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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. 6435

April 27, 1987

CONSTITUTIONAL LAW:

Const 1963, art 4, Sec. 25--validity of act limiting authority to adopt policy directive

CORRECTIONS, DEPARTMENT OF:

Authority to promulgate policy directive prohibiting probation or parole officers from carrying weapons while on duty

WEAPONS:

Probation or parole officers carrying weapons while on duty

Probation or parole officers employed by the Department of Corrections may carry concealed weapons only if they either (1) possess permits from a county concealed weapon licensing board to do so, or (2) if they have written authorization from the Director of the Department of Corrections to carry weapons while on duty and/or when traveling to or from work.

1986 PA 271, construed to provide that neither the Director of the Department of Corrections nor the Corrections Commission is authorized to adopt rules, guidelines or policy directives prohibiting probation or parole officers from carrying weapons while on duty, is constitutional under Const 1963, art 4, Sec. 25.

Mr. Robert Brown, Jr.

Director

Michigan Department of Corrections

Stevens T. Mason Building

Lansing, Michigan 48909

You have requested my opinion on the following questions:

1) Whether 1986 PA 271, MCL 791.206(4); MSA 28.2276(4), permits probation or parole officers to carry a handgun (concealed weapon) without obtaining either a valid concealed weapons permit from a local gun board or written authorization from the Director of the Department of Corrections pursuant to MCL 791.231.

2) Whether 1986 PA 271, MCL 791.206(4); MSA 28.2276(4), is constitutional since it appears to amend the statute under which the Director of the Department of Corrections issues permits (MCL 790.231; MSA 28.428) as it applies to probation or parole officers.

Since your questions are related, they will be considered together.

The Legislature has established a county concealed weapon licensing board to consider applications for and to grant concealed weapon permits to qualified persons residing in the county in accordance with MCL 28.421 et seq; MSA 28.91 et seq.

MCL 28.426; MSA 28.93, in pertinent part, provides:

"(1) The prosecuting attorney, the sheriff, and the director of the department of state police, or their respective authorized deputies, shall constitute boards exclusively authorized to issue a license to an applicant residing within their respective counties, to carry a pistol concealed on the person and to carry a pistol, whether concealed or otherwise, in a vehicle operated or occupied by the applicant. The county clerk of each county shall be clerk of the licensing board, which board shall be known as the concealed weapon licensing board. A license to carry a pistol concealed on the person or to carry a pistol, whether concealed or otherwise, in a vehicle operated or occupied by the person applying for the license, shall not be granted to a person unless the person is 18 years of age or older, is a citizen of the United States, and has resided in this state 6 months or more. A license shall not be issued unless it appears that the applicant has good reason to fear injury to his or her person or property, or has other proper reasons, and is a suitable person to be licensed."

A concealed weapon licensing board must determine the "proper reason" for and "suitability" of the applicant for a permit in the exercise of its discretion, based upon consideration of local needs. Hanselman v Wayne County Concealed Licensing Weapon Bd, 419 Mich 168, 189; 351 NW2d 544 (1984). The board is the "exclusive" authority to issue, deny, and revoke permits for concealed weapons. Bay County Concealed Weapons Licensing Bd v Gasta, 96 Mich App 784, 789-790; 293 NW2d 707 (1980).

An examination of the provisions of MCL 28.421 et seq; MSA 28.91 et seq, discloses no legislative bar to a person serving as a state parole or probation officer from applying for and receiving a concealed weapon permit from a county concealed weapon licensing board.

The Michigan Penal Code, MCL 750.227; MSA 28.424, makes it unlawful for a person to carry a concealed pistol, punishable by imprisonment for not more than five years or by fine of not more than $2,500.00. As originally enacted in 1931, MCL 750.231; MSA 28.428, provided an exception from this statute for "any peace officer of this state or any subdivision thereof who is regularly employed and paid by the state or subdivision."

OAG, 1947-1948, No 777, p 695 (June 29, 1948), construed the term "peace officer" contained in MCL 750.231; MSA 28.428, to include probation officers. Thus, probation officers were not required to secure permits from the county concealed weapon licensing board in order to carry concealed weapons.

Thereafter, the Legislature modified the exception from MCL 750.227; MSA 28.424, for "peace officers" by amending MCL 750.231; MSA 28.428, by means of 1958 PA 107:

"The provisions of [section 227] ... shall not apply to any peace officer of the state or any subdivision thereof who is regularly employed and paid by the state or such subdivision, or to any person regularly employed by the state department of corrections, and authorized in writing by the director of the department of corrections to carry a concealed weapon while in the official performance of his duties, or while going to or returning from those duties,...." (Emphasis added.)

This statute was amended, but not in pertinent part, by 1964 PA 215 and 1981 PA 103.

