Can a South Carolina solicitor decline every case involving an officer over credibility concerns?

Plain-English summary

In 2015, the South Carolina Attorney General concluded that a circuit solicitor could refuse to prosecute cases involving an officer whose credibility concerned the solicitor. The solicitor did not have to review every other fact in a case first. The opinion identified probable cause, the risk of false testimony, likelihood of success, and use of prosecutorial resources as possible considerations. It also said gathering more facts could lead to a more just decision, even though it was not required.

The Town of Iva asked whether that refusal interfered with a sheriff’s or police chief’s control over employees and whether the town could prosecute the cases another way. The Attorney General answered no to both. A solicitor could not hire or assign officers; those staffing powers remained with the law enforcement supervisors. Once the solicitor made a charging or prosecution decision, the town and sheriff could not bypass it through an officer, supervisor, or another person, absent direction from the Attorney General. The opinion did not investigate the particular officer’s credibility or decide disputed facts.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a solicitor have to review the evidence in each case before rejecting cases involving an officer?
A: The Attorney General said no. A credibility concern alone could support a decision not to prosecute, though the solicitor might choose to gather additional facts before deciding.

Q: Could the police chief keep assigning that officer to work?
A: The opinion said the prosecution decision did not directly control hiring or assignments. Those decisions remained with the sheriff or police chief who had authority over the officer.

Q: Could an arresting officer prosecute after the solicitor declined?
A: The opinion said no alternative local prosecution route remained once the solicitor exercised prosecutorial discretion, absent direction from the Attorney General.

Background and legal framework

The request described an officer said to be in good standing with law enforcement authorities. The Attorney General declined to adjudicate those facts and addressed the legal questions. It distinguished a law enforcement supervisor’s authority over personnel from the State’s prosecutorial authority, which the opinion described as flowing from the Attorney General through circuit solicitors. Although officers could assist with some magistrate court prosecutions, the opinion concluded that this did not let them override a solicitor’s decision not to prosecute.

Citations and references

The opinion discussed Article V, Section 24 of the South Carolina Constitution, the sheriff’s appointment power under S.C. Code Ann. § 23-13-10 (2007), and State v. Lone, 406 S.C. 511 (2014), concerning the Attorney General’s prosecutorial authority.

Official title

Regarding prosecutorial discretion and the limits the law places on the exercise of prosecutorial discretion.

Requester

Mary C. McCormac, Esq., Attorney for Town of Iva.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-11-2015/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/06/McCormac-M.-OS-9840-FINAL-Opinion-6-11-2015-00671810xD2C78.pdf

Original opinion text

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Alan Wilson
ATTORNEY GENERAL

June 1 1,2015
Mary C. McCormac, Esq.
Attorney for Town of Iva
P.O. Box 1535

Clemson, South Carolina 29633
Dear Ms. McCormac:
We are in receipt of your opinion request regarding prosecutorial discretion and the limits the law places on the exercise of prosecutorial discretion.

Specifically, you have asked us the

following questions:

I.

Is it arbitrary and/or capricious, or otherwise improper or unlawful, for a Circuit Solicitor to refuse to prosecute all future cases brought by or involving a particular officer, despite the fact that the officer is in good standing with the SCCJA, has not had negative findings or criminal charges by SLED or the Sheriffs Internal Affairs, and is in good standing with both the Sheriff and the Iva Police Chief, without first considering the facts, evidence, and merits of each individual case?

Would

such refusal

improperly interfere

with

the

statutory

rights and

responsibilities of the Sheriff and/or the Iva Chief of Police to choose, supervise, and assign their own employees at their pleasure to tasks necessary for public safety? 3.

If a solicitor can lawfully refuse to prosecute all future cases involving a particular officer, is there an alternative that would allow the Town to properly and lawfully prosecute cases that involve the officer?

Our responses follow.
I.

Law/Analysis

Initially we note that this Office, unlike a court, which can subpoena witnesses and lake

testimony under oath, is ill-equipped to investigate and determine factual questions.

See Op.

