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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)



Opinion No. 6288

April 24, 1985


Representation of county executive

A prosecuting attorney may represent the county executive of the county, and in doing so, is discharging statutory duties imposed by the Legislature.

Honorable John M. Engler

State Senator

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the following question:

'Can the prosecuting attorney represent the county executive or would those positions be incompatible?'

Your letter of request indicates that your question is prompted by your study of OAG, 1977-1978, No 5261, p 339 (February 1, 1978), which concluded that the offices of prosecuting attorney and municipal attorney of a municipality in the same county are incompatible.

The office of prosecuting attorney is a constitutional office with powers and duties prescribed by law. Lawrence Scudder & Co v County of Emmett, 288 Mich 181; 284 NW 691 (1939); Schneider v Shepherd, 192 Mich 82, 88; 158 NW 182 (1916).

Const 1963, art 7, Sec. 4, in pertinent part, provides:

'There shall be elected for four-year terms in each organized county a sheriff, a county clerk, a county treasurer, a register of deeds and a prosecuting attorney, whose duties and powers shall be provided by law. . . .'

Among the duties imposed by law upon the prosecuting attorney, MCL 49.155; MSA 5.753, requires the prosecuting attorney to 'give opinions in cases where this state, a county, or a county officer may be a party or interested, when required by a civil officer in the discharge of the officer's respective official duties relating to interests of the state or county.'

MCL 49.153; MSA 5.751, provides:

'The prosecuting attorneys shall, in their respective counties, appear for the state or county, and prosecute or defend in all the courts of the county, all prosecutions, suits, applications and motions, whether civil or criminal, in which the state or county may be a party or interested.'

A county executive of a county which has adopted an optional form of government, MCL 45.552; MSA 5.302(52), and a county executive of a charter county, MCL 45.514; MSA 5.302(14); MCL 45.511a; MSA 5.302(11a), are county officers.

A prosecuting attorney, in rendering opinions to or otherwise representing the county executive of the county, does so pursuant to authority conferred upon the officer by the Legislature.

It is noted that the Legislature has imposed no duty upon a prosecuting attorney to serve as a municipal attorney of a municipality in the county. Therefore, unlike OAG, 1977-1978, No 5261, supra, a prosecuting attorney who renders opinions to or otherwise represents the county executive of the county is performing a duty imposed upon the office by law.

MCL 15.182; MSA 15.1120(122), prohibits a public officer to hold two or more incompatible offices at the same time. The prosecuting attorney, in rendering such opinions or providing such representation, continues to occupy the office of prosecuting attorney only, and no other office, so that the incompatibility of offices is not in question.

It is my opinion, therefore, that a prosecuting attorney may represent the county executive of the county, and in doing so, is discharging statutory duties imposed by the Legislature.

Frank J. Kelley

Attorney General

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