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. 6610

February 16, 1990

COUNTIES:

Soliders' Relief Fund

VETERANS:

Soliders' Relief Fund

The Wayne County Soliders' Relief Commission continues to exist; the statutory appointing authority for that Commission is the Wayne County Probate Court.

The role of the county judge of probate, with respect to a county soldiers' relief commission, is limited to the appointment of the commission members; decisions regarding the compensation of the commission members rest with the county board of commissioners and those regarding the commission's hours and administrative procedures rest with the commission.

Honorable Stanley Stopczynski

State Representative

The Capitol

Lansing, MI

You have requested my opinion regarding two questions with respect to property taxes levied for the purpose of assisting indigent veterans and their close relatives. Your questions are directed to the administration of these taxes in Wayne County, a charter county.

Counties are directed to levy taxes for the relief of indigent veterans and their relatives in an amount not to exceed 1/10 of a mill annually (2/10 of a mill in an emergency). MCL 35.21; MSA 4.1051. The precise amount of the levy is not specified by the statute, but it has been held that 'the mandatory provision has been fulfilled as long as a reasonable tax is levied.' OAG, 1933-1934, p 205, 206 (February 17, 1933), and OAG, 1979-1980, No 5554, p 374, 376 (September 6, 1979).

The statute establishing this tax levy for the relief of indigent veterans also creates a fund (the 'soldiers' relief fund') to be held by the county treasurer out of which such taxes are to be disbursed. Money in the soldiers' relief fund is to be paid out by the county treasurer on order of the county's soldiers' relief commission, duly signed by the chairperson and secretary of the commission. The soldiers' relief commission is a three-member body, and its members are to be appointed by the county's judge of probate. MCL 35.22; MSA 4.1052. However, if a county establishes a department of veterans' affairs, that department supplants the soldiers' relief commission. MCL 35.622; MSA 4.1153(2).

It is my understanding that Wayne County had a soldiers' relief commission until the county government was reorganized in March, 1983, following the adoption of the Wayne County charter by the electorate of the county on November 3, 1981. It is also my understanding that since that time, veterans' affairs, including presumably approvals of disbursements from the soldiers' relief fund, have been administered by the Soldiers' Relief Unit within the Office of Health and Community Services (1983-1987), and by the Division of Veterans' Affairs within the Department of Health and Community Services (1987 to present).

In 1984, Wayne County Ordinance 84-109 seemed to review the county's soldiers' relief commission. However, I am advised by officials of Wayne County that this ordinance was never implemented. During 1983-1985, the commissioners of the then-dissolved soldiers' relief commission sued Wayne County to challenge this dissolution. On May 23, 1985, Judge John R. Kirwan of the Wayne County Circuit Court dismissed this case and approved a compromise and settlement agreement. That agreement indicated that the plaintiffs were members of the former Soldiers and Sailors Relief Commission. In paragraph 3 of the agreement, the county stated explicitly that the agreement was not to be read as implying in fact or in law that:

'a Soldiers and Sailors Relief Commission existed subsequent to the resolution of the Wayne County Board of Commissioners on March 24, 1983, abolishing the Soldiers and Sailors Relief Commission.'

Your first question is:

'Who has the legal appointing authority for the Wayne County Soldiers Relief Commission?'

A soliders' relief commission is a three-member body, and its members are to be appointed by the county's judge of probate. MCL 35.22; MSA 4.1052. According to OAG, 1928-1930, p 690 (December 12, 1929), where there is more than one probate judge in a county, such judges have equal powers of appointment to fill a vacancy in the membership of a soldiers' relief commission.

As noted above, money in the soldiers' relief fund is to be administered by the soldiers' relief commission (per MCL 35.22; MSA 4.1052) unless the county establishes a department of veterans' affairs to supplant the soldiers' relief commission pursuant to MCL 35.622; MSA 4.1153(2).

The act under which Wayne County became a charter county provides that a county charter shall provide for all of the following:

'(d) Except as provided in subdivision (c) [concerning partisan election of certain county officers], the continuation of all existing county offices, boards, commissions, and departments whether established by law or by action of the county board of commissioners; the performance of their respective duties by other county offices, boards, commissions, and departments; or for the discontinuance of these county offices, boards, commissions, and departments. . . .