S.C. Atfv Gen.. 2013 WL 3479877 (June 26, 2013) ("[TJhis Office does not have the authority of a court or other fact-finding body, and therefore, it is unable to adjudicate or investigate factual questions."); On. S.C. Att'v Gen.. 2013 WL 3479876 (June 26. 2013) (explaining this Rembert C.Dennis Building

• PostOffice Box 11549

. Columbia, SC 2921 1-1549

. Telephone 803-734-3970

. Facsimile 803-253-6283

Mary C. McCormac, Esq.
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June 11,2015

Office does not investigate facts, but instead only issues legal opinions); On. S.C. Att'v Gen.. 2013 WL 861299 (February 26, 2013) ("We have repeatedly stated that, because this Office does not have the authority of a court or other fact-finding body, we are not able, in a legal opinion, to

adjudicate or investigate factual questions."). As a result, when issuing an advisory opinion on a matter such as this, we are confined to a discussion of the law controlling the legal questions contained within your letter. On. S.C. Att'v Gen.. 2014 WL 2619140 (May 30, 2014). A. Whether it is Arbitrary or Capricious for a Prosecutor to Refuse to Prosecute a Case based on Concerns of an Officer's Credibility without First Considering the Facts, Evidence and Merits of Each Case

Understanding the limitations of this Office when issuing an advisory opinion, we will now address your first question—whether a prosecutor acts arbitrarily, capriciously or otherwise

improperly when refusing to prosecute a case based on concerns regarding an individual officer's credibility without first considering the facts, evidence and merits of each case. In response, we believe that in light of the constitutional, ethical and practical considerations a prosecutor may consider when deciding whether to prosecute, a prosecutor could, in exercising his or her vast prosecutorial discretion, properly exercise such discretion and decline to prosecute on the basis of officer credibility alone. 1.

Prosecutorial Discretion

Generally speaking, "[pjrosecutors are given great discretion in determining which cases

will be prosecuted." U.S. v. Allen. 954 F.2d 1 160, 1 166 (6th Cir. 1992). Indeed, as the Supreme

Court of the United States has explained, "[so] long as the prosecutor has probable cause to

believe that the accused committed an offense defined by statute, the decision of whether or not to prosecute and what charge to file . . . generally rests entirely in his discretion." Bordenkircher v. Haves. 434 U.S. 357, 364 (1978) (footnote omitted).

In South Carolina, Article V, Section 24 designates the Attorney General as "the chief

prosecuting officer of the State" with the authority "to supervise the prosecution of all criminal cases in courts of record." Id. Further, the duties of the Attorney General are discharged not only by him and his staff, but through "the activities of the solicitors . . . located in each judicial circuit of the State." Ex parte McLeod. 272 S.C. 373, 377, 252 S.E.2d 126, 127 (1979). Acknowledging this, our Supreme Court found in State v. Addis. 257 S.C. 482, 487, 186 S.E.2d 415, 417 (1972) that "[i]n every criminal prosecution the responsibility for the conduct of the trial is upon the solicitor and he must . . . have full control of the State's case." This control extends to both charging decisions as well as "the decision ... to proceed with a given charge." Op. S.C. Att'v Gen.. 2004 WL 885184 (April 20, 2004). In reaching decisions regarding both charging and prosecution, solicitors have "broad, almost unfettered, discretion" Op. S.C. Att'v Gen.. 1996 WL 452687 (June 3, 1996), and

Mary C. McCormac, Esq.

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"independently decide[] . . . whether to prosecute[.]" In re: Richland County Magistrate's Court. 389 S.C. 408, 411, 699 S.E.2d 161, 163 (2010). Further, the exercise of prosecutorial discretion is "not just a good idea, but rather is an ethical requirement." S.C. Ct. Admin. Memo 2014-04 (quoting S.C. Bar Ethics Advisory No. 14-02).

Notably, our Supreme Court recently advised

solicitors, when exercising such discretion, to "bear in mind that he is an officer of the court, who represents all the people, including the accused, and occupies a quasi-judicial position, whose sanctions and traditions he should preserve." In re: Richland County Magistrate's Court. 389 S.C. at 41 1, 699 S.E.2d at 163. Indeed, "[i]t is his duty to see that justice is done." W. a.

