Plaintiffs appeal as of right from the order of the Wayne County Circuit Court denying their petition for a writ of mandamus to compel defendants to comply with an arbitrator’s award by restoring plaintiff McKeon’s "police powers”. 1
Plaintiff Gary McKeon, a Wayne County deputy sheriff, was convicted on April 13, 1977, of intentionally pointing a firearm at anothеr person, MCL 750.233; MSA 28.430. Subsequently, he was found by a sheriff’s trial board to have violated departmental rules. The board recommended that McKeon be suspended for 20 days; it further recommended that he undergo psychiatric evaluation and additional training. The board also recommended that McKeon be transferred to a division of the depаrtment in which he would be without "police powers” for a period of nine months. The sheriff adopted the trial board’s recommendations.
Pursuant to the collective bargaining agreement between plaintiff union and defendants, plaintiff McKeon appealed and the matter went to arbitration. 2 The arbitrator affirmed the conviction on *81 departmental charges and upheld the 20-day suspension, but overturned the order for psychiatric evaluation and additional training and ordered McKeon transferred back to his original division in 4-1/2 months rather than the 9 months recommended by the trial board and adopted by the sheriff. The sheriff complied with the arbitration award in all respects save one: he refused to reassign McKеon to his former division, where he would exercise law enforcement powers.
On November 21, 1977, plaintiffs filed their petition for a writ of mandamus in circuit court, seeking an order compelling the sheriff to comply fully with the arbitrator’s award and to restore McKeon’s law enforcement powers. Defendants filed an answer in opposition tо the petition, asserting that the arbitrator was without authority to order the sheriff to restore McKeon’s powers as a peace officer. Briefs were submitted and a hearing held, and on June 8, 1978, the court filed a written opinion denying plaintiffs’ petition.
Defendants argued below and on appeal that the constitution and laws of the State of Michigan vest the authority to grant law enforcement powers to deputies exclusively in the sheriff. Plaintiffs, on the other hand, argue that the sheriff’s discretion is limited by the public employment relations act, *82 MCL 423.201 et seq.; MSA 17.455(1) et seq. (hereafter PERA), and by the terms of collective bargaining agreements concluded pursuant to PERA.
The office of sheriff is established by Const 1963, art 7, § 4, which provides in part:
"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.”
The sheriff is a peace officer charged with enforcing the laws enacted by the Legislature under the police power, see 80 CJS, § 42, p 211. It is his duty to "wield * * * the executive power for the preservation of the public peace”.
Scougale v
Sweet,
124
Mich 311, 322;
"The office of sheriff is a constitutional office with duties and powers provided by law. Const 1963, art 7, *83 § 4, Labor Mediation Board v Tuscola County Sheriff,25 Mich App 159 , 162;181 NW2d 44 (1970). When officers are named in the Constitution they have a known legal character. The Legislature may vary the duties of a constitutional office, but it may not change the duties so as to destroy thе power to perform the duties of the office. Allor v Board of Auditors of County of Wayne,43 Mich 76 , 102-103;4 NW 492 (1880). See Murfree, Law of Sheriffs, § 41, p 22.”68 Mich App, at 247-248 .
Among the powers provided to the sheriff by statute is the authority to appoint deputies, MCL 51.70; MSA 5.863:
"Each sheriff may appoint 1 or more deputy sheriffs at his pleasure, and may revoke such appointments at any time * * *.” 3
This statutory provision appears to give the sheriff complete discrеtion in hiring and firing deputies, and has been interpreted as giving him the power to establish rules and regulations for the conduct of deputies.
Eaton County Deputy Sheriffs Ass’n v Eaton County Sheriff,
The issue before us in the instant case is the interrelationship between PERA, in particular § 15 thereof, and MCL 51.70; MSA 5.863. Section 15 of the public employee relations act, MCL 423.215; MSA 17.455(15), provides:
"A public employer shall bargain сollectively with the representatives of its employees as defined in section 11 and is authorized to make and enter into collective bargaining agreements with such representatives. For the purposes of this section, to bargain collectively is the performance of the mutual obligation of *84 the employer and the rеpresentative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract, ordinance or resolution incorporating any agreement reached. if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.”
Specifically, the question is whether the collective bargaining requirements of PERA impliedly authorize a sheriff to enter into a collective bargaining agreement empowering an arbitrator of employee grievances to modify the sheriff’s order reassigning a deputy to duties not involving law enforcement powers upon finding the deputy guilty of misconduct.
The effect of PERA on the sheriff’s discretion in hiring and firing his deputies was discussed by this Court in
Labor Mediation Board v Tuscola County Sheriff 25
Mich App 159;
The Supreme Court has repeatedly held that PERA controls conflicting statutory provisions, including,
inter alia,
charter provisions of a home rulé city and the teacher tenure act.
