Opinion #6768

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. 6768

September 10, 1993

COUNTIES:

Authority of a county board of commissioners to appoint a controller

The 1976 defeat of a countywide ballot proposal for the establishment of the office of county controller does not limit the authority of the county board of commissioners in that county to appoint a controller pursuant to MCL 46.13b; MSA 5.336.

Honorable David C. Hollister

State Representative

The Capitol

Lansing, Michigan

You have asked whether the 1976 defeat of a countywide ballot proposal for the establishment of the office of county controller limits the authority of the county board of commissioners in that county to appoint a controller.

County boards of commissioners are expressly authorized to appoint county controllers by MCL 46.13b; MSA 5.336, which provides, in pertinent part, as follows:

The board of supervisors [now commissioners, MCL 46.416; MSA 5.359(16) ] in any county other than counties operating under elected boards of auditors unless presently operating with a county controller, by a majority vote of its members-elect, may appoint a county controller ... and fix the salary, to be paid in like manner as the salaries of other county officers are paid.

That statutory section also prescribes the powers and duties of a county controller, in pertinent part, as follows:

The controller shall be the chief accounting officer of the county.... The controller shall examine regularly the books and accounts of the several officers, agents, and departments of the county.... The controller shall make all purchases ... which may be required by the county or its officers and agents, the purchase of which is not otherwise provided for by law.... The controller shall be the custodian of and have charge of the operation, maintenance and repairs of the county courthouse and grounds.... The controller shall perform such other duties as the board of supervisors may impose.

The position of county controller is created by resolution of the county board of commissioners and appointment is made by vote of the majority of the members-elect of the board. MCL 46.13b; MSA 5.336; VerBurg, Guide to Michigan County Government (East Lansing, MI; Michigan State University, 2d Ed, 1987) p 73.

The authority of a county board of commissioners to appoint a controller was recognized in Ottawa County Clerk v Ottawa County Bd of Comm'rs, 428 Mich 300, 304; 407 NW2d 384 (1987). See also, OAG, 1979-1980, No 5711, p 793 (May 22, 1980). OAG, 1991-1992, No 6714, p 133 (March 9, 1992), noted that because the appointment of a county controller is discretionary, the county board of commissioners is not required to fill a vacancy in the office of county controller.

Accompanying your request is a letter from two citizens which refers to, but does not identify, an opinion of the Attorney General which they apparently believe to have a bearing on this matter. A member of your staff has told my office that the referenced opinion is OAG, 1985-1986, No 6411, p 444 (December 19, 1986). That opinion considered, inter alia, the authority of a county board of commissioners to place a proposal on the ballot seeking binding authority to transfer a county hospital to a private, nonprofit corporation. The opinion concluded that a county board of commissioners may not, without constitutional or statutory authority, schedule an election for the consideration of the question by the electorate. Id at 447.

Although the Legislature has provided for the vote of the county's electors, for example, on the question of an optional unified form of government, MCL 45.553; MSA 5.302(53), and on the question of adoption of regulations and ordinances upon the written petition of the electors, MCL 46.11(m); MSA 5.331(m), the Legislature has not provided for a vote of the county electors on the question of appointment of a county controller. On the contrary, MCL 46.13b; MSA 5.336, specifically authorizes a county board of commissioners to appoint a county controller at its discretion. OAG, 1991-1992, No 6714, supra.

It is my opinion, therefore, that the 1976 defeat of a countywide ballot proposal for the establishment of the office of county controller does not limit the authority of the county board of commissioners in that county to appoint a controller pursuant to MCL 46.13b; MSA 5.336.

Frank J. Kelley

Attorney General