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. 5511 July 6, 1979 COUNTIES: Authority of county officers to hire independent legal counsel SHERIFFS: Authority to hire independent legal counsel PROSECUTING ATTORNEYS: Authority of county officers to hire independent legal counsel OFFICERS & EMPLOYEES: Authority of county officers to hire independent legal counsel Under circumstances which occurred prior to enactment of 1978 PA 508, it was discretionary with the board of county commissioners as to whether to grant the request of a sheriff for reimbursement of attorney fees incurred by him without prior approval of the county board of commissioners; however, where the prosecuting attorney had consented to represent the sheriff there was no authority to compensate the sheriff for the cost of legal representation. By enactment of 1978 PA 508, effective December 13, 1978, the board of county commissioners is now obligated to employ an attorney to provide legal representation to county officials sued in connection with county business where neither the prosecuting attorney nor the county corporate counsel is able to represent the particular officer. However, even in such cases, the county officer is obligated to first seek legal representation from the county prosecutor or the county corporation counsel. William F. Hanna Prosecuting Attorney Oceana County Hart, Michigan 49420 You have requested my opinion on two questions relating to the authority of a county sheriff to hire independent counsel other than the prosecuting attorney to represent him in connection with county related business without prior approval of the county board of commissioners. In your letter to me you set forth the following fact situation and ask two questions: 'FACTS: The duly elected Sheriff refused to renew or re-appoint two members of the Sheriff's Department as Deputy Sheriffs. He was sued by the two Deputy Sheriffs and the Fraternal Order of Police, who were then engaged in a bargaining contract, charging unfair labor practices by Labor Relations Board. The Sheriff proceeded to retain his own attorney without prior authority of the Board and without requesting the Prosecuting Attorney to defend him in said suit. The Sheriff elect had consulted the Prosecuting Attorney who had advised him that he was within his legal rights not to re-appoint Deputy Sheriffs and was willing to defend him in any Court. 'QUESTION: Can a duly elected county officer such as the Sheriff, County Treasurer, County Clerk or Register of Deeds, employ an attorney selected by him without first securing approval of the County Board of Commissioners and requesting that an attorney be hired for him and asking that the Board determine that the Prosecuting Attorney is unable to properly represent the Sheriff. 'FACTS: The Sheriff, against the advice of the Prosecuting Attorney, appointed a man as Deputy Sheriff who was determined not to be qualified as Deputy Sheriff under the Law Enforcement Training Act as last amended. The Prosecuting Attorney instituted suit to bar the Sheriff from such appointment and against the Deputy Sheriff barring him from exercising police powers as a Deputy Sheriff. The Sheriff without prior authority of the Board of Commissioners, retained an attorney to defend him in that suit which was settled by revoking the general appointment as Deputy Sheriff and appointing him as Special Deputy for Marine Law Enforcement only. 'QUESTION: Can the Sheriff in such case, hire an independent attorney without prior approval of the Board?' OAG, 1935-1936, No 78, p 210 (June 10, 1935), recognized the potential for conflict of interest when two county departments both of which are required to be represented by the prosecuting attorney are involved in a dispute resulting in litigation: '. . . Where the disagreement exists between two county departments, it is apparent that justice cannot be adequately administered if each is represented by the same person in court. The interests would be conflicting, and the attorney arguing both, pro and con; in such situations it is permissible and ethical for one of the parties litigant to hire outside counsel in order that satisfactory services and proceedings may result. This, of course, is limited to cases involving county interests, the county paying the expenses.' The principle is clearly articulated but the opinion does not speak to the issue of prior board of commissioners' approval of the expenditure of funds for hiring independent counsel. A more recent opinion, OAG, 1975-1976, No 4947, p 349 (March 23, 1976), discussed the issue of indemnification of a public official who incurs legal fees in defense of civil or criminal charges where the official acted in good faith in discharging his or her official duties. That opinion stated: 'Michigan courts have allowed a municipality to indemnify a public officer for civil liability under certain circumstances. The general rule was stated in Messmore v Kracht, 172 Mich 120, 122; 137 NW 549, 550 (1912); "It is within the discretionary power of a municipality to indemnify one of its officers against liability incurred by reason of any act done by him while in the bona fide discharge of his official duties, and the municipality has the right to employ council to defend the officer, or to appropriate funds for the necessary expenses incurred by him in such defense, or pay a judgment rendered against him.' 'The Messmore rule was extended to cover the indemnification of a police officer for the defense against criminal charges in Sonnenberg v Farmington Township, 39 Mich App 446, 449; 197 NW2d 853, 854 (1972) in which the court stated: "We hold that a municipality has the discretionary authority to indemnify a police officer for the expense he has sustained in the successful defense to criminal or civil charges which arose out of and in the scope and course of his employment for the municipality. . . .' 'Applying the Messmore rule, it is my opinion that a public officer may be indemnified for legal expenses in defense of a legal action alleging wrongful conduct by him where he acted in good faith in discharging his official duties, assuming there are appropriate available funds for this putpose.' Statutory authority exists under which the county board of commissioners may employ an attorney to represent the county in civil matters, 1941 PA 15, MCLA 49.71 et seq; MSA 5.824 et seq. The validity of the statute was upheld in Wayne County Prosecuting Attorney v Wayne County Board of Commissioners, 44 Mich App 144; 205 NW2d 27 (1972), and Mackinac County Prosecuting Attorney v Mackinac County Clerk, 65 Mich App 537; 237 NW2d 547 (1975). The proper procedure for a county official to follow when he or she believes that it is necessary to retain separate counsel is to first request the prosecuting attorney to provide legal service. If the prosecuting attorney is unable to do so, the service should be provided by civil counsel retained by the county board of commissioners. If the county board of commissioners approves the retention of counsel, the attorney may be paid. Therefore, the county board of commissioners may retain private counsel to represent the county or one of its officers in any action involving county business where the prosecuting attorney is unwilling or unable to provide representation. Thus, under the above-described circumstances, it was discretionary with the board of county commissioners as to whether to grant the request of the sheriff for reimbursement of attorney fees incurred by him without prior approval of the county board of commissioners. (1) However, where the prosecuting attorney had consented to represent the sheriff, there was no authority to compensate the sheriff for the costs of legal representation. Frank J. Kelley Attorney General (1)