Limits on Prosecutorial Discretion when Exercised in Favor of Enforcement

In light of this duty, a prosecutor, known in the commentary of Rule 3.8 of the South

Carolina Rules of Professional Conduct1 as a "minister of justice," should "refrain from prosecuting a charge that ... [he or she] knows is not supported by probable cause." Rule 407, SCACR, S.C. Rules of Prof. Conduct, Rule 3.8 (2014). This is in accord with the dictates of the

Supreme Court of the United States which, as mentioned above, indicates a prosecutor's belief as to the existence of probable cause is the baseline for pursuing a prosecution. See Bordenkircher. 434 U.S. at 364 ("[So] long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision of whether or not to prosecute and what

charge to file . . . generally rests entirely in his discretion.") (footnote omitted).

In addition to the existence of probable cause, courts have recognized prosecutorial discretion, particularly the decision to prosecute, is subject to constitutional limitations. See U.S.

v. Batchelder. 442 U.S. 114, 125 (1979) ("Selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints.") (footnote omitted); Bordenkircher. 434 U.S. at 365

("[T]here are undoubtedly constitutional limits upon its exercise."). For instance, in U.S. v. Andersen. 940 F.2d 593, 596 (10th Cir. 1991), the Tenth Circuit Court of Appeals highlighted that considerations of "race, sex, religion or exercise of a statutory or constitutional right" are not, by themselves, a proper basis for prosecuting an individual. Likewise, the Supreme Court, in Blackledge v. Perrv. 417 U.S. 21, 28 (1974), held potentially vindictive exercises of prosecutorial discretion are also constitutionally impermissible. The same is true with respect to the "retaliatory use" of prosecutorial power. Thigpen v. Roberts. 468 U.S. 27, 30 (1984). b. Limits on Prosecutorial Discretion when Exercised to Decline Enforcement

Yet there is little authority regarding the limits of prosecutorial discretion when it is exercised to decline enforcement. As detailed in Heckler v. Chanev. 470 U.S. 821, 831 (1985), "[t]his ... is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement." For example, and as noted in Heckler, the exercise of

' See Rule 407 SCACR, S.C. Rules of Prof. Conduct Rule 3.8, comment 1 ("A prosecutor has the responsibility of a minister ofjustice and not simply that of an advocate.").

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enforcement discretion typically requires balancing of factors such as allocation of resources, likelihood of success, and whether enforcement fits the prosecuting agency's overall policies— all of which are best measured by the prosecuting agency itself rather than a court. Id. at 83 1 . In

addition, the Heckler Court noted there are practical reasons explaining judicial deference to a prosecutorial agency's decision not to prosecute.

Notably, the Court highlighted that because

courts are typically concerned with protecting an individual's liberty and property interests, there

is rarely a reason for courts to review a prosecuting agency's decision to decline prosecution. Id. at 832 ("[W]e note that when an agency refuses to act it generally does not exercise its coercive

power over an individual's liberty or property rights, and thus does not infringe upon areas that

courts often are called upon to protect."). Thus, it is unsurprising that there is little in the way of federal or state decisional law setting forth the particular factors prosecutors must rely on when exercising prosecutorial discretion.

Understanding this, we are unaware of any authority specifically prohibiting a prosecutor from declining to prosecute a case on the basis of perceived officer credibility alone.

In fact,

when coupling our Supreme Court's recent language from In re: Richland County Magistrate's

Court, with the "minister of justice" role discussed in Rule 3.8 of the Rules of Professional

Conduct, it seems possible a solicitor could, based on concerns of officer credibility alone, have doubts about the existence of probable cause and, as a result, decline to prosecute under Rule 3.8(a) and Bordenkircher. Additionally, it seems possible that independent of other facts or the

existence of probable cause, a prosecutor, out of an abundance of caution and concerned with his or her role as an "officer of the court" and "minister of justice," may decline to prosecute a case

amidst concerns about potentially perpetrating a fraud on the court, or securing a conviction on

the basis of false testimony when he or she has concerns about an officer's credibility. E.g. Matter of Ruben. 273 S.C. 154, 155, 255 S.E.2d 348, 348 (substituting a complaint containing a false ground for divorce to be staged by the client constituted professional misconduct); Riddle v. Ozmint. 369 S.C. 39, 48 631 S.E.2d 70, 75 (2006) ("[T]he presentation of known false evidence is incompatible with rudimentary demands of justice.' " (quoting Giglio v. United States. 405 U.S. 150, 153 (1972)). Likewise, under the rubric of Heckler, a prosecutor, concerned about an officer's credibility, may decline to prosecute a case simply because the credibility issue reduces his or her likelihood of success on the merits of the case, or because agency resources may be better used elsewhere. See Heckler. 470 U.S. at 831 (highlighting likelihood of success and allocation of resources are legitimate reasons why an agency may decline to prosecute); see also. U.S. v. Goodwin. 457 U.S. 368, 382 (1982) ("A prosecutor

should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution.").

