STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6060

April 28, 1982

COUNTIES:

Retention of fees by county clerk receiving salary

A county clerk receiving a salary fixed by the county board of commissioners may not retain per diem compensation for serving as clerk to the county tax allocation board.

The Legislature has authorized a county clerk serving as secretary of the county plat board to retain compensation as a member of the county plat board.

A person who serves as a county clerk and has been appointed by the Governor to serve as a member of a county board of jury commissioners may retain the per diem compensation established by the county board of commissioners for service as a jury commissioner.

Honorable Edward E. Mahalak

State Representative

The Capitol

Lansing, Michigan 48933

Referring to OAG, 1981-1982, No 5942, p 274 (July 29, 1981), which discussed the retention of fees by county officials receiving salaries, you have requested my opinion whether fees for birth and death records may be retained by a county clerk who is receiving an established salary.

OAG, 1981-1982, No 5942, supra, held that fees for birth and death records may not be retained by the county clerks, since pursuant to 1919 PA 237, as amended; MCLA 45.401 et seq; MSA 5.911 et seq, Sec. 1, as last amended by 1978 PA 486, the established salary fixed and determined for county officers, including the county clerk, 'shall be compensation in full for all services performed,' and all fees are required to be paid over to the county treasurer and credited to the general fund of the county. 1919 PA 237, supra, Secs. 2 and 4. This conclusion is not altered by the change in the public health code which provides for the deposit of such fees. Compare 1978 PA 368, as last amended by 1981 PA 63, Sec. 2891; MCLA 333.2891; MSA 14.15(2891), and former 1925 PA 343, Sec. 18; MCLA 326.18; MSA 14.238.

You also inquire whether a county clerk, who is receiving an established salary, may retain per diem compensation for services performed on the following boards and commissions:

The property tax limitation act, 1933 PA 62, Sec. 6; MCLA 211.206; MSA 7.66, provides that the county clerks shall act as clerk of the county tax allocation board. 1933 PA 62, Sec. 7, as last amended by 1958 PA 7; MCLA 211.207; MSA 7.67, provides that the members and the county clerk as clerk of the county tax allocation board shall receive the same per diem compensation and actual and necessary traveling expenses as are allowed to members of the board of supervisors ^(a1) of the county. However, a later enacted statute, 1968 PA 351; MCLA 45.411; MSA 5.1102(1), provides:

1968 PA 351, supra, the last enactment, is controlling. OAG, 1979-1980, No 5793, p 1024 (October 2, 1980). The provision of 1968 PA 351, supra, that compensation of boards, etc., shall be determined by the county board of commissioners, is consistent with such provision in 1919 PA 237, supra. The salaries of all officers designated in 1919 PA 237, supra, including the county clerk, 'shall be compensation in full for all services performed. . . .' Retention of the per diem compensation under 1933 PA 62, Sec. 7, supra, in addition to a salary authorized by 1919 PA 237, supra, would be inconsistent with the requirement of 1919 PA 237, supra, that the salary shall be compensation in full for all services.

It is my opinion, therefore, that a county clerk who is receiving a salary pursuant to 1919 PA 237, supra, may not retain the per diem compensation for serving as clerk to the county tax allocation board provided for by 1933 PA 62, Sec. 7, supra. Such per diem compensation may be retained only by county clerks in counties which have not established salaries under 1919 PA 237, supra. It is my further opinion that, inasmuch as reimbursment for traveling expenses, authorized by 1933 PA 62, supra, Sec. 7, would not be compensation, the official would be entitled to such reimbursement.

The county clerk serves as secretary of the county plat board. 1967 PA 288, Sec. 102; MCLA 560.102; MSA 26.430(102). OAG, 1975-1976, No 4895, p 196 (November 6, 1975), concluded that county officials may receive additional compensation for attendance as members of the county plat board. The opinion was based upon the subdivision control act, 1967 PA 288, Sec. 247; MCLA 560.247; MSA 26.430(247), inter alia, which provides:

1967 PA 288, Sec. 247, supra, was subsequently superseded by 1968 PA 351, quoted supra. See also OAG, 1979-1980, No 5793, supra. Therefore, the compensation for members of a county plat board is no longer statutorily equal to the compensation of the county board of commissioners pursuant to 1967 PA 288, Sec. 247, supra, but rather is as determined by the county board of commissioners pursuant to 1968 PA 351, supra. OAG, 1975-1976, No 4895, supra, is modified regarding the method by which such compensation is determined. A county clerk who is receiving an established salary pursuant to 1919 PA 237, supra, would be entitled to retain such compensation for membership on the county plat board as is determined by the county board of commissioners.

While 1919 PA 237, supra, precludes a county clerk from additional payment for attending the county tax allocation board, but not from additional payment for attending the county plat board, the explanation for the opposite conclusions lies in the nature of the duties of the respective offices. 1933 PA 62, Sec. 6, supra, expressly provides that the county clerks shall act as clerk of the county tax allocation board; thus, a county clerk receiving an established salary for all services of his or her office, including the duty of tax allocation board membership, would be fully compensated under 1919 PA 237, supra. On the other hand, 1967 PA 288, Sec. 247, supra, quoted above, expressly excludes plat board membership from the duties of the regular offices of the members; therefore, a county clerk compensated under 1919 PA 237, supra, for duties as a county clerk, would not be compensated for the additional duty of plat board membership, and would, therefore, be entitled to additional compensation for the latter office. This is discussed in OAG, 1975-1976, No 4895, supra.

Formerly, the compensation of jury commissioners was provided for by 1961, PA 236, Sec. 1241; MCLA 600.1241; MSA 27A.1241. 1961 PA 236, Sec. 1242; MCLA 600.1242; MSA 27A.1242, provided that the county clerk shall be the clerk of the board of jury commissioners. These provisions were subsequently superseded by 1961 PA 236, Sec. 1301 et seq, as added by 1968 PA 326; MCLA 600.1301 et seq; MSA 27A.1301 et seq. Under 1968 PA 326, supra, Sec. 1302, the county clerk is no longer designated as clerk of the jury board; this function is performed by the secretary of the board. 1961 PA 236, supra, Sec. 1305. The county clerk is not required to perform such a duty by virtue of his or her office, and membership on the board of jury commissioners is merely coincidental to the holding of the office of county clerk.

It is my opinion, therefore, that a county clerk who is receiving an established salary for that position may, when coincidentally appointed by the governor as a jury commissioner, retain the per diem compensation established by the county board of commissioners for service as a jury commissioner, since the duties performed in the latter position, are not part of the regular duties of the office of the county clerk.

Frank J. Kelley