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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. 6423

February 24, 1987

COLLEGE AND UNIVERSITIES:

Authority of community college district to expend public funds to support independent political ballot or candidate committees

CRIMES AND OFFENSES:

Unlawful expenditure of public funds

PUBLIC OFFICES AND OFFICERS:

Removal of a member of a community college district board of trustees

PUBLIC FUNDS:

Recovery of unlawfully expended funds

SCHOOLS AND SCHOOL DISTRICTS:

Authority of school district to expend public funds to support independent political ballot or candidate committees

A school district or community college district may not provide public funds, public property, or the services of public personnel to independent political ballot or candidate committees.

A board of education of a school district or a community college board of trustees may commence an action against school district or community college officials to recover unlawfully expended public funds.

Taxpayers may commence a lawsuit to enjoin the unlawful expenditure of public funds for political purposes by a school district or a community college district.

The Legislature has not enacted legislation authorizing the removal from office of either a member of a board of education of a school district or a member of a community college board of trustees.

The expenditure of school district or community college district funds for political purposes without lawful authority is neither misfeasance nor nonfeasance in office. Such expenditures could constitute malfeasance in office if the expenditures involved wilful and knowing wrongdoing.

A violation of MCL 750.490; MSA 28.758, dealing with the safekeeping of public money, may be prosecuted by the county prosecutor.

There is no statutory provision making malfeasance, misfeasance, or nonfeasance in public office a crime.

Honorable Gilbert J. DiNello

State Senator

The Capitol

Lansing, Michigan

You have forwarded a series of questions revolving around interactions between institutions of public education and independent political ballot or candidate committees. The questions are:

"1. Can an institution of public education rent or lease public facilities (school buildings, public offices, etc.) to an independent political ballot or candidate committee?

"2. Can an institution of public education give or loan to an independent political ballot or candidate committee paper, pencils, duplicating equipment, printing supplies, and other sundry items?

"3. Can an institution of public education provide or loan to an independent political ballot or candidate committee services such as secretarial, computer operators and assistants to include registered voters lists, labels, etc.?

"4. Can an institution of public education solicit during business hours volunteers such as students, and by use of the telephones solicit private individuals and or public/private enterprises, labor unions, etc. in advocacy for or against a ballot proposal or candidate?

"4a. In the above question, can these names be turned over to and for use by an independent political ballot or candidate committee?

"5. Can an institution of public education or any other public employee while receiving compensation (salary, pay, etc.) campaign for or against a ballot proposal or candidate?

"5a. Can public funds, public vehicles, gasoline, charge cards entrusted to a public official be utilized in advocacy for or against a ballot proposal or candidate?

"6. If in your opinion any of the questions asked above constitute a violation of law, who is responsible to press charges?

"6a. Specifically, does the County Prosecuting Attorney have the authority to prosecute?

"6b. If any of the above are found to be violations of law, does this constitute malfeasance, misfeasance or nonfeasance in office?

"6c. Does malfeasance, misfeasance or nonfeasance constitute a criminal act?

"6d. In the event your answer to question 6c is negative, then who is responsible for taking civil action against the violators?"

INITIAL DISCUSSION

Since it is my understanding that these questions concern school districts and community college districts, the term "institution of public education" as used in this letter will be deemed to refer only to school districts and community college districts. The foregoing questions will be responded to seriatim.

Preliminarily, it must be observed that school districts have only those powers granted to them either expressly or by reasonably necessary implication in statutes enacted by the Legislature. Senghas v L'Anse Creuse Public Schools, 368 Mich 557; 118 NW2d 975 (1962). A community college district, as a public body, has only those powers conferred by the Constitution or state statutes. OAG, 1979-1980, No 5826, p 1108 (December 10, 1980).

QUESTION 1

In OAG, 1979-1980, No 5826, supra, it was concluded that a community college district lacked statutory authority to lease a portion of its facilities to a legislator for office space because the lease was for a purpose unrelated to the educational mission of the community college district. That conclusion is equally applicable to school district property that is still required for school purposes. See, MCL 380.1262; MSA 15.41262; OAG, 1979-1980, No 5522, p 240 (July 10, 1979). Thus, the answer to your first question is no.

