AGO 2001-11.

• Case Date: January 16, 2002
• Court: Indiana

Indiana Attorney General Opinions 2002. AGO 2001-11. January 16, 2002Advisory Opinion 2001-11The Honorable Christopher A. Toth Prosecuting Attorney 60th Judicial Circuit County-City Building,10th Floor 227 West Jefferson BoulevardSouth Bend, Indiana 46601RE: Terms of employment for deputy prosecuting attorneysDear Mr. Toth: This letter responds to your request for an advisory on the following questions:

1) Whether the prosecuting attorney can set vacation policy that differs from county policy.

2) Whether the county commissioners of a particular county, by authorizing payroll distributions for deputy prosecuting attorneys that include vacation days in excess of that allowed for county employees, can be in violation of the infraction covering improper approval of payroll claims.

It is my opinion that the prosecuting attorney may establish the terms of employment for the prosecutors deputies because the deputies are employees of the prosecutor and not of the county. Also, it would not be an improper approval of a payroll claim if the county processed a payroll claim for a deputy prosecuting attorney whose terms of employment were inconsistent with the terms of employment of county employees. ANALYSIS 1. Office of the prosecuting attorney The office of prosecuting attorney in its present form was created by the judicial article of the Indiana Constitution in 1851. There shall be elected in each judicial circuit by the voters thereof a prosecuting attorney, who shall have been admitted to the practice of law in this State before his election, who shall hold his office for four years, and whose term of office shall begin on the first day of January next succeeding his election... Ind. Const. Art. 7, 16. The office is a constitutional office, carved out of the office of the attorney general as it existed at common law. State ex rel. Neeriemer v. Daviess Circuit Court, 236 Ind. 624, 629, 142 N.E.2d 626, 628 (1957) (footnotes omitted), citing State ex rel. Williams v. Ellis, 184 Ind. 307, 312, 112 N.E. 98, 100 (1916). Prosecuting attorneys were originally appointed by the governor, later chosen by joint ballot of the state legislature, and finally elected by the people beginning in 1843. State ex rel Bingham v. Home Brewing Co., 182 Ind. 75, 87, 105 N.E. 909, 913 (1914). The prosecuting attorney is elected not for each county...