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



INCOMPATIBILITY:

PUBLIC OFFICES AND OFFICERS:

SHERIFFS:

Sheriff simultaneously serving as village police chief


A county sheriff may not simultaneously serve as a village police chief.


Opinion No. 6987

June 24, 1998


Honorable Allen Lowe
State Representative
The Capitol
Lansing, Michigan 48913


You have asked whether a county sheriff may simultaneously serve as a village police chief.

Const 1963, art 7, 4, establishes the office of sheriff in each county as follows:

There shall be elected for four-year terms in each organized county a sheriff, a county clerk, a county treasurer, a register of deeds and a prosecuting attorney, whose duties and powers shall be provided by law.

Const 1963, art 7, 6, expressly prohibits a sheriff from holding other offices.

The sheriff may be required by law to renew his security periodically and in default of giving such security, his office shall be vacant. The county shall never be responsible for his acts, except that the board of supervisors may protect him against claims by prisoners for unintentional injuries received while in his custody. He shall not
hold any other office except in civil defense.


(Emphasis added.)

OAG, 1975-1976, No 4969, p 352 (March 24, 1976), explains the distinctions between the terms public office and public position. That opinion, which concluded that a county sheriff may also hold the position of county political party executive committee treasurer, relied upon criteria adopted in People v Freedland, 308 Mich 449; 14 NW2d 62 (1944), to determine whether a particular position constitutes a public office. There, the Michigan Supreme Court stated at pp 457-458 as follows:

"'[W]e hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislation; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a
superior officer or body; (5) it must have some permanence and continuity, and not be only temporary or occasional.'"

(citation omitted).

The court in Freedland, supra, also recognized that the requirements of taking an official oath and of posting an official bond, while not controlling, are factors to be considered in determining whether a particular position constitutes a public office. In addition, the determination of whether a position constitutes a public office necessarily involves a consideration of legislative intent. Id. at 457.

The general law villages act, 1895 PA 3, MCL 61.1 et seq; MSA 5.1201 et seq, provides for the incorporation of villages and defines their powers. The village marshal, who is the village chief of police (Ch 4, section 13), shall be appointed by the village president, by and with the consent of the village council. Ch 2,
section 2(1). The village marshal, who is subject to the direction of the village president and council, shall see that all ordinances and regulations are enforced and is vested with all powers conferred upon sheriffs regarding the preservation of quiet and good order. Ch 4, section 13. As an appointed village officer, the village marshal is required to take the oath of office prescribed by the state constitution (Ch 2, section 7) and must file such bond or security as required by law, by ordinance, or by resolution of the village council. Ch 2, section 8.

Application of the foregoing criteria to the duties of village police chief compels the conclusion that the position of village police chief constitutes a public office. Thus, the Const 1963, art 7,  6, proscription against dual office holding by a county sheriff prohibits a county sheriff from simultaneously serving as a village police chief.

It is my opinion, therefore, that a county sheriff may not simultaneously serve as a village police chief.


FRANK J. KELLEY
Attorney General


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