STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5837

December 29, 1980

COUNTIES:

Sheriffs-appointment powers of employees

The statutory powers of a newly elected or appointed sheriff to appoint deputies, matrons and other employees of the department are impacted by the police matron act, the veterans preference act, any collective bargaining agreements or obligations deriving from the public employees relations act, a civil service system adopted pursuant to the civil service commission act, the Forensic Polygraph Examiners Act, and federal constitutional guaranties with respect to freedoms of expression and political association and due process of law, as may be applicable.

Honorable Alvin J. DeGrow

State Senator

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the following two questions:

Inasmuch as these questions involve overlapping issues, they will be considered together.

The Constitution contains no provision specifically having to do with the appointment powers of a sheriff. Those powers derive from legislative enactments pursuant to Const 1963, art 7, Sec. 4, which provides, in pertinent part:

Among the powers granted to a sheriff by statute is the authority contained in 1846 RS, ch 14, Sec. 70, as amended by 1978 PA 635; MCLA 51.70; MSA 5.863, to appoint and to revoke the appointment of deputies:

Another of the powers granted to a sheriff by statute is the authority contained in 1897 PA 109, Sec. 2; MCLA 123.892; MSA 5.3302, to appoint and remove police matrons, subject to stated limitations:

In several subsequent enactments of more general application, the Legislature has imposed additional limitations on a sheriff's discretionary authority as to employment practices. ⁽¹⁾

The veterans preference act, 1897 PA 205, as amended by 1976 PA 121; MCLA 35.401 et seq; MSA 4.1221 et seq, requires certain preferential practices with regard to the appointment and the employment of honorably discharged veterans, as defined in 1965 PA 190, Sec. 1, as amended by 1976 PA 15; MCLA 35.61; MSA 4.1488(1). By its terms, 1897 PA 205, supra, Sec. 1, applies:

The public employment relations act (PERA), 1947 PA 336, as amended by 1965 PA 369; MCLA 423.201 et seq; MSA 17.455(1) et seq, which was enacted pursuant to Const 1963, art 4, Sec. 48, ⁽²⁾ declares and protects certain rights and privileges of public employees. PERA, supra, Sec. 9, provides:

PERA, supra, Sec. 15, provides:

Pursuant to the provisions of PERA, the negotiation of collective bargaining agreements involving sheriffs and sheriff department employees has become prevalent. ⁽³⁾ In this regard the Court of Appeals stated that the sheriff and the county board of commissioners are joint employers of deputy sheriffs, with the sheriff controlling their appointment and tenure in position, pursuant to 1846 RS, ch 14, Sec. 70, supra, while the county commissioners establish the number of deputies to be employed as well as the compensation levels, pursuant to 1919 PA 180, Sec. 2; MCLA 51.242; MSA 5.892. Capital City Lodge No 141, Fraternal Order of Police v Meridian Township, 90 Mich App 533, 539; 282 NW2d 383, 386 (1979), citing Local 1518, Council 55, American Federation of State, County & Municipal Employees, AFL-CIO v St Clair County Sheriff, 77 Mich App 145, 149-150; 258 NW2d 168 (1977), rev'd on other grounds, 407 Mich 1; 281 NW2d 313 (1979).

In National Union of Police Officers Local 502-M, AFL-CIO v Wayne County Board of Commissioners, 93 Mich App 76, 89; 286 NW2d 242, 248 (1979), the Court of Appeals enumerated three principles in the application of PERA to sheriffs and their employees. First, a sheriff's power to hire, fire, and discipline employees is not absolute and is limited by PERA. Second, all terms and conditions of employment are subject to collective bargaining and to any agreement resulting from such bargaining, unless that bargaining or agreement infringes upon matters which are placed within the exclusive power of a sheriff by the constitution. Third, although a sheriff's power to hire, fire, and discipline may be limited by the Legislature, the matter of which his deputies shall be delegated the powers of law enforcement entrusted to him by the constitution is a matter exclusively within his discretion and inherent in the nature of his office. ⁽⁴⁾ That matter may neither be infringed upon by the Legislature nor delegated to a third party.

The civil service commission act, 1966 PA 298, as amended, by 1972 PA 125; MCLA 51.351 et seq; MSA 5.1191(101) et seq, establishes and provides a civil service system for sheriff's departments in certain counties in which the electors approve the adoption of the act. ⁽⁵⁾ The system provided is based on examination and investigation as to merit, efficiency, and fitness for appointment, employment, and promotion within the departments. The system also regulates the transfer, reinstatement, suspension, and discharge of department employees. In Locke v Macomb County, 387 Mich 634, 639; 199 NW2d 166, 168 (1972), the Supreme Court stated that the provisions of 1966 PA 298, supra, superseded 1846 RS, ch 14, Sec. 70, supra, upon the adoption of a civil service system under its provisions.

The Forensic Polygraph Examiners Act, 1972 PA 295, Sec. 26(2), as amended by 1975 PA 278; MCLA 338, 1726(2); MSA 18.186(26)(2), prohibits an employer or agent from discharging an employee solely because of an alleged or actual opinion that the employee did not tell the truth during a polygraph examination or lie detector or similar test. This provision limits the sheriff's authority under 1846 RS, ch 14, Sec. 70, supra, to dismiss deputies. Cyrus v Calhoun County Sheriff, 85 Mich App 397, 400; 271 NW2d 249, 251 (1978).

The freedoms of expression and political association contained in US Const, Am I and the due process rights contained in US Const, Am XIV, are additional limitations on a sheriff's discretionary authority under 1846 RS, ch 14, Sec. 70, supra, and Sec. 71 ⁽⁶⁾ to terminate employees. Simmons v Stanton, ---- F Supp ---- (WD Mich, 1980). In that case the defendant sheriff discharged the plaintiff undersheriff upon information that the undersheriff was considering the possibility of running for the office of sheriff in the next election. The Court found the discharge to be wrongful.

In summary and in answer to your first question, it is my opinion that an incoming sheriff's statutory authority as to the appointment and termination of sheriff department employees is limited by at least the following: the police matron act (1897 PA 109, supra); the veterans preference act (1897 PA 205, supra); any collective bargaining agreements or obligations properly deriving from PERA (1965 PA 379, supra); a civil service system adopted pursuant to Const 1963, art 11, Sec. 6, or the civil service commission act (1966 PA 298, supra); the Forensic Polygraph Examiners Act (1972 PA 295, supra); and the federal constitutional guaranties with respect to freedoms of expression and political association and due process of law (US Const, Ams I and XIV).

In answer to your second question, it is my opinion that, in keeping with the foregoing discussion, an incoming sheriff's authority as to the appointment and termination of sheriff department employers may be limited by the terms of an existing labor contract.

Frank J. Kelley