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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. 6253 October 25, 1984 BAILIFFS: Public office of bailiff of Thirty-Sixth District Court COURTS, DISTRICT: Bailiffs of Thirty-Sixth District Court are public officers Bailiffs of the Thirty-Sixth District Court are public officers and are not independent contractors. Honorable Virgil C. Smith, Jr. State Representative State Capitol Lansing, Michigan You have requested my opinion whether bailiffs of the Thirty-Sixth District Court (City of Detroit) who were grandfathered into their positions by 1961 PA 236, Sec. 8322; MCLA 600.8322; MSA 27A.8322, are court employees or independent contractors. Although a vacancy in the position of bailiff of those grandfathered under 1961 PA 236, Sec. 8322(1) and (2), supra, may not be filled, appointments may be made to the office of bailiff of the Thirty-Sixth District Court by the chief judge at such time as the grandfathered incumbents no longer hold such offices. Non-grandfathered appointees are court officers who are employees of the state judicial council. 1961 PA 236, Sec. 8322(4) and (5), supra. All bailiffs under consideration are grandfathered appointees, so to speak. Therefore, this opinion refers only to grandfathered bailiffs. 1961 PA 236, Sec. 8322(1) and (2), supra, provides that persons serving as bailiffs in the Common Pleas Court on August 31, 1981 shall become bailiffs of the District Court of the Thirty-Sixth District on September 1, 1981. This section also set the salary, compensation and benefits of these bailiffs: '(6) A bailiff serving civil process pursuant to subsection (1) or (2) shall be compensated by salary and the fees and mileage prescribed in section 8326. A full-time bailiff, as defined by the state judicial council, shall receive from the state a $20,000.00 annual salary. For each part-time bailiff, as defined by the state judicial council, the council shall establish a salary which is a pro rata portion of $20,000.00 based on that portion of a full-time bailiff's workload to be assigned to the bailiff. A bailiff covered by this subsection shall not be entitled to any compensation from the state other than that specifically authorized in this subsection. '(7) A bailiff serving civil process pursuant to subsection (1) or (2) shall not become a member of the state employees' retirement system created by Act No. 240 of the Public Acts of 1943, as amended, being sections 38.1 to 38.47 of the Michigan Compiled Laws. Beginning September 1, 1981, the state shall contribute to the retirement system in which the bailiff is a member on August 31, 1981, an amount equal to the amount which the state would have contributed to the state employees' retirement system pursuant to Act No. 240 of the Public Acts of 1943, as amended, if the bailiff had become a member of the state employees' retirement system, based on the salary paid by the state pursuant to subsection (6). Beginning September 1, 1981, each bailiff shall continue to contribute to the retirement system in which the bailiff is a member on August 31, 1981, as required by ordinance, based on salary and fees received pursuant to subsection (6), except mileage.' Bailiffs, besides receiving a set salary and the benefit of employer contributions to their retirement system, also collect fees and mileage as part of their compensation. In 1961 PA 236, Sec. 8322(1) and (2), supra, it is provided that the bailiff shall be considered a 'court officer.' In Gray v Clerk of Common Pleas Court, 366 Mich 588; 115 NW2d 411 (1962), which involved the removal of a bailiff of the Common Pleas Court, the court refers to the position of bailiff of that court as an office and to the bailiff as a public officer. The court, in the case of In Re Cartwright, 363 Mich 143; 108 NW2d 865 (1962), referred to the bailiff as a public officer and to the position of bailiff as a public office. In People v Freedland, 308 Mich 449, 457-458; 14 NW2d 62 (1944), the court set forth the criteria upon which a determination is to be made as to whether a public position is that of an employee or an officer by adopting the rule laid down in State ex rel Barney v Hawkins, 79 Mont 506; 257 Pac 411, 418 (1927): "After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. . . ." Meiland v Wayne Probate Judge, 359 Mich 78, 87; 101 NW2d 336 (1960). The positions of bailiffs for such court are provided for by 1961 PA 236, Sec. 8322, supra. This fulfills the first requirement that the office be created by constitution or the Legislature. Each of the positions carries with it the delegation of a portion of the sovereign power of government, in that each holder of such position performs functions and duties prescribed by statute, all of which are exercised for the benefit of the public. Further, the functions and duties are performed in accordance with the powers conferred by the Legislature. Therefore, both the second and third requirements of the rule approved in People v Freedland, supra, are fulfilled. The functions and duties performed by the bailiffs are those performed by inferior or subordinate officers, who are placed under the general control of their superiors, in this case being the district court. See, Gray v Clerk of Common Pleas Court, supra, at 592. Thus, the fourth requirement is satisfied. Lastly, the position possesses permanence and continuity, in that the persons appointed to these positions are appointed for a definite period of time. See, Drolshagen v County of Wayne, 283 Mich 569, 573; 278 NW 690 (1938). It may, thus, be concluded that the grandfathered bailiffs are officers of the court holding the public office of bailiff. Since the office of bailiff of the Thirty-Sixth District Court is a public office, the person occupying such office may not be considered an independent contractor. It is my opinion, therefore, that a bailiff who was grandfathered into the office of bailiff in the Thirty-Sixth District Court is neither an employee nor an independent contractor but, rather, is an officer of the court holding the public office of bailiff. Frank J. Kelley Attorney General
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