Thus, to answer your question, we believe a prosecutor does not act arbitrarily, capriciously or otherwise improperly when refusing to prosecute a case based on concerns regarding an officer's credibility regardless of the other facts of the case.

Indeed, there are a

variety of limitations on the exercise of the prosecutorial power, both constitutional and ethical, that a prosecutor could conceivably be concerned with when declining to prosecute an individual

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where issues of officer credibility arise.

Furthermore, and as noted in Heckler, there may be

practical reasons, outside of the constitutional and ethical reasons mentioned above, that a prosecutor may properly consider when exercising his or her vast discretion related to

prosecutorial decisions.

Accordingly, it is the opinion of this Office that a prosecutor, when

exercising his or her vast prosecutorial discretion, is not required to look at the entirety of a case when he or she has concerns regarding an officer's credibility, but in acting as a minister of

justice, may wish to do so as gathering additional facts and evidence prior to making a prosecutorial decision may provide for a more just exercise of such discretion. B. Whether the

Refusal

to

Prosecute Improperly

Interferes

with

the

Statutory Rights and Responsibilities of the Sheriff and /or the Iva Chief of Police to Choose, Supervise, and Assign their own Employees at their Pleasure to Tasks Necessary for Public Safety

In your next question you ask whether a solicitor's refusal to prosecute a case based on

credibility concerns improperly interferes with the Sheriffs or a police chiefs statutory rights and responsibilities to choose, supervise and assign employees at his or her pleasure. We believe

that while a prosecutor's exercise of prosecutorial discretion may have an ancillary effect on how a sheriff or police chief chooses, supervises and assign his or her employees, because such a decision would still rest with the respective sheriff or police chief and is not directly affected by

the solicitor, a sheriff or police chiefs duties to choose, supervise and assign employees is not improperly interfered with when the solicitor exercises prosecutorial discretion. 1.

Authority of Sheriff/Chief of Police

The position of sheriff is created in Article V, Section 24 of the South Carolina Constitution. See S.C. Const., art. V, § 24 (1895) ("There shall be elected in each county by the electors thereof ... a sheriff. . . elected by the electors thereof."). In prior opinions, this Office

has explained that a sheriff occupies the position of "chief law enforcement officer in a county," Op. S.C. Atfv Gen.. 2005 WL 774155 (March 1, 2005); Op. S.C. Att'v Gen.. 1974 WL 27612 (January 28, 1974) and pursuant to Section 23-13-10 of the Code, "may appoint one or more deputies " S.C. Code Ann. § 23-13-10 (2007). Thus, it is clear the Sheriff, as the chief law enforcement officer of the county vested with the power to appoint deputies, certainly serves as a supervisor to his deputies and, assuming the proper procedures for appointment are followed and the deputy is otherwise qualified, has discretion to choose, supervise and assign his employees. The same is true with police chiefs provided they are properly appointed by town council and are given the authority to hire and otherwise direct his or her officers. Op. S.C. Att'v Gen.. 1967 WL 8604 (July 18, 1967).

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2.

Authority of the Attorney General and Circuit Solicitors

While sheriffs and police chiefs clearly possess supervisory duties, the law draws a line with respect to supervisory duties versus prosecutorial duties even where such duties seemingly overlap. For example, as it relates to prosecutions, both sheriffs and police chiefs, as supervisory law enforcement officers, may assist an arresting officer in prosecuting cases in magistrate's court. See State ex rel. McLeod v. Seaborn. 270 S.C. 696, 698-99, 244 S.E.2d 317, 319, (1978) (authorizing supervisory law enforcement officers to assist prosecutions by arresting officers); State v. Sossamon. 298 S.C. 72, 73, 378 S.E.2d 259, 260 (1989) (recognizing a supervising law

enforcement officer may assist an arresting officer in prosecuting a case in magistrate's court); In re: Unauthorized Practice of Law Rules Proposed bv the South Carolina Bar. 309 S.C. 304, 307, 422 S.E.2d 123, 125 (1992) ("Only the arresting officer may prosecute the case, although if the