A review of the statutory history of MCL 750.231; MSA 28.428, compels the conclusion that OAG, 1947-1948, No 777, supra, is no longer viable because the Legislature has conditioned the exception for employees of the Department of Corrections not on any status as a peace officer, but rather, upon written authorization by the Director of the Department of Corrections. It follows that a person regularly employed by the Department of Corrections who does not possess a permit to carry a concealed weapon issued by a county concealed weapon licensing board may not carry a concealed weapon while in the performance of duties or while going to or returning from those duties unless the person secures written authorization from the Director of the Department of Corrections to do so.

The Legislature enacted 1986 PA 271 to amend 1953 PA 232, c 1, Sec. 6, MCL 791.206; MSA 28.2276, relating to the rulemaking authority of the Director of the Department of Corrections to add a new subsection (4):

"The director and the corrections commission shall not promulgate a rule or adopt a guideline which prohibits a probation officer, or parole officer from carrying a firearm while on duty."

The underlying intent of 1986 PA 271 may be ascertained by a study of its legislative history. Luttrell v Dep't of Corrections, 421 Mich 93, 103-105; 365 NW2d 74 (1984). HB 5447 was introduced to amend the rule-making authority of the Director of the Department of Corrections "to make it permissive." House Legislative Analysis, HB 5447, December 12, 1986. It was enacted by the House without change. 1986 Journal of the House 1829 (No. 79, July 1, 1986). Subsection (4) was added by amendment of the Senate. 1986 Journal of the Senate 2221, 2225 (No. 75, November 18, 1986). HB 5447 was returned to the House at its request to amend the bill to make a minor change in phraseology. 1986 Journal of the House 2299 (No. 89, November 19, 1986). Upon passage of HB 5447 by the Senate, Senator Kelly made the following statement:

"Just so the members know, the modification that was made in the House that the Senate is about to concur in is welcome in the respect that the department has agreed to develop through the rules and guidelines process more clear procedures so that probation officers and parole officers who are presently having their lives jeopardized by some of the environments that they're dealing in will be given greater latitude in terms of the carrying of firearms. As in the past, they will be required to have certain training standards like other police officers and they will be permitted in situations where the officers are going to the field rather than the offices.

"But, I want it clearly expressed in the record that this is a change in departmental policy as it relates to firearms and will allow those individuals who have requested permission in the past to be licensed to do so by the department. I urge you to concur in the House amendment." 1986 Journal of the Senate 2377 (No. 77, December 2, 1986).

The Senate has passed 1987 Senate Resolution No. 61 expressing the intent of the Senate on the "authorization of Act No. 271 of 1986 pertaining to peace officers who elect to carry firearms on duty." In pertinent part, Resolution No. 61 states:

"The amendment of section 6(4) to Public Act No. 271 mentioned above is intended to make sure that the Department of Corrections does not add discretionary licensure or any requirements for frontline parole or probation officers to follow if they wish to carry firearms in the performance of their duties. Since the department's proposed directive, policy statements, or any other declaration paralleling rules and regulations are contrary to the legislation passed by the Michigan Legislature, nor are any other collatoral burdens or limitations that would have a likewise effect on the rights of parole and probation officers, and therefore they are not bound by these illegal departmental restrictions but by the law of the state, namely Public Act No. 271; now, therefore, be it

"Resolved by the Senate, That it is the intent of the Michigan Legislature that all legal waivers or collatoral requirements including the rules, guidelines, and policy directives issued by the Michigan Department of Corrections pertaining to the circumstances under which a probation or parole officer may carry a firearm while on duty are contrary to Public Act No. 271 of 1986 and that these rules and regulations are a nullity and have no effect whatsoever on those officers who wish to carry a firearm while on duty to fulfill their responsibilities;...." 1987 Journal of the Senate 339 (No. 20, March 3, 1987).

It is noted that Resolution No. 61 was adopted by the Senate succeeding the Senate which passed 1986 PA 271.

The reference to policy directive is obviously aimed at Department of Corrections Policy Directive, PD-DWA-32.01 (September 9, 1983), dealing with concealed weapons permit and firearms control. In pertinent part, it provides:

"Possession of Weapons: No weapon of any kind may be in the possession of an employee while in the official performance of his/her duties, except a knife with a blade two inches or less in length, unless the weapon is authorized by the Department. Members of institution shooting teams may have their personal weapons on prison property for target practice, and while in attendance at Department shooting matches, with the approval of the institution head. Employees may not use general or restricted non-departmental concealed weapons permits as authorization for carrying a weapon while in the performance of their duties.

"Concealed Weapon Permits: In order to receive a Department of Corrections concealed weapon permit, the employee must meet all of the following requirements:

"(1) Institution employees must be approved by the Warden or Superintendent to carry a handgun.

