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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6045 March 1, 1982 CIVIL SERVICE, DEPARTMENT OF: Pleanary powers in its sphere of authority STATE EMPLOYEES' RETIREMENT BOARD: Authority to promulgate rules Award of supplemental early retirement benefits STATE PERSONNEL DRECTOR: Certification as to employee's duties The State Employees' Retirement Board may adopt rules for the implementation of supplemental early retirement benefits as provided for in 1943 PA 240, Secs. 45-47. The decision to award a supplemental early retirement benefit is to be made by the State Employees' Retirement Board upon the certification as to duties by the State Personnel Director and such other information available to the board. Mr. Richard L. Beers Bureau of Retirement Systems Department of Management and Budget Stevens T. Mason Building Lansing, Michigan Your Bureau requested my opinion whether the Civil Service Commission may adopt guidelines developed by the Department of Corrections to determine eligibility for supplemental early retirement benefits under the State Employees' Retirement Act, 1943 PA 240; MCLA 38.1 et seq; MSA 3.981(1) et seq. Your request concerns 1943 PA 240, supra, Secs. 45, 46 and 47, which were added by 1976 PA 302. These sections authorize the payment of a supplemental early retirement benefit to state employees in positions which, briefly stated, require 'substantial work time in the supervision and custody of inmates.' 1943 PA 240, Sec. 45(a), supra. Your letter explains that a question has arisen as to which state agency should promulgate rules to control the administration of these supplemental benefits. 1943 PA 240, Sec. 46(3), supra, provides: 'The state personnel director shall determine all questions on eligibility for supplemental early retirement benefits within the meanings of sections 45 to 47.' You also point out that the Civil Service Commission decided that the Department of Corrections should promulgate rules to implement 1943 PA 240, Secs. 45-47, supra. The state personnel director is an executive officer created pursuant to Const 1963, art 11, Sec. 5, which, in pertinent part, provides: 'The administration of the [Civil Service] commission's powers shall be vested in a state personnel director who shall be a member of the classified service and who shall be responsible to and selected by the commission after open competitive examination.' OAG, 1979-1980, No 5663, p 615 (February 14, 1980), gives some definition to that constitutional language: 'While Michigan's appellate courts have not had occasion to review the aforementioned provision of Const 1963, art 11, Sec. 5 that 'the administration of the commission's powers shall be vested in a state personnel director . . .' the term 'administration' has been defined by our Supreme Court which, quoting Black's Law Dictionary definition of the word, said: "'The administration of government means the practical management and direction of the executive department, or of the public machinery or functions, or of the operations of the various organs of the sovereign. The term 'administration' is also conventionally applied to the whole class of public functionaries, or those in charge of the management of the executive department." People v Salisbury, 134 Mich 537, 550; 96 NW 936 (1903).' The Michigan Civil Service Commission is one of six administrative boards or commissions 'existing' under the constitution, as opposed to those which the constitution gives the Legislature power to establish. Viculin v Department of Civil Service, 386 Mich 375; 192 NW2d 449 (1971). The Civil Service Commission has plenary and absolute powers in its sphere of authority. Plec v Liquor Control Commission, 322 Mich 691; 34 NW2d 524 (1948). The commission is granted broad plenary powers to regulate civil service procedures which are not subject to legislative control. Council No 11, AFSCME v Civil Service Commission, 87 Mich App 420; 274 NW2d 804 (1978), aff'd 408 Mich 385; 292 NW2d 442 (1980). To enable the Civil Service Commission to exercise its plenary powers, Const 1963, art 11, Sec. 5, commands that the Legislature appropriate to the commission a sum not less than one percent of the aggregate payroll of the classified state civil service for the preceding fiscal year. The Legislature may not attempt to subvert the powers of the commission by, for example, limiting the portion of the one percent of state payroll appropriation which may be used for the payment of accumulated sick leave by the Civil Service Commission. 2 OAG, 1958, No 3307, p 166 (June 13, 1958). (1) In spending its appropriation, the Civil Service Commission's control is greater than the boards of control of our independent state universities. Civil Service Commission v Auditor General, 302 Mich 673; 5 NW2d 536 (1942). The State Employees' Retirement System is a creature of the Legislature. OAG, 1975-1976, No 4965, p 393 (April 16, 1976). The framers of the 1963 Constitution did not intend to divest the Legislature of its power to create and direct the State Employees' Retirement System. OAG, 1971-1972, No 4,732, p 66 (December 29, 1971). The State Employees' Retirement Act, supra, including its machinery of implementation, was created by and may be amended or repealed only by legislative act. OAG, 1971-1972, No 4732, supra. The Attorney General is duty bound under the Michigan Constitution to preserve the laws of this state and to that end, to construe them, if possible, so that they conform to federal and state constitutional requirements. See, e.g., People v Neumayer, 405 Mich 341; 275 NW2d 230 (1979). If the State Personnel Director may be assigned executive duties under the State Employees' Retirement Act, supra, he or she would then be compelled to act under the command of the Legislature, Although small, it would be a dilution of the personnel director's constitutional duty to administer the Civil Service Commission's powers and policies. Authority to make rules and regulations for the State Employees' Retirement System is assigned to the State Employees' Retirement Board by 1943 PA 240, Sec. 2, supra, which provides: 'A state employees' retirement system is hereby created for the employees of the state of Michigan. The administration and management of the retirement system, the responsibility for making effective the provisions of this act, and the authority to make all rules and regulations necessary therefor are hereby vested in a retirement board.' Nothing in 1943 PA 240, Secs. 45, 46 and 47, supra, expressly contradicts the duty of the State Employees' Retirement Board to make rules necessary to their implementation. Within the civil service realm of authority, the Civil Service Commission classifies all positions in the state classified service. Whether employees of the Department of Corrections and the Department of Mental Health hold positions in the state classified service meeting the definitional test of 1943 PA 240, Sec. 45(a), supra, is subject to certification by the State Personnel Director, whose certification as to duties is pursuant to his authority under Const 1963, art 11, Sec. 5. Therefore, consideration of the issue of the constitutionality of 1943 PA 240, Sec. 46(3), supra, is unnecessary. Viculin v Department of Civil Service, supra; Plec v Liquor Control Commission, supra. It is my opinion, therefore, that the State Employees' Retirement Board is empowered to and may adopt rules for the implementation of supplemental early retirement benefits as provided for in 1943 PA 240, Sec. 45 et seq, supra. It is my further opinion that the decision to award a supplemental early retirement benefit is to be made by the State Employees' Retirement Board upon the certification as to duties by the State Personnel Director and such other information available to the board. Frank J. Kelley Attorney General (1)
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