STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6522

June 8, 1988

SHERIFFS: Designation of alternate by sheriff to serve on county concealed weapon license board

WEAPONS: Membership on county concealed weapon license board

A county sheriff may not appoint a special deputy sheriff who is uncertified as a law enforcement officer to serve as the sheriff's representative upon the county concealed weapon license board.

A county sheriff is without authority to appoint as the sheriff's representative on the county concealed weapon license board a person who is not an employee of the county sheriff.

Mr. Robert E. Weiss

Genesee County Prosecuting Attorney

100 Court House

Flint, Michigan 48502

You have requested my opinion with respect to two questions, the first of which is:

A county sheriff may, by statute, appoint deputy sheriffs to assist him or her in the performance of the sheriff's duties. The Legislature has conferred this authority under RS 1846, c 14, Sec. 70, MCL 51.70; MSA 5.863, which provides, in pertinent part:

While the above statute plainly authorizes the appointment of deputies to assist in the performance of the sheriff's duties, the appointees' powers are not uniform. MCL 51.70; MSA 5.863 distinguishes between deputies appointed by the sheriff to generally assist in the performance of the sheriff's duties and 'special deputies' who are only appointed to perform 'particular acts.' Appointment of special deputies was first authorized by amendment to this statute by 1954 PA 137.

Your first question relates to the powers of the sheriff to appoint a special deputy to serve on the county concealed weapon license board. Specifically, you ask whether a county sheriff may name a special deputy who is not a certified police officer to serve as his or her representative on the county concealed weapon license board.

The Michigan Law Enforcement Officers Training Council Act of 1965, 1965 PA 203, Sec. 9, MCL 28.609; MSA 4.450(9), provides that no person may be employed after January 1, 1977 as a law enforcement officer and empowered to exercise all the authority of a peace officer unless the person complies with the mandatory training requirements of the Law Enforcement Officers Training Council (LEOTC) and is certified under the Act. Persons with restricted or special police powers who 'are not responsible for the enforcement of the general criminal laws of the state' are not law enforcement officers certified by the LEOTC. OAG, 1977-1978, No 5133, p 83, 84 (April 1, 1977). In the office of the county sheriff, only the sheriff is exempted from the basic training requirements imposed under the Act. OAG, 1979-1980, No 5633, p 565 (January 28, 1980). A special deputy failing to comply with the minimum employment standards of the Michigan Law Enforcement Officer's Training Council Act of 1969 may not exercise the authority of a peace officer.

1927 PA 372, Sec. 6, MCL 28.426(1); MSA 28.93, authorizing the creation of concealed weapon license boards, provides:

The state has a legitimate interest in limiting public access to weapons suitable for criminal purposes and the constitutionally guaranteed right to bear arms is subject to a reasonable exercise of the police power. People v. Brown, 253 Mich. 537, 541; 235 NW 245 (1931).

The purpose of a county concealed weapon license board is to review and pass upon citizen applications for authorization to carry concealed weapons. The board members must exercise sound discretion and judgment in assessing the individual needs of those seeking licensure so as to protect the public from the potential danger posed by individuals possessing concealed weapons. Bay County Concealed Weapons Licensing Bd v Gasta, 96 Mich App 784; 293 NW2d 707 (1980).

While MCL 28.426(1); MSA 28.93, authorizes a sheriff to assign a deputy to the board in his or her place, there is no indication whether that delegation may also be made to a special deputy not certified as a law enforcement officer by the LEOTC.

In interpreting MCL 51.70; MSA 5.863, the primary objective is to ascertain and give effect to the legislative intent. Luttrell v Dep't of Corrections, 421 Mich. 93; 365 NW2d 74 (1984).

The court in Gasta, supra, 96 Mich App at 789-790, expressed the concern that only law enforcement officers serve on a county concealed weapon license board:

Further, the presence of law enforcement officials on a concealed weapon license board 'reflects the Legislature's intent that power to issue and revoke such licenses is properly placed with those professionals most able to assess community needs and problems in this area.' Gasta, supra, 96 Mich App at 791.

Joseph v Patterson, 795 F2d 549, 558 (CA6, 1986), adopted Gasta's reasoning and affirmed the notion that the decision to issue or deny a permit to carry a concealed weapon should be made by a licensing board comprised of professional law enforcement officials.

Michigan is not alone in reposing in law enforcement official professionals the authority to issue or deny a permit to carry a concealed weapon. In Rhode Island, the licensing authority has been delegated 'to those who by reason of their training and experience and the facilities at their command [are] probably more competent than any others to exercise the delegated power' to license the possession of pistols or revolvers. State v Storms, 112 RI 121, 128; 308 A2d 463, 467 (1973). The Massachusetts Supreme Court has held that firearms control legislation is aimed at limiting access to deadly weapons by irresponsible persons and law enforcement authorities have been given 'considerable latitude' in exercising their licensing power. Ruggiero v Police Comm'r of Boston, 464 NE2d 104 (Mass App, 1984).

Because a special deputy appointed to perform certain acts is not a peace officer responsible for the enforcement of the general criminal laws of the state, the special deputy is not the law enforcement professional contemplated by the Legislature to serve on a county concealed weapon license board.

It is my opinion, in answer to your first question, that a county sheriff may not appoint a special deputy sheriff who is uncertified as a law enforcement officer to serve as the sheriff's representative on the county concealed weapon license board.

Your second question is:

MCL 28.426(1); MSA 28.93, expressly provides that the sheriff or his or her 'authorized' deputy may serve on a county concealed weapon license board. The sheriff may appoint a regular deputy sheriff to serve upon the board as concluded in the answer to your first question. The statute does not authorize the appointment of a person who is not in the employ of the county to serve in the place of the county sheriff on the county concealed weapon license board.

It is my opinion, in answer to your second question, that a county sheriff is without authority to appoint as the sheriff's representative on the county concealed weapon license board a person who is not an employee of the county sheriff.

Frank J. Kelley

Attorney General