"(2) Employees of the Bureau of Field Services must be approved by the Deputy Director, BFS, to carry a handgun; such approval shall be granted only if there is reason to believe that the employee is in imminent danger of death or serious physical injury or if the employee is involved in the transporting of prisoners or parolees.

"(3) Receive basic firearms training, including gun safety instruction; and qualify annually with the type of weapon carried, as set forth in PD-DWA-32.03.

"(4) Have attained full Civil Service status.

"An employee who is authorized to carry a concealed weapon is allowed by law to carry the weapon only while in the official performance of his/her duties or while going to or returning from such duties. No employee shall possess a concealed weapon while on duty unless that employee has been issued a Department of Corrections concealed weapon permit which has been signed by the Director."

Although a member of the Legislature may not testify in a court of law as to the intent of the Legislature in enacting a statute, Bd of Education of Presque Isle Twp School Dist No. 8 v. Presque Isle County Bd of Education, 364 Mich 605, 611-612; 111 NW2d 853 (1961), the statement of legislators recorded in legislative journals is entitled to respectful consideration. The Resolution enacted by the 1987 Senate is also worthy of consideration, even though 1986 PA 271 was passed by an earlier Senate. See, Boyer-Campbell Co v Fry, 271 Mich 282; 260 NW 165 (1935).

A fair reading of these documents supports the intent of the Legislature expressed in MCL 791.206(4); MSA 28.2276(4), as added by amendatory 1986 PA 271. Neither the Director of the Department of Corrections nor the Corrections Commission shall promulgate a rule or adopt a guideline which prohibits a probation officer or a parole officer from carrying a firearm while on duty. The commonly understood meaning of the term "guideline" is "an outline of future policy or conduct." Webster's Third New International Dictionary (1964).

It follows that by enactment of 1986 PA 271, the authority of the Director of the Department of Corrections to adopt certain portions of Department of Corrections Policy Directive, PD-DWA-32.01, Possession of Weapons and Concealed Weapon Permit, as they apply to probation or parole officers, has been withdrawn by the Legislature and such provisions are void. It is noted that the Legislature has not prohibited the Director of the Department of Corrections or the Corrections Commission from adopting reasonable regulations of the possession of such weapons by probation or parole officers while on duty.

Whether amendatory 1986 PA 271 was intended to remove the requirement of written authorization by the Director of the Department of Corrections from MCL 750.231; MSA 28.428, in order for probation or parole officers to carry concealed weapons while performing their duties or while on their way to or from work and once again clothe them with the status of peace officer presents a more difficult question.

If the Legislature seeks to amend a statute, Const 1963, art 4, Sec. 25, requires reenactment and publication at length of the statute to be amended. Alan v. Wayne County, 388 Mich 210, 268-288; 200 NW2d 628; 67 ALR3d 1079 (1972). However, reenactment and publication is not mandated if the Legislature enacts a complete statute and portions of it amend existing statutes by implication. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 476-477; 208 NW2d 469 (1973).

Amendatory 1986 PA 271 is by no means a complete act. If its intent is to amend MCL 750.231; MSA 28.428, Const 1963, art 4, Sec. 25, requires reenactment and publication of that statute.

If possible, the language of amendatory 1986 PA 271 should be given a constitutional construction. Such a construction is favored. See, e.g., Sullivan v. Michigan State Bd of Dentistry, 268 Mich 427; 256 NW 471 (1934).

Amendatory 1986 PA 271 may readily be given a constitutional construction by reading its provisions to apply only to the limitation upon the power of the Director of the Department of Corrections and the Corrections Commission to promulgate rules, guidelines, and policy directives prohibiting probation or parole officers from carrying weapons while on duty.

If the Legislature wishes to exempt probation and parole officers from the application of MCL 750.227; MSA 28.424, it may do so in compliance with Const 1963, art 4, Sec. 25, by suitable amendment to MCL 750.231; MSA 28.428, to include these officers within the definition of "peace officers" and by excising the requirement that written authorization of the Director of the Department of Corrections be secured to carry concealed weapons.

It is my opinion, therefore, that probation officers or parole officers employed by the Department of Corrections may carry concealed weapons only if they either (1) possess permits from a county concealed weapon license board to do so, or (2) if they have written authorization from the Director of the Department of Corrections to carry weapons while on duty and/or when traveling to or from work.

It is my further opinion that 1986 PA 271, construed to provide that neither the Director of the Department of Corrections nor the Corrections Commission is authorized to adopt rules, guidelines, or policy directives prohibiting probation officers or parole officers from carrying weapons while on duty, is constitutional under Const 1963, art 4, Sec. 25.

Frank J. Kelley

Attorney General


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