officer is new or inexperienced, he may be assisted at trial by one of his supervisors."); City of Easlev v. Cartee. 309 S.C. 420, 422 n.2, 424 S.E.2d 491, 492 n.2 (1992) ("[T]he prosecutorial

authority granted to law enforcement officers and licensed security guards applies with equal force to non-traffic misdemeanors within the jurisdiction of a magistrate's or municipal court."); State v. Rainwater. 376 S.C. 256, 259, 657 S.E.2d 449, 450-51 (2008) (affirming authority of

arresting officer who had since changed law enforcement agencies to prosecute DUI case).

However, the right to prosecute in magistrate's court does not belong to the prosecuting officer or his supervisor, but is instead that of the Attorney General as explained in Article V, Section 24

of the South Carolina Constitution. See State v. Lone. 406 S.C. 511, 514, 753 S.E.2d 425, 426 (2014) ("[Article V, Section 24] establishes the Attorney General as the chief prosecuting officer

of the State of South Carolina for both criminal and civil proceedings"). In other words, any time a prosecuting officer or his supervisor prosecute a case in magistrate's court, they do so at the discretion of the Attorney General and, by virtue of the delegation discussed in Addis, the solicitor. As a result, a prosecutor's exercise of prosecutorial discretion at least within the field of prosecuting a case—an area where the supervisory role of a sheriff or police chief seemingly overlap—is not limited in any fashion by a sheriff or police chiefs supervisory duties as the prosecutorial duties exercised by a sheriff or police chief flow from the Attorney General and

circuit solicitors delegation of such authority.2
Furthermore, a prosecutor's exercise of prosecutorial discretion based on his or her beliefs regarding credibility does not interfere with a sheriff or police chief s duty to choose and assign his own employees. This is so because a prosecutor's decision not to bring charges in a case involving an officer with a perceived credibility problem does not directly interfere with a sheriff or police chiefs role in choosing or assigning his employees. Indeed, a sheriff or police 2 Moreover, even if this were not the case, Chapter 15 of Title 23 entitled "General Powers and Duties of Sheriffs and Deputy Sheriffs" prohibits the sheriff from acting as a solicitor. See S.C. Code Ann. § 23-15-1 10 ("No sheriff, deputy sheriff or sheriffs clerk, while in office, shall act as an attorney at law or solicitor in equity in his own name or in the name of any other person or be allowed to plead or practice in any of the courts in this State, nor shall any such officer hold the office of clerk of the court of common pleas and general sessions.").

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chief vested with the authority to hire deputies or officers can certainly still choose to employ an

officer the solicitor perceives as having a credibility problem since the solicitor has no legal authority to choose either deputies or police officers. Likewise, the solicitor's beliefs regarding

an officer's credibility do not directly affect the duty assignments a sheriff or police chief may make since the solicitor lacks the ability to control a sheriff or police chiefs duty assignments and the authority to do so remains with the sheriff or police chief. Stated differently, a sheriff or

police chiefs employment decision or assignment of duty based upon a solicitor's perception of an officer's credibility does not rest with the solicitor, but with the sheriff or police chief vested with the authority to make such a decision. Thus to reiterate, since the solicitor lacks authority to either hire deputies or police officers and likewise cannot choose to assign such individuals, their prosecutorial decisions based on perceived credibility problems do not constitute an improper

interference with a sheriff or police chiefs supervisory duties.3 C. Whether there is an Alternative that would allow a Town to Properly and

Lawfully Prosecute Cases where a Circuit Solicitor has Decided not to Prosecute based upon Concerns Regarding an Officer's Credibility Having answered your first and second questions, we now move to your third question, whether there is an alternative means of prosecuting cases where a solicitor has declined to prosecute a case on the basis of concerns regarding an officer's credibility.

Assuming the

solicitor has reached a decision regarding prosecution and has therefore exercised his or her vast prosecutorial discretion, we believe there are no alternative means of prosecuting such cases

absent direction from this Office which typically defers to circuit solicitors on such questions.