'(g) That the general statutes and local acts of this state regarding counties and county officers shall continue in effect except to the extent that this act permits the charter to provide otherwise, if the charter does in fact provide otherwise.' (Emphasis added.) MCL 45.514(1); MSA 5.302(14)(1).

In the case of Lucas v Wayne County Bd of County Rd Comm'rs, 131 Mich App 642, 657-659; 348 NW2d 660 (1984), the court stated that statutory provisions not expressly mentioned in a municipal charter are automatically read into that charter:

'[T]here is ample authority for the proposition that statutory provisions not mentioned per se in a municipal charter are automatically read into the charter and become a part thereof. . . .

 

'[I]t is irrelevant that the Wayne County charter does not mirror word-for-word the language of the enabling acts. The statutory provisions, by virtue of their enactment into general law, form a part of that charter whether or not repeated therein, fill in the gaps, and supersede any possibly conflicting provision actually contained within the charter.'

Wayne County Charter, art VIII, Sec. 8.112, sets forth the understanding, described in the Lucas opinion, that state laws regarding counties continue in effect, as follows:

'Except as otherwise provided by this Charter, the general statutes and local acts of this State regarding counties and County officers continue in effect.'

Nothing in the text of the Wayne County charter refers expressly to a soliders' relief commission for that county.

Wayne County Charter, art IV, Sec. 4.385, provides that the CEO, with the consent of the County Commission, shall make appointments to commissions, but specifically excludes from that authority the appointment of commissions such as the soliders' relief commission, where the method of appointment is otherwise provided for by law:

'Unless otherwise specifically provided by this Charter or law:

'(1) The Deputy CEO, directors, deputy directors, members of boards and commissions, representatives of the County on intergovernmental bodies, and all other officials or representatives not in the classified service shall be appointed by the CEO with the approval of a majority of Commissioners serving.

'(2) If the Commission fails to act on a appointment within 30 days after its submission to the Commission, the appointment is effective.

'(3) Appointees in County government serve at the pleasure of the appointing authority.' (Emphasis added.)

The foregoing sections of the Wayne County charter reflect the requirement of MCL 45.514(1)(g); MSA 5.302(14)(1)(g), noted above, that state law regarding counties and county officers shall continue in effect 'except to the extent that this act permits the charter to provide otherwise, if the charter does in fact provide otherwise.'

In answer to your first question, it is my opinion that state law establishing a county body becomes part of the county's charter unless the chapter explicitly provides otherwise, and therefore, the Wayne County Soldiers' Relief Commission continues to exist. It it my further opinion that the statutory appointing authority for that Commission is the Wayne County Probate Court pursuant to MCL 35.22; MSA 4.1052.

Your second question is as follows:

'Does the responsibility for decisions about the composition, compensation, hours and duties regarding administration of the Veterans Relief Fund remain with the Judge of Probate . . . or does it remain with the County Executive/Supervisor [and the County Board of Commissioners] . . .?'

As set forth above, a county may administer its soldiers' relief fund through either a soldiers' relief commission (appointed by the county judge of probate) or a county department of veterans' affairs (established by the county board of commissioners).

The role of the county judge of probate with respect to the administration of the soldiers' relief commission is limited to the appointment of the membership of a soldiers' relief commission. Determinations concerning compensation would be for the county board of commissioners regardless of whether the fund were administered by a soldiers' relief commission or a county department of veterans' affairs, except that members of committees established by statute to administer a department of veterans affairs are entitled to receive the same per diem and mileage for attending meetings as members of the county board of commissioners. MCL 35.624; MSA 4.1153(3). Decisions with respect to hours and administration would be the responsibility of the soldiers' relief commission or the statutorily-established committee administering a county department of veterans affairs.

In answer to your second question, it is my opinion that the role of the county judge of probate is limited to the appointment of the members of a county soldiers' relief commission. It is my further opinion that decisions with respect to the compensation of the members of a county soldiers' relief commission or the employees of the statutorily-approved alternative of a county department of veterans' affairs rest with the county board of commissioners and that the commission or department, as the case may be, would be responsible for decisions about hours of operation and administrative procedures.

Frank J. Kelley

Attorney General