STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5176

April 26, 1977

CIVIL SERVICE:

Supplementary employment.

A state classified employee who engages in supplementary employment must obtain written consent to do so from his or her appointing authority.

If an appointing authority has granted written consent for a state classified employee to engage in supplementary employment, and the appointing authority is subsequently replaced, there is no need for the replacement appointing authority to renew the written consent.

A state classified employee who is authorized by an appointing authority to engage in supplementary employment must inform the appointing authority of any change in supplementary employment; such notification need not be in writing.

Honorable Tom Mathieu

State Representative

92nd District

The Capitol

Lansing, Michigan 48901

On behalf of the special committee of the Michigan House of Representatives investigating the Michigan Employment Security Appeal Board you have requested my opinion on several questions concerning supplementary employment by employees in the state classified civil service, which questions we have rephrased as follows:

Pursuant to Const 1963, art 11, Sec. 5, the Civil Service Commission has the authority to promulgate rules regulating conditions of employment in the classified state service. This power has been described by the Michigan Supreme Court as 'plenary'. Plec v Liquor Control Commission, 322 Mich 691; 34 NW2d 524 (1948), Groehn v Corporations and Securities Commission, 350 Mich 250; 86 NW2d (1957), Viculin v Department of Civil Service, 386 Mich 375; 192 NW2d 449 (1971). A previous formal opinion held that the commission has 'ample power to establish work rules relating to supplementary employment and further power to delegate enforcement and implementation to appointing authorities', OAG 1969-1970, No. 4709, 172 (September 4, 1970); see also Groehn, supra, and MacLellan v Department of Corrections, 373 Mich 448; 129 NW2d 861 (1964).

Therefore, the provisions of the rules of the Civil Service Commission are dispositive of the questions which you have raised.

The first two questions must be answered in the affirmative, the basis being the explicit language of Rule 8.5b of the Rules of the Michigan Civil Service Commission which requires that the employee:

The Civil Service Commission Rules do not speak to the situation described in the third question. Inasmuch as approval of supplementary employment must be in writing, the incoming appointing authority would normally have access to copies of the approvals maintained by the outgoing appointing authority. Consequently, there would be no administrative or practical reason for requiring the employee to inform the incoming appointing authority of the supplementary employment. In view of the lack of any provision for such requirement in the existing Rules, your third question is answered in the negative.

Having thus answered your third question, no answer to your forth question is required.

It should be emphasized that the foregoing answer is only addressed to the issue of what existing Civil Service Commission Rules require, or do not require, the employee to do on his or her own initiative. It would be appropriate for an incoming appointing authority to request some or all of the employees in the department or agency for which the appointing authority is responsible to make a disclosure of all supplementary employment and to furnish copies of approvals issued by the appointing authority's predecessor. In the event that such request is made, it would be incumbent upon the employee to respond truthfully and accurately. The request could require that the response be in writing.

Your fifth question must be answered in the affirmative, the basis being Rule 8.5c of the Rules of the Michigan Civil Service Commission, which provides in relevant part that the employee must:

Your final question is answered in the negative. In contrast to Rule 8.5b, which explicitly requires written approval of supplementary employment by the appointing authority, Rule 8.5c which, as noted above, obligates the employee to inform the employer of contemplated changes in supplementary employment, contains no language indicating that such notification must be stated in written form. Again, additional comment is appropriate. To avoid doubts as to whether the required notification was given, an employee would be well advised to make the notification in writing and, the appointing authority could, by appropriate notice to the employees under the control of the appointing authority establish, as a matter of procedure, the requirement that such notification be given in writing.

Frank J. Kelley