 62 (1944), wherein the Court stated:

'After an exhaustive examination of the authorities, we hold that 5 elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. . . .'

See Meiland v Wayne Probate Judge, 359 Mich 78, 87; 101 NW2d 336 (1960).

The positions of Deputy Clerk, Deputy Register of Deeds, and District Court Clerk are provided for by legislation. The position of Deputy Clerk is provided for by 1846 RS, c 14, Sec. 63, MCLA 50.63; MSA 5.833; the position of Deputy Register of Deeds is provided for by 1846 RS, c 14, Sec. 91, MCLA 53.91; MSA 5.983; and the position of District Court Clerk is provided by 1961 PA 236, Sec. 8281, MCLA 600.8231; MSA 27A.8281. This fulfills the first requirement that the office be created by Constitution or the Legislature.

Each of these positions carries with it a delegation of a portion of the sovereign power of government, in that each holder of such position performs functions and duties prescribed by statute, all of which are exercised for the benefit of the public. Further, the functions and duties performed by the holder of said positions are performed in accordance with the powers conferred by the Legislature. Therefore, both the second and third requirements of People v Freedland, supra, are fulfilled.

The functions and duties performed by the Deputy Clerk and the Deputy Register of Deeds are those performed by inferior or subordinate officers, who are placed under the general control of their superiors, in this case being the County Clerk and the Register of Deeds. The District Court Clerk is, of course, independent of the control of a superior power other than the law. Thus, the fourth of the requirements has been met. Lastly, each position can be described as one of some permanency and continuity, in that the person appointed to these positions is appointed for a definite period of time which cannot be termed as either temporary or occasional. See Drolshagen v County of Wayne, 283 Mich 569, 573; 278 NW 690 (1938).

The very issue involved herein came before the Michigan Supreme Court in Kent County Register of Deeds v Kent County Pension Board, 342 Mich 548; 70 NW2d 765 (1955), where the Court was asked to determine whether a deputy register of deeds is a public official. Applying the test formulated in People v Freedland, supra, the Court ruled that the position of deputy register of deeds meets the established criteria for a public office.

In 1954 PA 116, Sec. 200, MCLA 168.200; MSA 6.1200, the Legislature has provided for the union of the offices of county clerk and the county register of deeds into one office by action of the county board of commissioners. It should also be observed that the county clerk serves as the clerk of the circuit court pursuant to Const 1963, art 6, Sec. 14 and serves as the clerk of certain district courts. MCLA 600.8281; MSA 27A.8281.

It is therefore my opinion that persons serving as deputy clerks, deputy registers of deeds and district court clerks are officers and therefore their salaries may not be diminished during the term for which they were appointed.

Frank J. Kelley

Attorney General