3 Additionally, it should be noted the statute granting a sheriff the authority to choose, supervise and assign their employees places a greater and more direct burden on these powers than a solicitor's exercise of prosecutorial discretion. For instance, while it is true Section 23-13-10 of the Code gives a sheriff the power "to appoint one or

more deputies," the sheriffs power of appointment is not absolute. In fact. Section 23-13-10 clearly explains a sheriffs deputies are subject to approval "by the judge of the circuit court or any circuit judge presiding therein." S.C. Code Ann. § 23-13-10 (2007). Thus, since a sheriffs power to choose his employees is directly impacted by a judge whereas it is only incidentally, if at all, impacted by the solicitor's exercise of prosecutorial discretion, it cannot be said a solicitor improperly interferes with the sheriffs authority to choose his employees when he declines to prosecute cases from an officer he or she believes has a credibility problem.

The same is true with respect to a municipality's chief of police. In particular, the power to appoint a police officer, including a police chief, actually rests with the municipality itself. See S.C. Code Ann. § 5-7-1 10 (2004) ("Any municipality may appoint or elect as many police officers, regular or special, as may be necessary for the proper law enforcement in such municipality and fix their salaries and prescribe their duties."); S.C. Code Ann. § 5-7-160 (2004) ("All powers of the municipality are vested in the council, except as otherwise provided by law, and the

council shall provide for the exercise thereof and for the performance of all duties and obligations imposed on the municipality by law."). However, even if a municipality were to delegate its power to appoint police officers to the chief of police, as may be possible under our 1967 opinion, since the chiefs power to choose his employees is directly impacted by council and is only incidentally, if at all, impacted by the solicitor's exercise of prosecutorial discretion, it cannot be said a solicitor improperly interferes with a chief of police's authority to choose his employees when he declines to prosecute cases from an officer he or she believes has a credibility problem.

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As discussed above in Section 1(A)(1), absent direction from the Attorney General, the decision of whether to prosecute rests solely with the solicitor. See Addis. 257 S.C. at 487. 186 S.E.2d at - ("In every criminal prosecution the responsibility for the conduct of the trial is upon the solicitor and he must . . . have full control of the Slate's case.").

This Office defers to the

circuit solicitors with respect to both charging decisions and whether to prosecute. See Op. S.C. Att'v Gen., 1997 WE 205805 (February 3, 1997) ("It is of course, the policy of this Office generally to defer to the local Solicitor in any prosecution decision with respect to a case the

Solicitor is handling."); Op. S.C. Atfv Gen.. 1995 WL 803700 (August 14, 1995) (explaining this Office generally defers to the circuit solicitors when

making charging decision and

evaluating whether to prosecute a case). As a result, where a decision has been made, neither a sheriff nor a police chief can pursue an alternative to prosecution as the solicitor's exercise of prosecutorial discretion necessarily means the power to prosecute cannot be delegated to the arresting officer, his supervisor, or another individual.

Indeed, as our Supreme Court explained

in State v. Addison. 2 S.C. 356, 363-64 (1871), "[tjhe prosecuting officer speaks for the State,

and, if the motion is to be made for the removal of the trial on behalf of the State, it should be made by him, and induced by his judgment." Accordingly, we believe that where a charging or prosecution decision has been reached by the solicitor, neither a sheriff nor a police chief can exercise the prosecutorial power by alternative means. II.

Conclusion

In conclusion, and as it relates to your first question, it is the opinion of this Office that a

prosecutor does not act arbitrarily, capriciously or otherwise improperly when refusing to prosecute a case based on concerns regarding an officer's credibility since prosecutors are vested

with vast prosecutorial discretion, especially as it relates to decisions not to prosecute.

As to

your second question, we believe that while the exercise of prosecutorial discretion may have an

ancillary effect on how a sheriff or police chief chooses, supervises and assign his or her employees, because the exercise of these supervisory powers would still rest with the respective sheriff or police chief and arc not directly affected by the solicitor's exercise of discretion, the duties to choose, supervise and assign employees are not improperly interfered with when a solicitor exercises their prosecutorial discretion. Finally, as to your third question, we believe that when a charging or prosecution decision has been reached by the solicitor, neither a sheriff nor a police chief can exercise the prosecutorial power by alternative means as their prosecutorial power Hows from the delegation of such power. Sincerely,

'—'
Brendan McDonald

Assistant Attorney General

Mary C. McCormac, Esq.
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REVIEWED AND APPROVED BY:

Solicitor General