AGO 2002-04.

• Case Date: July 29, 2002
• Court: Indiana

Indiana Attorney General Opinions 2002. AGO 2002-04. July 29, 2002Advisory Opinion 2002-4The Honorable Bernard A. Carter Prosecuting Attorney 31st Judicial Circuit,Lake County, Indiana 2293 North Main Street Crown Point, Indiana 46307RE: Validity of County Ordinance Conferring Merit Status on Deputy Prosecutors Dear Mr. Carter: This letter responds to your request for an answer to the following questions: 1) May a county council confer merit status on a deputy prosecuting attorney by adopting an ordinance to that effect under the authority of the Home Rule Statute? 2) What is the legal effect of such an ordinance? 3) May a county ever have the legal power to exercise control over the independent judgment of a prosecuting attorney in any of the prosecutors employment decisions? It is our opinion that a county council may not confer merit status on a deputy prosecuting attorney, and a county ordinance attempting to do so is invalid. The county governments legal powers as they relate to the prosecuting attorneys hiring decisions are set out in statute. The councils have direct involvement in the hiring of an investigator but in other matters have only indirect involvement stemming from the countys duty to appropriate necessary funds for the office. BACKGROUND Along with your letter you included a copy of an ordinance that the Lake County Council adopted in 1983. Lake County, Indiana, Code of Ordinances, Volume I, Chapter 35: County Policy, 35.30-35.38, Merit Status. The ordinance provides that [a]ll full-time deputy prosecuting attorneys, including any deputy prosecuting attorney in a supervisory position, who accrue three years continuous service in the Prosecuting Attorneys Office, shall be designated as having attained merit status for the purposes herein set forth. (emphasis in original) As stated in your letter, merit status created by the ordinance provides for a vesting of inalienable rights which, once attached, cannot be divested by the Prosecuting Attorney . . . The ordinance also provides that if a deputy prosecuting attorney is disciplined, he or she may appeal to a grievance board made up of the circuit judge, the presiding judge of the superior court, and a third person selected by the prosecuting attorney, whose decision is binding on the prosecuting attorney. 35.35(N). The Statement of Intent for the ordinance sets out that the county council adopted the ordinance under the authority of Ind. Code § 36-1-3-2, the Home Rule Act. DISCUSSION 1. The Home Rule Act In 1980 the General Assembly adopted Indianas current Home Rule Act (Act). Under the Act, a local unit of government is granted broad authority, with few exceptions, to adopt any local law needed for the effective operation of government as to local affairs. Ind. Code §...