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

JENNIFER M. GRANHOLM, ATTORNEY GENERAL


COMMISSION ON LAW ENFORCEMENT STANDARDS:

CONSTITUTIONAL LAW:

COUNTIES:

LAW ENFORCEMENT:

LAW ENFORCEMENT OFFICERS TRAINING COUNCIL:

SHERIFFS:


Physical fitness standards for county undersheriff

Sheriff's authority to appoint undersheriff


The Commission on Law Enforcement Standards Act, which mandates the adoption of minimum physical fitness requirements for undersheriffs, does not unconstitutionally restrict a sheriff's authority to select an undersheriff.

Section 486 of the Michigan Penal Code does not exempt an undersheriff, whether acting as an administrative assistant or as a law enforcement officer, from compliance with minimum physical fitness standards mandated by the Commission on Law Enforcement Standards Act.


Opinion No. 7025

July 8, 1999


Honorable Paul Tesanovich
State Representative
The Capitol
Lansing, Michigan 48913


You have raised several questions regarding the nature and extent of a county sheriff's authority to appoint a county undersheriff.

Your first three questions ask whether the Commission on Law Enforcement Standards Act, which mandates the adoption of minimum physical fitness standards for undersheriffs, unconstitutionally restricts a sheriff's authority to select an undersheriff.

RS 1846, c. 14; MCL 51.68 et seq; MSA 5.861 et seq, provides for the selection, powers, and duties of sheriffs, undersheriffs, and deputy sheriffs. A county sheriff shall "appoint some proper person under sheriff of the same county, who shall also be a general deputy, to hold during the pleasure of such sheriff." Section 71. (Emphasis added.) In the event of the sheriff's death, or a vacancy in that office, the undersheriff becomes acting sheriff until a successor is elected or appointed and qualifies for that office. Section 72; Attorney General ex rel Finley v Fawcett, 263 Mich 288, 292; 248 NW 624 (1933); OAG, 1930-1932, p 610, 612 (June 22, 1932); OAG, 1981-1982, No 5874, p 116 (April 16, 1981).

The Michigan Law Enforcement Training Council Act (Act), 1965 PA 203, MCL 28.601 et seq; MSA 4.450(1) et seq, created the Law Enforcement Officers Training Council and provided its funding mechanism. Through 1998 PA 237, the Legislature amended the Act, to reconstitute the former Michigan Law Enforcement Officers Training Council (MLEOTC) as the Commission on Law Enforcement Standards (COLES). Section 3(1), as amended. The COLES shall promulgate rules establishing law enforcement officer standards for certification, including minimum standards of physical fitness. Section 9(1)(a), as amended.

A study of the Act's history discloses that, as originally enacted, section 2c excluded both the sheriff and the undersheriff from the minimum certification standards imposed by section 9. This exclusion for both the sheriff and undersheriff was deleted by 1968 PA 220. By enacting 1970 PA 187, the Legislature amended section 9(1)(e) to reinstate the exclusion but only for the sheriff. Relying upon this history, OAG, 1979-1980, No 5633 pp 565, 566-567 (January 28, 1980), concluded that the Legislature did not exempt undersheriffs from the minimum certification standards imposed by the Act.

The office of county sheriff is a constitutional office, Labor Mediation Bd v Tuscola County Sheriff, 25 Mich App 159, 162; 181 NW2d 44 (1970), established by the people in Const 1963, art 7, 4, "whose duties and powers shall be provided by law." Id. The Legislature may vary the duties of a constitutional officer, but it cannot so alter them as to change the office. Allor v Wayne County Bd of Auditors, 43 Mich 76, 102-103; 4 NW 492 (1880). The test is whether section 9 of the Act, as amended by 1998 PA 237, changes the sheriff's duties "so as to destroy the power to perform the duties of the office." Brownstown Twp v Wayne County, 68 Mich App 244, 248; 242 NW2d 538 (1976). The Michigan Supreme Court has enumerated the sheriff's fundamental duties under the common law, which include executing court orders, judgments and process; preserving the peace; arresting and detaining persons charged with crimes; and service of papers. White v East Saginaw, 43 Mich 567, 570; 6 NW 86 (1880).

The question to resolve, therefore, is whether section 9(1)(a) of the Act, as amended by 1998 PA 237 to require that an undersheriff meet minimum physical fitness standards to be promulgated by the COLES, destroys the sheriff's power to perform his or her common law duties.

While the imposition of minimum physical fitness requirements does limit a sheriff's selection of an undersheriff, this does not destroy the sheriff's power to perform the duties of that office. Moreover, by mandating that the COLES adopt minimum physical fitness standards for undersheriffs, the Legislature has not delegated to the COLES the authority to appoint an undersheriff. That authority remains with the county sheriff who is free to appoint a qualified person to serve as undersheriff, providing that such appointee meets minimum physical fitness standards to be adopted by the COLES. Thus, section 9(1)(a) of the Act, as amended by 1998 PA 237, does not violate Const 1963, art 7, 4.

It is my opinion, therefore, in answer to your first three questions, that the Commission on Law Enforcement Standards Act, which mandates the adoption of minimum physical fitness requirements for undersheriffs, does not unconstitutionally restrict a sheriff's authority to select an undersheriff.

Your final question asks whether section 486 of the Michigan Penal Code exempts an undersheriff, acting as an administrative assistant rather than as a law enforcement officer, from compliance with the minimum physical fitness standards mandated by the Commission on Law Enforcement Standards Act.

The Michigan Penal Code (Penal Code), 1931 PA 328, MCL 750.1 et seq; MSA 28.191 et seq, revises and consolidates statutes relating to crimes, defines crimes, and prescribes penalties. As originally enacted, section 486 of the Penal Code made it a misdemeanor for a sheriff to appoint an undersheriff or a deputy sheriff who had not resided in the county for three months prior to appointment. Section 486, as last amended by 1967 PA 235, now proscribes a sheriff's appointment of an undersheriff or a deputy sheriff where the appointee fails to satisfy specified residency requirements.

Any sheriff who shall knowingly appoint as undersheriff or deputy sheriff, any person who shall not have been a bona fide resident of the state for 1 year preceding the time of appointment or who appoints an undersheriff or deputy sheriff for the purpose of assisting or performing duties in the area of labor disputes who has not been a resident of the county in which the appointment is made for at least 3 months, is guilty of a misdemeanor. The 3-month residency requirement shall not apply where the person appointed undersheriff or deputy sheriff is a bona fide public law enforcement officer.

Section 486 of the Penal Code prohibits the appointment of undersheriffs and deputy sheriffs who fail to satisfy specified residency requirements. Nothing in this statute, however, exempts undersheriffs, whatever their assigned responsibilities, from compliance with minimum physical fitness standards mandated by the Commission on Law Enforcement Standards Act. All provisions of the Penal Code must be construed according to the fair import of their terms. Penal Code, section 2; People v Armstrong, 212 Mich App 121, 127, 536 Mich 789 (1995). The Penal Code's provisions should not be expanded by construction "beyond the clear import of [their] terms." KMH Equipment Co v Chas. J. Rogers, Inc, 104 Mich App 563, 568; 305 NW2d 266 (1981).

It is my opinion, therefore, in answer to your final question, that section 486 of the Michigan Penal Code does not exempt an undersheriff, whether acting as an administrative assistant or as a law enforcement officer, from compliance with minimum physical fitness standards mandated by the Commission on Law Enforcement Standards Act.


JENNIFER M. GRANHOLM
Attorney General