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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. 6556 December 28, 1988 PROSECUTING ATTORNEY: Designation of investigator to serve on county concealed weapon licensing board WEAPONS: Membership on county concealed weapon licensing board A county prosecuting attorney may not appoint an investigator, even though a fully certified police officer, to serve as the prosecuting attorney's authorized deputy on a county concealed weapon licensing board. Mr. Paul L. Maloney Berrien County Prosecuting Attorney Berrien County Courthouse 811 Port Street St. Joseph, MI 49085 You have requested my opinion with respect to the following question: May a county prosecuting attorney appoint as his or her "authorized deputy" on the county concealed weapon licensing board a full-time certified police officer/investigator employed by the prosecutor? 1927 PA 372, Sec. 6(1), MCL 28.426(1); MSA 28.93(1), authorizes the creation and provides membership of a county concealed weapon licensing board as follows: "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. ..." (Emphasis added.) The purpose of a county concealed weapon licensing board is to review and pass upon citizen applications for permits to carry concealed weapons and exercise its sound discretion in issuing such permits only when the needs of the applicant and the potential danger posed by the concealed weapon to society are considered. Bay County Concealed Weapons Licensing Bd v Gasta, 96 Mich App 784; 293 NW2d 707 (1980); OAG, 1987-1988, No 6522, p 334 (June 8, 1988). The prosecuting attorney is empowered by statute to appoint assistant prosecutors and other employees as authorized by the county board of commissioners. 1925 PA 329, Sec. 1, MCL 49.31; MSA 5.791. An assistant prosecuting attorney is empowered and has the responsibility to perform any and all duties pertaining to the office of the prosecuting attorney. 1911 PA 41, Sec. 2, MCL 49.42; MSA 5.802, sets forth the duties and responsibilities of assistant prosecuting attorneys, as follows: "Any such assistant prosecuting attorney shall hold his office during the pleasure of the prosecuting attorney appointing him, perform any and all duties pertaining to the office of prosecuting attorney at such time or times as he may be required so to do by the prosecuting attorney and during the absence or disability from any cause of the prosecuting attorney, but he shall be subject to all the legal disqualifications and disabilities of the prosecuting attorney, and shall before entering upon the duties of his office take and subscribe the oath of office prescribed by the constitution of this state and file the same with the county clerk of his county. ..." An assistant prosecuting attorney may perform all the duties of the prosecuting attorney in his or her absence and those assigned by the prosecuting attorney when the prosecutor is not absent. The statutes do not authorize the delegation of the power of the prosecuting attorney to employees such as investigators, clerks, stenographers or other clerical employees. Your question hinges on what the term "authorized deputies" means in 1927 PA 372, Sec. 6(1), MCL 28.426(1); MSA 28.93(1). The primary objective in interpreting legislation is to ascertain and give effect to what the Legislature intended. Luttrell v Dep't of Corrections, 421 Mich 93; 365 NW2d 74 (1984). The word "deputy" has been defined in some reference sources, as: "A substitute; a person duly authorized by an officer to exercise some or all of the functions pertaining to the office, in the place and stead of the latter. ... One appointed to substitute for another with power to act for him in his name or behalf." Black's Law Dictionary, 5th Edition, (1979). "[A] person appointed, ... as the substitute of another and empowered to act for him, in his name, or in his behalf. [A] second in command or an assistant who usu. takes charge when his superior is absent." Webster's Third New International Dictionary, Unabridged Edition (1964). A deputy has often been defined as that person who acts as a substitute for his principal with full and complete authority to do every act that the principal could himself perform. In 63A Am Jur 2nd, Public Officers and Employees, Sec. 565, p 1074, the difference between an assistant and deputy is set forth as follows: "Among the principal aides to public officers are deputies and assistants. ... An assistant is one who aides, helps, or assists, while a deputy is a person appointed to act for another, a substitute or delegate who acts officially for his principal. ... A deputy, it has been said, is a person appointed as the substitute of another and empowered to act for him in his name and behalf in all matters in which the principal may act." In Martindale v Honey, 259 Ark 416; 533 SW2d 198, 199 (1976), the court defined a deputy as follows: "Somewhat by definition, there is a distinction between deputies and assistants. Ordinarily, a deputy acts officially for another, as a substitute, and by his appointment exercises the office in his principal's right or name, his acts being of equal force with those of the officer himself." Accord: Blackburn v Brorein, 70 So2d 293, 296 (Fla, 1954); Sanchez v Murphy, 385 F Supp 1362, 1364 (D Nev, 1974). The Iowa Supreme Court in Woodman Accident Co v District Court, 219 Iowa 1326; 260 NW 713, 715 (1935), stated: "A deputy of an officer is defined to be 'one appointed as the substitute of another and empowered to act for him, in his name or on his behalf.' Webster's New International Dictionary. A deputy has also been defined as: 'One appointed as the substitute of another, and empowered to act for him in his name or on his behalf; one who is appointed, designated, or deputed to act for another; one who by appointment exercises an office in another's right. The position of a "deputy", as the word implies, is that of a subordinate. ...' " OAG, 1987-1988, No 6522, supra, considered the question whether a sheriff was required to appoint only certified deputy sheriffs as his representative to the county concealed weapon licensing board, and concluded that the Legislature intended that permits for concealed weapons be reviewed by law enforcement officials with their unique knowledge of the dangers and responsibilities involved. A sheriff could not appoint a special deputy or non-member of his department to the board as his representative because such persons would not be the law enforcement professional contemplated by the Legislature in adopting the concealed weapon licensing law. In your question you indicate that the proposed representative on the board would be a certified police officer who is employed as an investigator. My reading of the concealed weapon licensing law requires that the representative be an authorized deputy. To be a deputy one must have the authority to act on behalf of one's principal in all matters. An investigator, although a certified law enforcement officer, does not have the authority to act on behalf of the prosecuting attorney in all matters. The only persons who may be authorized to act on behalf of the prosecuting attorney in all matters are assistant prosecuting attorneys. It is my opinion, therefore, that a prosecuting attorney may not appoint an investigator, even though a fully certified police officer, to serve on behalf of the prosecuting attorney on a county concealed weapon licensing board. Frank J. Kelley Attorney General
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