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. 6871 September 18, 1995 SOCIAL SERVICES, DEPARTMENT OF CONSTITUTIONAL LAW: Validity of sections 511, 512 and 513 of 1994 PA 291 under Const 1963, art 4, Sec. 25 Validity of section 511, 512 and 513 of 1994 PA 291 under Const 1963, art 4, Sec. 25 Sections 511, 512 and 513 of 1994 PA 291, the 1994-1995 fiscal year appropriations act for the Department of Social Services, which limit the department's authority to contract for children and youth services, violate Const 1963, art 4, Sec. 25, which prohibits the Legislature from amending an act unless the act is reenacted. Gerald H. Miller Director Department of Social Services 235 South Grand Avenue Lansing, Michigan You have asked a question that may be stated as follows: Do sections 511, 512 and 513 of 1994 PA 291, the 1994-1995 fiscal year appropriations act for the Department of Social Services, which limit the department's authority to contract for children and youth services, violate Const 1963, art 4, Sec. 25, which prohibits the Legislature from amending an act unless the act is reenacted. Sections 511, 512 and 513 of 1994 PA 291, provide: Sec. 511. The department shall not be required to put up for bids contracts with service providers if currently only 1 provider in the service area exists. Existing runaway service contracts and contractors serving homeless youth shall be exempt from the bids process. Sec. 512. The department shall negotiate rates for all existing child welfare and juvenile justice contracts where essentially the same service is being continued in the same geographic area, and only competitively bid contracts for entirely new services and programs. The bid specifications and contract award determinations shall include criteria relative to provider experience placing emphasis on total years of experience in providing child welfare and juvenile justice services, provision of services to persons of similar characteristics as the target clientele, quality of prior child welfare and juvenile justice services, length of service in the targeted geographic area, and the adequacy of the provider's plan for coordinating the provision of services in the targeted geographic area. Sec. 513. All department service contracts for adoption agencies, child caring institutions, and child placing agencies shall include client needs, the services to be provided, the price to be paid, and the expected outcomes. In Const 1963, art 4, Sec. 25, which prohibits the Legislature from amending an act unless it is reenacted, the people have provided: No law shall be revised, altered or amended by reference to its title only. This section or sections of the act altered or amended shall be re-enacted and published at length. This provision was discussed in OAG, 1991-1992, No 6745, p 209, 211 (December 22, 1992): In Alan v Wayne County, 388 Mich 210, 281; 200 NW2d 628 (1972), the Supreme Court adopted a succinct formulation of that constitutional requirement, citing an earlier case: [Footnote omitted.] Mok stands for the rule that you cannot amend statute C even by putting in statute B specific words to amend statute C, unless you republish statute C as well as statute B under Const 1963, art 4, Sec. 25. (1) We adopt the rule of Mok .... If a bill under consideration is intended whether directly or indirectly to revise, alter, or amend the operation of previous statutes, then the constitution, unless and until appropriately amended, requires that the Legislature do in fact what it intends to do by operation. 388 Mich at 285. See, OAG, 1975-1976, No 4896, pp 132, 138-148 (September 9, 1975), for a thorough discussion and application of Const 1963, art 4, Sec. 25. [Emphasis in the original.] Const 1963, art 4, Sec. 25, was also discussed in OAG, 1985-1986, No 6325, p 177, 179 (December 11, 1985), which cited OAG, 1981-1982, No 5951, p 304 (August 10, 1981): "This provision was before the Michigan Supreme Court in Midland Township v State Boundary Commission, 401 Mich 641; 259 NW2d 326 (1977), and was discussed in OAG, 1975-1976, No 4896, p 132 (September 9, 1975). It requires the Legislature to reenact and republish any act which is amended by the Legislature in another act in a manner which 'dispenses with' or 'changes' provisions of the act amended." Applying this constitutional provision, it must be determined whether sections 511, 512 and 513 amend the Social Welfare Act in violation of Const 1963, art 4, Sec. 25. The Social Welfare Act, MCL 400.1 et seq; MSA 16.401 et seq, establishes the Department of Social Services as the state agency that administers welfare programs in Michigan. This statute directs the Department of Social Services to set rates and contract for children and youth services. Specifically, section 115a of the Social Welfare Act provides, in part: (1) The office [of children and youth services (2) shall: a) Establish uniform statewide daily rates for the care of children. In the case of children receiving services by or through child caring agencies licensed pursuant to Act No. 116 of the Public Acts of 1973, as amended, being sections 722.111 to 722.128 of the Michigan Compiled Laws, the daily rates may include an average daily rate for agency supervision. In a case of demonstrated need an exception for payment above the established rate may be obtained through prior written agreement with the office. Standards of care shall be in conformity with Act No. 116 of the Public Acts of 1973, as amended. (f) Enter into contracts necessary for the performance of its powers and duties and the execution of its policies. The contracts may be with a state agency, a local public agency, or a private agency, organization, association, or person to enhance, provide, or improve the availability and quality of children and youth services and programs. (m) Assist in the development of sound programs and standards for children and youth services and promote programs and policies encouraging the prevention of dependency, neglect, delinquency, and other conditions adversely affecting the welfare of children and youth. These programs and policies shall include services for families of children and youth in trouble or at risk. [Emphasis added.] Clearly, section 115a of the Social Welfare Act grants to the Department of Social Services the general discretionary power to set rates and enter into contracts it believes necessary to the performance of its duty to provide children and youth services. Further, the department is mandated to contract in order to enhance, provide and improve the availability of children and youth services. Sections 511, 512 and 513 of 1994 PA 291 limit the department's discretionary powers by prohibiting the department from competitively bidding existing contracts and forcing it to continue those contracts under a negotiated rate system. These sections also require specific bid specifications criteria and contract provisions governing specific topics. Sections 511, 512 and 513, if implemented, would in effect amend section 115a of the Social Welfare Act as it relates to the procurement of children and youth services by limiting the general discretionary power granted to the department to set rates and enter into contracts using procedures established under the delegated powers of the Social Welfare Act. The Legislature may, of course, amend section 115a of the Social Welfare Act to add these limitations on the current broad discretionary authority of the Department of Social Services to contract for children and youth services. It is my opinion, therefore, that sections 511, 512 and 513 of 1994 PA 291, the 1994-1995 fiscal year appropriations act for the Department of Social Services, which limit the department's authority to contract for children and youth services, violate Const 1963, art 4, Sec. 25, which prohibits the Legislature from amending an act unless the act is reenacted. MCL 8.5; MSA 2.216, provides a rule of statutory construction that a statute is severable unless inconsistent with a manifest legislative intent that it not be severable. Here, there is no language in 1994 PA 291 indicating a legislative intent that the remaining valid portions of the act not be implemented. The other provisions of 1994 PA 291 are capable of being carried out independently of these three sections. Thus, sections 511, 512 and 513 are severable from the rest of 1994 PA 291. OAG, 1989-1990, No 6598, p 208, 211 (August 30, 1989). Frank J. Kelley Attorney General (1)
(2)
The office is within the Michigan Department of Social Services.