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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. 6066

May 12, 1982

COUNTIES:

Optional unified county--law enforcement powers of county sheriff may not be vested in a public safety division

Optional unified county--action of county board of commissioners creating a public safety division

The county board of commissioners of an optional unified county may not confer law enforcement functions upon a public safety division which impinge upon the constitutional responsibilities of the county sheriff to supervise law enforcement within the county.

Honorable Joe Forbes

State Representative

Majority Floor Leader

State Capitol

Lansing, Michigan 48909

Referring to the County of Oakland, and citing 1905 PA 80, as amended by 1978 PA 614; MCLA 19.141 et seq; MSA 4.201 et seq, you have inquired about the authority of a county to establish a public safety division pursuant to 1905 PA 80, supra, under the supervision of the county executive, as compared to the supervision of the county sheriff.

Your correspondence indicates that on March 18, 1982, the Oakland County Board of Commissioners adopted a resolution authorizing the county executive to establish a public safety division; to appoint qualified personnel to perform the duties and responsibilities set forth in Oakland County Miscellaneous Resolution No. 7211 dated August 7, 1975 and 1905 PA 80, as amended, supra; and to appoint and maintain a mounted division as the only such unit authorized and funded by the County of Oakland. The March 18, 1982, resolution contemplates that the public safety division would operate the supervision of the county executive, and does not contemplate that public safety personnel would be deputized by the county sheriff.

Your question may be stated as follows:

1. May an optional unified county, (1) under 1905 PA 80, as last amended by 1978 PA 614, (2) or any other statute, establish a county public safety division, with law enforcement powers, under the supervision of the county executive, separate and distinct from the county sheriff's department?

2. Would such a county public safety division have full law enforcement powers, as deputy sheriffs, or would their powers and duties be confined to county buildings and property?

3. Would such a county public safety division have the authority to enter into contracts with other municipalities for law enforcement services, or to provide mutual aid services to other law enforcement agencies?

When law enforcement provisions are enforced within a county, it is appropriate to consider which county officer or agency has been delegated by the legislature the authority and responsibility to carry out these law enforcement functions. Your first question inquires whether it would be the county executive or the county sheriff.

The Court of Appeals discussed the constitutional status and the nature of the law enforcement powers of a county sheriff in Brownstown Township v Wayne County, 68 Mich App 244, 247-248; 242 NW2d 538, 539-540 (1976), lv den, 399 Mich 831 (1977), stating:

'The state has constitutionally delegated the duty of law enforcement to the county by providing for the office of sheriff. . . .

'The office of sheriff is a constitutional office with duties and powers provided by law . . . When officers are named in the constitution, they have a known legal character. The legislature may vary the duties of a constitutional office, but it may not change the duties so as to destroy the power to perform the duties of the office. . . .

'We proceed to analyze the duties of the sheriff. MCLA 45.407; MSA 5.917, provides:

'It is hereby provided that this act shall be so construed as to require the sheriff, under-sheriff and deputy sheriffs to perform all reasonable services within the jurisdiction of their offices for which the county may be liable and to serve and execute all civil writs and processes that may be reasonably served and executed by said officers under salary.' (Emphasis supplied.)

'We construe the provision 'reasonable service' to mean the sheriff must perform the duties of the office of sheriff as recognized at common law as well as those statutory duties which do not destroy the sheriff's power to perform the duties of the office at common law.

'Michigan's most authoritative case on the duties of the sheriff at common law is White v East Saginaw, 43 Mich 567, 570; 6 NW 86 (1880). That case quoted approvingly from People v Edwards, 9 Cal 286 (1858).

"[T]he duties of sheriff, as such, relate to the execution of the orders, judgments, and process of the courts; the preservation of the peace; the arrest and detention of persons charged with the commission of a public offense; . . .."' (Emphasis added.)

The Court of Appeals followed Brownstown Township, supra, in National Union of Police Officers Local 502-M, AFL-CIO v Wayne County Board of Commissioners, 93 Mich App 76; 286 NW2d 242 (1979), stating:

'The sheriff is a peace officer charged with enforcing the laws enacted by the Legislature under the police power. . . . It is his duty to 'wield the executive power for the preservation of the public peace.' Scougale v Sweet, 124 Mich 311, 322; 82 NW 1061 (1900). See also White v East Saginaw, 43 Mich 567; 6 NW 86 (1880). Thus it may be said that the sheriff's powers and duties comprise a part of the police power of the state, which may be delegated to subordinate governmental agencies or divisions, but may not be otherwise delegated or bargained away, being an inherent attribute of sovereignty. . . .' 93 Mich App 76, 82. [Emphasis added.]

The court in National Union of Police Officers Local 502-M, AFL-CIO, supra, also stated that 'the office of sheriff was created by the constitution as the chief law enforcement officer in the county,' citing Labor Mediation Board v Tuscola County Sheriff, 25 Mich App 159; 181 N2d 44 (1970).

