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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. 6375

June 23, 1986

DRAINS:

Maintenance, administration, and operation cost of intracounty drains

Reasonable and necessary expenses incurred in the administration, operation, and maintenance of an intracounty drain constructed upon petition of two or more public corporations under the Drain Code of 1956, c 20, shall be paid by the several public corporations.

The authority of a drainage board to recover reasonable and necessary expenses of maintaining and repairing a drain under the Drain Code of 1956, c 8, is limited to on-site repair or maintenance essential rather than incidental to the drain and costs in excess of statutory limits may not be incurred without approval of the governing body of the municipality affected by more than 20% of the cost of maintaining and repairing the drain.

Honorable Thomas L. Hickner

State Representative

The Capitol

Lansing, MI 48909

On behalf of a drainage board in Bay County established under Chapter 20 of the Drain Code of 1956, MCL 280.1 et seq; MSA 11.1001 et seq, you have asked for my opinion concerning two questions regarding the assessment of expenses for drain operation, maintenance and administration authorized by Chapters 8 and 20 of that code. The Drain Code of 1956 provides in Chapter 8 for the improvement and maintenance of existing intracounty and intercounty drains. Chapter 20 provides for the establishment of drainage boards and the construction of intracounty drains necessary for public health by petition of two or more municipalities. Drainage boards created under Chapter 20 are not compelled to use the provisions of Chapter 8 regarding maintenance, but may use the provisions of Chapter 20 or elect to use the provisions of Chapter 8 when such provisions are not contrary to the express provisions of Chapter 20. See, MCL 280.484; MSA 11.1484.

Your first question cites MCL 280.478; MSA 11.1478, from Chapter 20, which provides, in relevant part, as to expenses of the administration, operation and maintenance of Chapter 20 drains:

'The drainage board [a three-member body consisting of the county drain commissioner, the chairman of the county board of commissioners and one other member] for each project shall continue in existence with such changes in personnel as shall result from changes in the officers constituting the board membership. It shall be responsible for the operation and maintenance of the drain. Any necessary expenses incurred in administration and in the operation and maintenance of the drain and not covered by contract shall be paid by the several public corporations assessed for the cost of the drain. The assessments shall be in the same proportion as the cost of the drain was assessed unless the drainage board establishes a different proportion for the assessments after notice and hearing as provided in section 469 . . ..'

Your first question is:

'Can administration expenses be charged against the drain for operation and maintenance administration. Such as yearly inspections and reports, administration of maintenance programs, handling utility billings, necessary and emergency repairs, complaints, investigations, and supervision of maintenance employees.

'If all or any one of these items or any additional services can be charged against the drain, then

A. On what basis can they be charged.

B. What are the legal limits of charges.

C. In what accounts should revenue be deposited.'

Chapter 20 drains are described in Fair Drain Taxation, Inc v City of St Clair Shores, 219 F Supp 646, 648-649 (ED Mich, 1963), aff'd, 375 US 258; 84 S Ct 361; 11 L Ed 2d 311 (1963):

'Chapter 20 of the Drain Code of 1956 sets up a method by which the State of Michigan, a particular county, and the several public corporations (1) in that county may initiate by petition drain projects which are necessary for the public healty and the cost of which is to be assessed wholly against the public corporations to be benefitted by the proposed drain.

. . ..

'Section 473 provides for the preparation of the special assessment roll, which assesses the estimated cost of the drain against the several public corporations in accordance with the confirmed apportionments. The drainage board is empowered to permit the payment of the estimated assessment in annual installments, not exceeding thirty.'

' (1). The term 'public corporation' shall be deemed to include the State of Michigan, counties, cities, villages, townships, metropolitan districts and authorities created by or pursuant to state statutes. Section 11.1461(b) M.S.A.'

MCL 280.471; MSA 11.1471, authorizes contracts generally for drain construction, operation and maintenance:

'The drainage board may also contract with any private corporation or with any public corporation . . . in respect to any matter connected with the construction, operation, maintenance, use or services of any drain. Such a contract may provide for service or transportation charges . . ..'

Thus, the expenses of maintenance and operation may be determined and contracted for upon the establishment of a drain, and thereupon apportioned among the participating public corporations pursuant to procedures set forth in Chapter 20. Alternatively, by the provisions of MCL 280.478; MSA 11.1478, the Chapter 20 drainage board may incur reasonable and necessary expenses in the 'administration' and in the 'operation and maintenance' of the drain which 'shall be paid by the several public corporations assessed for the cost of the drain.'