QUESTION 2

Turning to your second question, it has been the consistent position of this office that school districts and other public boards and commissions lack statutory authority to expend public funds to influence the electorate in support of or in opposition to a particular ballot proposal or candidate. OAG, 1965-1966, No 4291, p 1 (January 4, 1965); Phillips v Maurer, 67 NY2d 672; 490 NE2d 542 (1986). A public body, however, may expend public funds to objectively inform the people on issues related to the function of the public body. OAG, 1965-1966, No 4421, p 36 (March 15, 1965); OAG, 1979-1980, No 5597, p 482 (November 28, 1979). In light of these prior opinions and cited authority, the answer to your second question is no.

QUESTIONS 3-5a

Addressing questions 3 through 5a, the answer to each is also no. See, OAG, 1965-1966, No 4291, supra; OAG, 1965-1966, No 4421, supra; OAG, 1979-1980, No 5597, supra; and Phillips v Maurer, supra.

QUESTIONS 6-6a

Turning to questions 6 and 6a, research has failed to reveal any statute that makes it a crime for officers or employees of a school district or community college to engage in political activities on behalf of a candidate or a ballot proposal during working hours. Although in MCL 15.404; MSA 4.1702(4), the Legislature has prohibited public employees from engaging in political activities during the hours they are being compensated as employees, it has not provided any criminal penalties for violation of such prohibition. There is, therefore, no criminal penalty to be enforced by the county prosecutor.

In MCL 750.490; MSA 28.758, dealing with the safe keeping of public money, the Legislature has provided, in pertinent part:

"Any officer who shall wilfully or corruptly draw or issue any warrant, order or certificate for the payment of money in excess of the amount authorized by law, or for a purpose not authorized by law, shall be guilty of a misdemeanor, punishable as provided in this section." (Emphasis added.)

Thus, if any school district or community college district officer were to draw or issue any warrant, order, or certificate for the payment of public funds to private persons or private business organizations to influence the electorate to support or oppose a particular ballot proposal or candidate, if done wilfully or corruptly, the officer would be violating the above-quoted statutory provision. OAG, 1952-1954, No 1793, p 361 (June 23, 1954). Such a violation may be prosecuted by the county prosecutor.

QUESTION 6b

Addressing question 6b, malfeasance by a public officer is conduct that is wholly wrong and beyond the authority of the public official. Misfeasance by a public officer is the performance of a lawful function of the office in an improper manner. Nonfeasance by a public officer is the failure to perform a duty of the office. See, In Re Cartwright, 363 Mich 143, 150; 108 NW2d 865 (1961); Gray v Clerk of Common Pleas Court, 366 Mich 588, 594; 115 NW2d 411 (1962); 67 CJS, Officers, Sec. 122, p 492. Although the expenditure of school district or community college district funds for political purposes without lawful authority would not constitute either misfeasance or nonfeasance, it could constitute malfeasance in office if the expenditures involved wilful and knowing wrongdoing. 67 CJS, Officers, supra. In this connection, however, it is to be observed that there is no statutory provision implementing Const 1963, art 7, Sec. 33 authorizing the removal from office of either members of boards of education of school districts or community college trustees. OAG, 1977-1978, No 5395, p 705 (December 11, 1978); See also, OAG, 1981-1982, No 6075, p 672, 674 (June 14, 1982).

Although under Section 253 of 1955 PA 269, the superintendent of public instruction was authorized to remove from office, for cause, members of local boards of education, this provision was repealed by the Legislature in the enactment of the School Code of 1976, 1976 PA 451. The Legislature may, of course, enact legislation authorizing the removal from office for cause of members of local boards of education and community college boards of trustees.

QUESTIONS 6c-6d

Turning to questions 6c and 6d, while the Legislature has made wilful neglect of duty by a public officer or employee a misdemeanor, MCL 750.478; MSA 28.746, there is no statutory provision making malfeasance, misfeasance, or nonfeasance in public office a crime. Taxpayers may, however, bring a lawsuit to enjoin the unlawful expenditure of public funds for political purposes by a school district or a community college district. Mosier v Wayne County Board of Auditors, 295 Mich 27; 294 NW 85 (1940). In addition, a board of education or a community college board of trustees may commence an action against school district or community college officials to recover unlawfully expended public funds. Johnson v Gibson, 240 Mich 515, 522-524; 215 NW 333 (1927). Finally, if requested in writing by at least twenty-five percent of the registered electors of a school district, the attorney general may audit the records of the school district. If the audit reveals that school district funds have been illegally expended, either the attorney general or the prosecuting attorney may institute a civil action to recover such funds. See, MCL 14.141; MSA 3.241 and MCL 14.143; MSA 3.243.

Frank J. Kelley

Attorney General


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