STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6600

September 27, 1989

COUNTIES:

Consolidation of county community mental health program with other county programs

MENTALLY DEFICIENT AND MENTALLY ILL PERSONS:

County community mental health program--governance by county community mental health board

The disbanding of a county community mental health board or the preempting of the board's powers by another county body would cause the affected county community mental health program to be out of compliance with the provisions of the Mental Health Code.

Honorable David M. Gubow

State Representative

Capitol Building

Lansing, MI 48913

You have asked for my opinion on the following question:

You state that it is your understanding that several counties have consolidated within one department the responsibility for delivering mental health services, public health services, and various other human services. The reorganized department has its own advisory board. In some instances that board has replaced the previously existing county community mental health board. The Department of Mental Health advises that in other instances, the community mental health board serves only in an advisory capacity to the new board and the new board has authority to alter or amend recommendations from the community mental health board.

Community mental health programs are governed by Chapter 2 of the Mental Health Code, MCL 330.1200 et seq; MSA 14.800(200) et seq. A county or a group of adjoining counties can establish a county community mental health program by a majority vote of each county board of commissioners. MCL 330.1210; MSA 14.800(210). Once estblished, the community mental health program becomes an official county agency. MCL 330.1204; MSA 14.800(204). As long as the program is established and administered in accordance with Chapter 2 of the Mental Health Code, the program is eligible for state financial support. MCL 330.1202; MSA 14.800(202).

MCL 330.1212; MSA 14.800(212), provides in pertinent part as follows:

When the wording of a statute is unambiguous, the provisions of the statute must be applied as written. City of Grand Rapids v. Crocker, 219 Mich 178, 182; 189 NW 221 (1922). Furthermore, the use of the word "shall" in a statute generally means that the statutory requirement in question is mandatory. King v. Director of the Midland County Dep't of Social Services, 73 MichApp 253; 251 NW2d 270 (1977). MCL 330.1212; MSA 14.800(212), quoted above, is clear and unambiguous in its mandate that a county or counties electing to establish a community mental health program shall have a community mental health board.

Therefore, the answer to the first part of your question is that a county or counties which desire to continue to have a county community mental health program may not disband the county community mental health board.

It should be noted that nothing in Chapter 2 of the Mental Health Code gives any particular name to the county community mental health board. If the county or counties wish to refer to that board as a human services board or some similar title, the statute would not prohibit the use of such a name. However named, the board must meet the remaining requirements of Chapter 2 of the Mental Health Code. For example, MCL 330.1222; MSA 14.800(222), sets forth detailed requirements for membership on a community mental health board. Any board functioning as the county community mental health board must adhere to those membership requirements.

By whatever name, the board functioning as the county community mental health board can have only those functions and powers set forth in Chapter 2 of the Mental Health Code. It cannot perform any other functions. At least two principles of statutory construction lead to such a conclusion. The first principle is that the express mention in a statute of one thing implies the exclusion of other similar things. In the present context, that principle means that when an entity is created by statute and is given certain powers, the enumeration of those powers is deemed to exclude all others. Sebewaing Industries, Inc v. Village of Sebewaing, 337 Mich 530, 545; 60 NW2d 444 (1953). The powers of a community mental health board are set forth in MCL 330.1226 and 330.1228; MSA 14.800(226) and 14.800(228). All of the powers enumerated relate to the operation of a community mental health program. Nothing in the statute empowers the board to operate a public health or other human resources program.

The second principle of statutory construction which is applicable is that in construing a statute, it is important to ascertain and give effect to the legislative intent. In re Certified Questions, 416 Mich 558; 331 NW2d 456 (1982). There are a number of provisions in Chapter 2 of the Mental Health Code from which it can be inferred that the legislative intent was that a community mental health board function solely in the area of community mental health. For example, MCL 330.1222(1); MSA 14.800(222)(1), provides for the composition of a county mental health board to include representation from providers of mental health services, recipients of mental health services, and people having a working involvement with mental health services.

MCL 330.1226; MSA 14.800(226), requires a community mental health board to survey mental health needs in the county or counties it represents and submit a budget request to the county board(s) of commissioners, thus clearly envisioning that the board would take an advocacy stance on behalf of those in need of mental health services. If that same board were also responsible for advocating for other programs and services, there would necessarily be a dilution of its advocate role in the mental health area. These and other provisions of Chapter 2 of the Mental Health Code give rise to a strong inference that the intent of the Legislature, in adopting the provisions of Chapter 2, was to have a community mental health board that performed only mental health related functions.

The second part of your question relates to the possibility that some counties have set up systems where other advisory boards have preempted the powers of the community mental health board or have the power to alter, amend, or veto recommendations of the community mental health board before those recommendations are presented to the board of commissioners. A county has only those powers that have been conferred upon it by the Constitution or state statutes. Brownstown Twp v. Wayne County, 68 MichApp 244; 242 NW2d 538 (1976), lv den 399 Mich 831 (1977). A county ordinance which contravenes a state statute is void. Gray v. Wayne County, 148 MichApp 247, 259; 384 NW2d 141, lv den 426 Mich 872 (1986).

As noted, in Chapter 2 of the Mental Health Code, the Legislature has given to county community mental health boards certain powers. For example, in MCL 330.1226; MSA 14.1800(226), each county community mental health board is given the power to review and approve an annual plan and budget for the county program, to submit a budget request to the county board of commissioners, to authorize and approve all contracts, and to take any other actions it considers necessary and appropriate to obtain funds to support the program. If a county ordinance were to give some other county board the authority to exercise those powers or the authority to veto or alter the powers expressly given by the Legislature to the county community mental health board, that ordinance would be contrary to the Mental Health Code and, therefore, void.

It is my opinion, therefore, that the disbanding of a county community mental health board or the preempting of the board's powers by another county body would cause the affected county community mental health program to be out of compliance with the provisions of the Mental Health Code.

Frank J. Kelley

Attorney General