Michigan Advisory Opinions August 04, 1981: AGO 5943 (August 4, 1981)

AGO 5943.

You have requested my opinion on the following question:

Does a county board of election commissioners have authority to conduct investigations and exercise remedial powers?

The Michigan Election Law, 1954 PA 116, Sec. 23, as amended; MCLA 168.23; MSA 6.1023, requires the establishment in each county of a county board of election commissioners and provides:

'The judge of probate or the presiding or senior judge of probate, the county clerk and the county treasurer shall constitute a board of county election commissioners for each county, 2 of whom shall be a quorum for the transaction of business. The judge of probate or the presiding or senior judge of probate and the county clerk shall act as chairman and secretary of the board. In the absence of the county clerk from any meeting of the board of election commissioners, the board may select 1 of his deputies to act in his stead. In the event of the absence of any member of the board of election commissioners other than the county clerk, the members of the board who are present shall appoint some other county officer in his place, and such county officer, on being notified, shall attend without delay and act as a member of said board.'

Numerous other sections of the Michigan Election Law set forth various duties and responsibilities of a county board of election commissioners. These duties and responsibilities include the preparation and distribution to local election officials of primary, special and general election ballots, 1954 PA 116, supra, Secs. 559, 561, 568, 689, 690, 691, 693, 696, receiving certifications of nominations and elections of county officers, 1954 PA 116, supra, Secs. 197, 228, and the forwarding of election supplies to local election officials, 1954, PA 116, supra, Secs. 665, 667, 670. Nowhere in the Michigan Election Law or in any other statute, has the Legislature authorized a county board of election commissioners to receive complaints alleging violations of the Michigan Election Law or conferred the power to investigate such complaints.

The power and duty to investigate allegations of violations of the Michigan Election Law is reposed in the Secretary of State by 1954 PA 116, supra, Sec. 318 which provides, in pertinent part:

'The secretary of state in addition to other powers and duties conferred upon him shall have the power and it shall be his duty:

'(8) To investigate, or cause to be investigated by local authorities, the administration of election laws, and to report violations of the election laws and regulations to the attorney general or prosecuting attorney, or both, for prosecution; . . .'

This section was interpreted in OAG, 1965-1966, No 4551, p 384 (December 20, 1966):

'Section 31(8) of the Michigan election law confers upon the Secretary of State the authority, and imposes upon him the responsibility, to investigate only 'administration of the election laws,' not miscellaneous complaints of violations of the election laws in general, unless the subject matter of such latter complaints also, or impliedly, involves said 'administration of the election laws."

Additionally, 1954 PA 116, supra, Sec. 940 makes it the duty of every prosecuting attorney to prosecute individuals who violate the election law:

'It is hereby made the duty of every prosecuting attorney, whenever he shall receive credible information that any such offense has been committed, to cause the same to be prosecuted.'

Furthermore, 1954 PA 116, supra, Sec. 941 requires every peace officer to institute criminal proceedings for election law violations:

'It is hereby made the duty of any police, sheriff or other peace officer, present and having knowledge of any violation of any of the provisions of this act, to forthwith institute criminal proceedings for the punishment of such offender.'

It is my opinion, therefore, that the powers and duties of a county board of election commissioners are limited to those powers and duties which are set forth in the Michigan Election Law, 1954 PA 116, supra, and do not include the authority to either conduct investigations or exercise remedial powers thereto.

Frank J. Kelley

Attorney General