OAG, 1977-1978, No 5304, p 427 (April 27, 1978), which concluded that a county board of commissioners is without authority to create a police department within the county which would perform functions which are the responsibility of the sheriff, states:

'Thus, it is clear that the delegation of law enforcement responsibilities to any entity other than the sheriff would contravene general state laws. In addition, such a delegation would tend to increase the powers, duties and jurisdiction of the county board of commissioners by transferring a measure of the sheriff's authority to an organization responsible to the board and not to the sheriff. Therefore, a county board of commissioners is prohibited from creating such a police force.

'The foregoing reasoning and conclusions are equally applicable to a county organized under the unified form of county government pursuant to 1973 PA 139. . . .

'In summary, it is my opinion that a county board of commissioners is without authority to create a police department within the county which would perform functions that are the responsibility of the sheriff.' (3) [Emphasis added.]

The legislature has acknowledged and preserved the constitutional status of a county sheriff, in the optional unified county act, 1973 PA 139, supra, providing at section 4:

'The power vested in the office of . . . county sheriff . . ., shall not be minimized or divested by this act.'

1973 PA 139, supra, Sec. 8, in part, provides:

'A . . . county executive shall:

(a) Supervise, direct and control the functions of the departments of the county except those headed by elected officials.' [Emphasis added.]

In 1973 PA 139, supra, Sec. 14, the Legislature has provided:

'Except as to a department headed by elected county officials . . . the board of county commissioners may:

(a) Upon a majority vote and the affirmative recommendation of the county manager or elected county executive, and following a public hearing, the board may consolidate departments completely or in part, or may transfer a function from 1 department to another; or the board may, upon the affirmative vote of 2/3 of its members and following a public hearing, consolidate departments completely or in part, or may transfer a function from 1 department to another.

(b) Create additional departments.

(c) Require the county manager or elected county executive to serve as director of a department.' [Emphasis added.]

Thus, 1973 PA 139, supra, makes it clear that the constitutional officers of the county shall not have their powers minimized or divested by the provisions of said Act.

The office of county sheriff is constitutionally created as chief law enforcement officer of a county, with the power and duty to perform all reasonable services within the jurisdiction of their offices, including the preservation of the peace, and the arrest and detention of persons charged with the commission of a public offense. Brownstown Twp v Wayne County, supra. The functions of protecting county buildings and property, and preserving the peace upon such premises, with the power of arrest and custody of persons violating such provisions, are law enforcement functions within the power, authority and responsibility of the county sheriff which may not be delegated to an officer or agency other than the county sheriff. Such functions are not conferred upon the county executive by 1973 PA 139, supra, but are reserved to the county sheriff by that act; a county executive of an optional unified county is precluded by 1973 PA 139, supra, from exercising the law enforcement powers conferred by general law on the county sheriff. For the same reason, the board of commissioners of an optional unified county may not confer the powers of the sheriff upon the county executive.

Oakland County Miscellaneous Resolution No. 7211, supra, provides for certain duties and responsibilities of the security [public safety] division, which essentially requires that members of the division serve as peace officers. In order for them to perform their duties effectively, it is implicit that they be able to function as peace officers with power to arrest and detain violators.

It is my opinion, therefore, that an optional unified county board of commissioners may not confer law enforcement functions upon a security (public safety) division which impinge upon the constitutional responsibility of the county sheriff to supervise law enforcement within the county.

The answer to your first question makes it unnecessary to answer your other questions.

Frank J. Kelley

Attorney General

(1) Oakland County has adopted the optional unified form of county government pursuant to 1973 PA 139; MCLA 45.551 et seq; MSA 5.302(51) et seq.

(2) 1978 PA 614 amended 1905 PA 80 by adding to the title 'the governing body of a municipal corporation'; however, this term was not added in the body of 1905 PA 80, as amended, supra, and the substantive provisions of 1905 PA 80, as amended, supra, confer no powers upon municipal corporations. The law is well settled that while the title to an act states the object of the act, it is the enactment, without resort to the title, which makes the law. People v Smith, 246 Mich 393; 224 NW 402 (1929). It must follow that 1905 PA 80, supra, does not confer authority upon a county board of commissioners to establish a public safety division thereunder. Even assuming that this defect was attempted to be cured by subsequent amendment, the implementatin of 1905 PA 80, supra, by a county would require exercise of such law enforcement functions by the appropriate county officer or agency.

(3) Following OAG, 1977-1978, No 5304, supra, in a letter opinion to District Judge Richard Benedict, dated May 19, 1981, it was concluded that 'a county employee hired as a police officer but not deputized by the sheriff would have no powers of arrest except as a private citizen.'

 


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