STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6349

March 21, 1986

CONSTITUTIONAL LAW:

Const 1963, art 3, Sec. 2--simultaneously holding offices of assistant prosecuting attorney and city councilperson

INCOMPATIBILITY:

Assistant prosecuting attorney--city councilperson

Const 1963, art 3, Sec. 2, prohibits a person from simultaneously occupying the office of assistant prosecuting attorney and the office of city councilperson.

Mr. Carl J. Marlinga

Prosecuting Attorney

Macomb County

Macomb County Court Building

6th Floor

Mount Clemens, Michigan 48043

You have requested my opinion on the question of whether a person may simultaneously serve as a Macomb County Assistant Prosecuting Attorney and as an elected member of the City Council of East Detroit.

Const 1963, art 3, Sec. 2, provides for a separation of the powers of government:

Const 1963, art 7, Sec. 21, states that the 'legislature shall provide by general laws for the incorporation of cities and villages.' Pursuant to this authority, the Legislature mandated that all home rule city charters shall provide for 'the election of . . . a body vested with legislative power, . . ..' MCL 117.3(a); MSA 5.2073(a).

In compliance with the provisions of MCL 117.3(a); MSA 5.2073(a), the citizens of East Detroit have provided that the Mayor and City Council of East Detroit 'shall constitute the legislative and governing body of said City, possessing all the powers herein provided for, with power and authority to pass such ordinances and adopt such resolutions as they shall deem proper in order to exercise any or all of the powers possessed by said City.' East Detroit Charter, c III, Sec. 2. A person duly elected and serving upon the City Council of East Detroit, accordingly, exercises the powers of the legislative branch of government. Furthermore, there is no provision in Const 1963 expressly authorizing such a city councilperson to exercise powers of the executive branch of government.

The office of prosecuting attorney is a constitutional office whose powers and duties shall be provided for by law. Const 1963, art 7, Sec. 4.

A county prosecutor is charged by statute, inter alia, with the following duties: representing county and state interests in all civil and criminal matters unless the county has retained civil counsel, MCL 49.153; MSA 5.751, MCL 49.72; MSA 5.825; providing legal opinions to county officials where a state, county or county official has an interest or for the discharge of his duties, MCL 49.155; MSA 5.753; seeking the formation of a grand jury and a grand jury investigation, MCL 767.3; MSA 28.943; bringing suit for injunctive or other relief when a public officer of a county, city, township, or village is holding two or more incompatible public offices, MCL 15.184; MSA 15.1120(124); commencing civil actions to compel compliance or to enjoin noncompliance with the Open Meetings Act, MCL 15.269; MSA 4.1800(19), MCL 15.271(1); MSA 4.1800(21)(1); and bringing criminal charges against public officials, including city officials who violate the Open Meetings Act, MCL 15.272; MSA 4.1800(22).

In the performance of the duties of preparing for and conducting trials on behalf of the people, a county prosecutor is a member of and is exercising the powers of the executive branch of government. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693, 698 (1972); People v Dickerson, 164 Mich 148, 153; 129 NW 199, 200-201 (1910). While it also has been held that a prosecuting attorney is a quasi-judicial officer, Schneider v Shepherd, 192 Mich 82, 87-88; 158 NW 182, 184 (1916), Const 1963 does not expressly authorize the prosecutor to exercise the power of authority of the legislative branch of government.

It is clear, then, that a person serving as a county prosecuting attorney, an office within the executive branch of government, may not simultaneously exercise the powers of a city councilperson since the latter office is within the legislative branch of government. Const 1963, art 3, Sec. 2. See, OAG, 1983-1984, No 6176, p 169 (August 16, 1983), and OAG, 1965-1966, No 4467, p 131 (September 20, 1965). Your question is whether this prohibition extends as well to the appointive position of assistant prosecuting attorney.

MCL 49.41; MSA 5.801, authorizes a county prosecuting attorney to appoint an assistant prosecuting attorney. Pursuant to MCL 49.42; MSA 5.802, an assistant prosecutor so appointed may:

Although no Michigan appellate decision appears to have addressed the question, the prevailing rule in other jurisdictions is that the doctrine of separation of powers does not extend to those who are merely employees within a branch of government. As is noted in 16 CJS, Constitutional Law, Sec. 112;

Even assuming that Michigan courts would adopt a similar rule in interpreting the separation of powers commanded by Const 1963, art 3, Sec. 2, however, it is unnecessary to address the question of whether an assistant prosecuting attorney might be classified as a merely ministerial employee exempt from the proscriptions of Const 1963, art 3, Sec. 2.

By virtue of the express provisions of MCL 49.42; MSA 5.802, the Legislature has mandated that assistant prosecuting attorneys 'shall be subject to all the legal disqualifications and disabilities of the prosecuting attorney, . . ..' Pursuant to Const 1963, art 3, Sec. 2, a prosecuting attorney, as a member of the executive branch of government, is prohibited from simultaneously serving as a member of a legislative body such as a city council. It follows, therefore, as a result of the express language of MCL 49.42; MSA 5.802, that this disability extends likewise to an assistant prosecuting attorney. See, OAG, 1977-1978, No 5397, p 677 (November 14, 1978).

It is my opinion, therefore, that a person may not simultaneously occupy the office of assistant prosecuting attorney and the office of city councilperson.

Frank J. Kelley

Attorney General