Funds of a Chapter 20 drainage board are governed by MCL 280.472; MSA 11.1472, which provides:

'The county treasurer shall be the custodian of the funds of the drainage district . . .. Moneys held by said treasurer shall be paid out only upon order of the drainage board, except that no such order shall be required for the payment of principal and interest on bonds.'

While other chapters of the Drain Code of 1956, particularly Chapter 8, provide detailed requirements for maintenance and operation expenses and which funds they are to be charged against, MCL 280.484; MSA 11.1484, expressly provides that these requirements will not be applicable to Chapter 20 drainage boards unless incorporated by recital or reference into the orders or resolutions of that board:

'In operating under the terms of this chapter, the several boards and officials shall not be limited by the provisions contained in other chapters of this act and the procedures required under the terms of such other chapter shall not be deemed to be applicable: Provided, That when not contrary to the express provisions of this chapter, any provision or provisions in other chapters of this act may be incorporated by recital or by references into any order or resolution of the drainage board, and when so incorporated shall be deemed applicable to the project under this chapter.'

In answer to your first question, therefore, it is my opinion that a Chapter 20 drainage board may incur any expenses to the extent they are reasonable and necessary for the administration, operation and maintenance of a drain established or improved by it under the authority of MCL 280.478; MSA 11.1478, and that funds received by the drainage board are to be deposited with the county treasurer, as the custodian of its funds, and paid out only on the order of the drainage board.

Your second question is:

'Would these charges also be acceptable under Chapter Eight (8) pertaining to operation and maintenance and petitioned construction.'

There are limitations on the maintenance expenses authorized in Chapter 8 which have been the subject of previous Attorney General opinions. OAG, 1981-1982, No 5920, p 228 (June 12, 1981), discussed MCL 280.196; MSA 11.1196, which is part of Chapter 8 [MCL 280.191-200; MSA 11.1191-1200], governing the topics of cleaning, widening, deepening, straightening and extending drains. OAG, 1981-1982, No 5920, p 229, discussed the interrelationship between MCL 280.33 and 280.196; MSA 11.1033 and 11,1196, in the context of maintenance costs of drains, concluding that the cost of updating records and maps was to be a charge against the general fund of the county and not chargeable to a specific drain or drainage district:

'Since 1956 PA 40, Sec. 33, supra [MCL 280.33; MSA 11.1033], provides that the salaries of the drain maintenance employees be reimbursed by the drain districts to the county general fund, those employees must perform work which is properly chargeable to the various districts under 1956 PA 40, Sec. 196, supra [MCL 280.196; MSA 11.1196].

'1956 PA 40, Sec. 196, supra, sets out in subsection 5 specific chargeable costs to the districts. Those costs are all related to the physical, on-site repair or maintenance of the drain. Updating records and maps does not meet this definition. 1956 PA 40, Sec. 196, supra, specifically provides in subsection 6 that the cost of clerical, administrative, and engineering personnel working 'incidental to the operation, repair or maintenance of a drain' are chargeable directly to the county general fund, rather than being chargeable to the drain districts. 'Incidental' is defined in Webster's Third New International Dictionary as pertaining to or involved in, though not an essential part of it.

'It is my opinion, therefore, that a person whose duties involve updating records and maps is performing work related to clerical, administrative, or engineering services and may not be considered a drain maintenance employee under 1956 PA 40, Sec. 33, supra.'

OAG, 1983-1984, No 6226, p 311 (May 18, 1984), concluded that the $800 limitation contained in MCL 280.196; MSA 11.1196, upon the authority of a county drain commissioner to maintain and repair a county drain without approval of the affected municipal corporation or municipal corporations should be calculated by the number of miles of the drain in need of maintenance or repair. That opinion also notes that before maintenance and repair of a county drain may be undertaken by the county drain commissioner, the prior approval of the governing body of a township, city or village affected by more than 20% of the cost of maintaining and repairing the drain traversing the township, city or village must be secured if the cost of the maintenance or repair in any one year exceeds $800 per mile of the drain in need of maintenance and repair, or 2% of the original cost of the drain and 2% of extensions thereof.

In answer to your second question, it is my opinion that the authority for the charging of repair and maintenance expenses under Chapter 8 of the Drain Code of 1956 is more limited than the standard of being 'necessary' set forth in MCL 280.478; MSA 11.1478, for Chapter 20 drains, and is limited by the provisions of MCL 280.33 and 280.196; MSA 11.1033 and 11.1196, to physical, on-site repair or maintenance essential rather than incidental to the drain and that costs in excess of the formula limits in MCL 280.196; MSA 11.1196, may not be incurred without the prior approval of the governing body of a township, city or village affected by more than 20% of the cost of maintaining and repairing the drain.

Frank J. Kelley

Attorney General

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