(dissenting in part). These consolidated appeals by the people involve two orders of dismissal involving charges of misconduct *492in public office, MCL 750.505; MSA 28.773, and one charge of removal, mutilation, or destruction of public records, MCL 750.491; MSA 28.759. Essential to the charges of misconduct in public office is the question whether the lower courts were bound by precedent from this Court to the effect that a deputy sheriff is not a public officer or public official within the meaning of the common-law offense of misconduct in office, in such a manner that while acting “in the exercise of the duties of his office or while acting under color of his office” he may be charged with having committed wrongful acts constituting malfeasance or misfeasance. Cf. Perkins & Boyce, Criminal Law (3d ed), p 540.
I agree this is a question of law reviewed by this Court de novo. After reviewing the record, I conclude that the district and circuit courts erred as a matter of law in holding that defendant is not a public officer and therefore cannot be charged with misconduct in office. I find that defendant was appropriately charged in two separate indictments with twenty counts of misconduct in office pursuant to MCL 750.505; MSA 28.773:
Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.
In Docket No. 186263, defendant, a captain in the sheriffs office, was a public officer acting in the exercise of his duties when he allegedly misreported overtime hours worked by deputies under his command at the Rochester Hills substation for the purpose of *493ingratiating himself with city officials. Likewise, in Docket No. 190563, he was acting under color of his office when he allegedly committed acts for which he was charged with fourteen misconduct claims stemming from the ordering of deputies under his command to drive Mr. L. Brooks Patterson, former Oakland County prosecutor, now county executive, and his wife, and Rudy Lozano, then a member of the Oakland County Road Commission, to various locations or events, activities that were arguably outside the scope of the deputies’ duties as law officers.
Both lower courts expressly relied on this Court’s holding in Schultz v Oakland Co, 187 Mich App 96; 466 NW2d 374 (1991). The parties seem to use the terms “public official” and “public officer” interchangeably. I believe they are not interchangeable. Schultz declared genetically that an Oakland County deputy sheriff was not a “public official” so as to entitle him to withdraw his resignation before its acceptance was manifested in the public record. Id. at 101-102.
The first case considered by the Schultz panel was Solomon v Highland Park Civil Service Comm, 64 Mich App 433; 236 NW2d 94 (1975), in which this Court found that a city police officer was not a “public official” or “public officer” of the City of Highland Park. Id. at 437-438. Another case relied on by the Schultz panel was Burnett v Moore, 111 Mich App 646; 314 NW2d 458 (1981), which held that a state police trooper was not a “state official” for the purpose of determining jurisdiction of the Court of Claims over a civil action in which the trooper was sued for assault and battery in the course of making an off-duty citizen’s arrest. Id. at 648-649 The exact *494detemúnation is that a state trooper is not a “state official” to be included within the exclusive jurisdiction of the Court of Claims pursuant to MCL 600.6419(1); MSA 27A.6419(1).
I believe the above authorities are well-reasoned, and I have no problem with their conclusions that troopers and deputy sheriffs, being akin to ordinary foot soldiers, are officers who are public employees but not public “officials.” However, I do not believe that the above holdings extend to command officers, particularly defendant, who was described by Oakland County Sheriff John Nichols as the de facto police chief of Rochester Hills. I suggest an analogy drawn from the military differentiating commissioned officers from ordinary troops. The courts below, though urged to do so, made no differentiation between command officers and noncommand officers.
The Schultz panel also considered the Supreme Court’s holding in People v Freedland, 308 Mich 449; 14 NW2d 62 (1944). Freedland set forth guidelines for determining whether a deputy sheriff was a public officer for purposes of applying the criminal bribery statutes. Id. at 457-458. I do not believe for purposes of the application of Administrative Order No. 1990-4 and its successors that Schultz is controlling authority for the proposition that a deputy sheriff acting as the police chief of an incorporated city with command authority over all administrative and executive functioning employees of that police department is not a public official within the meaning of the five elements set forth by the Michigan Supreme Court in Freedland, supra at 557-558. Those elements, which transform a position of public employment into one *495of public office with its attendant burdens and responsibilities, are as follows:
“(1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional.” [Citation omitted.]
In People v Thomas, 438 Mich 448, 458, n 8; 475 NW2d 288 (1991), then Chief Justice Cavanagh opined that a police officer who made a false statement about an arrest on a police report could be charged under MCL 750.505; MSA 28.773 with the common-law offense of misconduct in office. See Thomas, supra at 460 (Boyle, J., concurring). The parties disagree regarding whether that statement is authoritative or merely dicta. Although probably dicta, it should still be entitled to considerable deference. People v Brashier, 197 Mich App 672, 678; 496 NW2d 385 (1992). However, the courts below gave it no deference.
This Court has held, in the context of determining the applicability of the misdemeanor charge of failure to uphold the law, that a police officer may constitute a public official within the scope of MCL 752.11; MSA 28.746(101). See People v Thomas, 182 Mich App 225; *496452 NW2d 215 (1989). I believe officers, such as defendant, that hold command-level positions axe subject to the common-law charges brought for the offense of misconduct in office pursuant to MCL 750.505; MSA 28.773.
I concur with the circuit court’s dismissal of the count charging removal or destruction of official records contrary to MCL 750.491; MSA 28.759 in Docket No. 190563 because there is no evidence that the comp-time requests and tally sheets used at the Rochester Hills substation were “official books, papers or records” as contemplated in the statute.
I would reverse and remand for further proceedings requiring redetermination of the propriety of the charges in both cases on the basis of this Court’s determination that defendant was not a common-law “public official” within the appropriate meaning of that term for purposes of charging the offense of misconduct in office. With regard to the majority’s resolution of the second issue presented in this appeal, I concur.