Rockwell v Crestwood School District Board of Education,
In the recent case of
Central Michigan University Faculty Ass’n v Central Michigan University,
The concept that some subjects might be beyond the scope of collective bargaining under PERA because they fall within the powers granted exclusively to the employer by the Michigan Constitution was first enunciated by the Supreme Court in
Regents of the University of Michigan v Employment Relations Comm, supra.
Relying on that opinion, this Court in
Local 1383 of the International Ass’n of Firefighters, AFL-CIO v City of Warren,
Matters which are proposed as subjects for collective bargaining are classified as mandatory, permissive and illegal subjects. The parties are required to bargain in good faith on mandatory subjects, although they need not reach agreement. The parties may bargain by mutual agreement on permissive subjects, but are not required to do so. As to illegal subjects, no contract provision thereon is enforceable, although the parties are
*88
not forbidden to discuss such matters. See
Detroit Police Officers Ass’n v Detroit,
Our Supreme Court has recognized in principle what might be called the exclusive powers doctrine: that there exist matters which are within the exclusive discretion of a public employer and are therefore outside the category of mandatory collective bargaining subjects.
CMU Faculty, supra, U of M Regents, supra.
The Court has not had occasion to decide, however, what matters are within the exclusive powers of an employer and, further, whether those matters are illegal, or merely permissive, subjects of bargaining. If the exclusive powers subjects are permissive, the employer may bargain with regard to them, but is not required to do so. If the еmployer and em
*89
ployees agree, an enforceable contract provision may be concluded which deals with the exclusive powers. If, however, such subjects are illegal, no agreement made regarding them is enforceable. See
Detroit Police Officers Ass’n v Detroit, supra,
Based on the cases discussed above, we posit— with some trepidation — the following principles which we deem applicable to the case before us: First, the sheriffs power to hire, fire and discipline is not absolute. Rather, his discretion is limited by PERA. See CMU Faculty, supra. Second, all terms and conditions of emрloyment are subject to collective bargaining and to any agreement resulting therefrom, unless that bargaining or agreement infringes upon matters which are placed within the exclusive power of the sheriff by the constitution. See CMU Faculty, supra. See also Council No 23 v Recorder’s Court Judges, supra. Third, although the sheriffs power to hire, fire and discipline may be limited by the Legislature, the matter of which of his deputiеs shall be delegated the powers of law enforcement entrusted to him by the constitution is a matter exclusively within his discretion and inherent in the nature of his office, and may neither be infringed upon by the Legislature nor delegated to a third party, see Scougale v Sweet, supra, People v Robinson, supra, Labor Mediation Board v Tuscolа County Sheriff, supra, Brownstown Twp v Wayne County, supra.
We therefore conclude that the legislative delegation of the executive police power to the sheriff may not be limited by a collective bargaining agreement as authorized by PERA, but remains vested exclusively in the sheriff. This being so, the arbitrator exceeded his authority under the cоn
*90
tract in ordering the sheriff to restore plaintiff McKeon’s law enforcement powers before the sheriff, in the exercise of his discretion, was prepared to do so.
Cf. Carmel Central School Dist v Carmel Teacher’s Ass’n,
We are mindful of the fact that the parameters of the exclusive powers doctrine recognized in CMU Faculty, supra, have not been definitively established by the Supreme Court. We do not presume to undertake that task here, either in general terms or in terms of the sheriff’s powers only. There may well be other subjects within the exclusive power of the sheriff, but we do not reach the issue. We limit our holding to this: that the power to delegate the law enforcement powers entrusted to him by our constitution is vested exclusively in the sheriff, and may not be bargained away or interfered with by any agency or individual.
Affirmed. No costs, a public question being involved.
Notes
The trial board, the arbitrator and the parties used the term "police powers” below, and the parties continue to do so on appeal. To avoid possible сonfusion with the state’s police power, however, we prefer to use the term "law enforcement powers”.
The arbitration clause reads as follows:
"In the event the Union concludes that a member has been unjustly punished or dismissed by a trial board, it may, within thirty (30) calendar days after receipt of the Judgment of the trial board, appeal such Judgment to arbitration as provided. Thе arbitrator shall *81 review the cause of action and the unjustness of the punishment imposed based upon the record made before the trial board. No new testimony or evidence shall be received by the arbitrator, unless said testimony or evidence was unknown at the trial board. If the arbitrator decides that new evidence or testimony should be heard, he shall at his option take said evidence or testimony or refer the case back to the trial board. If the arbitrator decides that the punishment imposed was unduly harsh or severe under all circumstances, he may modify the findings and punishment accordingly, and his decision shall be final and binding upon the parties and the effectivе members.”
Defendant alleges that the collective bargaining agreement was the result of compulsory arbitration under
This section was amended by
The three dissenting justices also found no conflict between the statutes, but concluded that both the statutory pre-dismissal hearing and the post-dismissal contractual procedures could be utilized.