Opinion #5606

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. 5606

December 13, 1979

FORENSIC POLYGRAPH EXAMINERS ACT:

Continuation in office of a board member whose term has expired

OFFICERS AND EMPLOYEES:

Continuation in office after expiration of term

BOARDS AND COMMISSIONS:

Continuation in office after expiration of term of board member

Appointment of State Police polygraph examiner as member of board representing the public sector

In the absence of a statutory provision to the contrary, a public officer holding over may continue to serve until a successor is appointed and qualified.

The Director of the Department of Michigan State Police may not issue and deny licenses pursuant to Forensic Polygraph Examiners Act in the event the board fails to act thereon.

A State Police polygraph examiner may not be appointed as a member of the Forensic Polygraph Examiners Board representing the public sector.

Colonel Gerald L. Hough

Director

Michigan State Police

714 South Harrison Road

East Lansing, Michigan 48823

You have asked for my opinion concerning the Forensic Polygraph Examiners Act, 1972 PA 295; MCLA 338.1701 et seq; MSA 18.186(1) et seq. The questions you posed are stated as follows:

(1) 'When the term of office expires for a board member, can he continue to function on the board until a new member is appointed?

(2) Inasmuch as the board is created within the Department of State Police, can the director take action on items such as issuing and denying licenses, in the event board members cannot or do not handle such business?

(3) May a state police polygraph examiner serve as a member of the board representing the public sector?'

Your first question asks whether a member of the State Board of Forensic Polygraph Examiners, whose term expires, can continue to sit as a member of the Board until his successor is appointed.

A person in possession of an office by virtue of a holding-over is a de facto officer. Blain v Chippewa Circuit Judge, 145 Mich 59; 108 NW 440 (1906).

The Michigan Supreme Court has stated in Greyhound Corp. v Michigan Public Service Commission, 360 Mich 578, 589-590; 104 NW2d 395, 402 (1960),

'. . . one in actual occupancy of an office in performing its duties under apparent claim of right to do so is not subject to have his acts challenged notwithstanding that a vacancy may exist, from the legal standpoint, which may be filled by appointment.'

See also OAG, 1977-1978, No 5362, p ___ (September 13, 1978), OAG, 1977-1978, No 5385, p ___ (October 13, 1978).

Therefore, in the absence of a statutory provision to the contrary, it is my opinion that a public officer holding over may continue to serve until a successor is appointed and qualified.

Your second question asks whether the Director of the Department of Michigan State Police can take such action as issuing and denying licenses in the event the board fails to act thereon.

1935 PA 59, as last amended by 1967 PA 68, Sec. 2, MCLA 28.2; MSA 4.432, created the Department of Michigan State Police and designated the Director as its executive head. While the State Board of Forensic Polygraph Examiners is created within the Michigan Department of State Police, the legislature has created no authority in the Director to supervise the issuance or denial of licenses.

It is therefore my opinion that the Director of the Department of Michigan State Police may not issue and deny licenses in the event board members fail to do so.

In your next question you have asked whether a state police polygraph examiner may be appointed a member of the board representing the public sector.

1972 PA 295, supra, Sec. 5(2) states as follows:

'(2) The members of the board shall be qualified as follows:

(a) At least 2 members of the board shall be public examiners employed by separate and distinct governmental law enforcement agencies who are at the time of appointment licensed or in the case of the initial board, who fulfill the requirements for examiner licenses under the provisions of this act. Each of these 2 members shall have at least 5 consecutive years of law enforcement experience and at least 2 consecutive years of experience administering polygraph examinations prior to their appointment.

(b) At least 2 members of the board shall be private examiners employed by separate and distinct persons or persons who are at the time of appointment licensed or in the case of the initial board, who fulfill the requirements for examiner licenses under the provisions of this act. Each of these 2 members shall have at least 5 consecutive years of experience administering polygraph examinations prior to their appointment.

OAG, 1977-1978, No 5241, p ___ (November 7, 1977) held that where the legislature had provided that the total number of physically limited members of the barrier-free design board was limited to four, and the total number of wheelchair user members was limited to one, a wheelchair user may not serve on the board as the representative of the general public. In 1972 PA 295, supra, the legislature has limited the number of polygraph examiners who may sit upon the board to four, and has provided that the fifth member shall be a person who shall represent the public at large. Therefore, it is my opinion that the member of the board who represents the public at large may not be a licensed polygraph examiner.

Frank J. Kelley

Attorney General