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

MIKE COX, ATTORNEY GENERAL

CAMPAIGN FINANCE ACT:

CAMPAIGN CONTRIBUTIONS:

CIVIL SERVICE COMMISSION:

Political Action Committees – payroll deduction plans

A payroll deduction plan in the state classified civil service under which state personnel and other resources are used to record, collect, and disburse employee contributions to a political action committee would violate section 57 of the Michigan Campaign Finance Act, MCL 169.257, which prohibits the use of public resources to make a political contribution. A labor union's offer to reimburse the State for the expenses involved in administering a payroll deduction plan to facilitate employee contributions to a political action committee would neither obviate the violation nor permit the implementation of an otherwise prohibited plan.

Section 57 of the Michigan Campaign Finance Act, MCL 169.257: (a) is a valid exercise of legislative authority to regulate the use of public resources and to "preserve the purity of elections" under Const 1963, art 2, § 4; (b) does not infringe upon the plenary authority granted the Civil Service Commission under Const 1963, art 11, § 5; and (c) precludes the Civil Service Commission from approving provisions of a collective bargaining agreement that would require the State to administer a payroll deduction plan facilitating state employee contributions to a political action committee.

Opinion No. 7187

February 16, 2006

Honorable Tonya Schuitmaker
State Representative
The Capitol
Lansing, MI 48909-7514

You have asked several questions concerning the Civil Service Commission's authority to approve a payroll deduction plan for state employees in the classified civil service that would involve recording, collecting, and disbursing employee contributions to a union political action committee (PAC).

You first ask whether Michigan law prohibits the Civil Service Commission from approving the provisions of a collective bargaining agreement that would require the State to administer a payroll deduction plan.1  In the absence of a specific plan to review, it is presumed for purposes of this opinion that the plan would involve solicitation of the state employee to participate in the plan, recording of the employee's agreement to participate, and the collection and disbursement of the contributions to the PAC through the state payroll system.2  These actions will necessarily involve the State's use of public resources to effectuate the political contributions of its employees.

Over a period of more than 40 years, the Attorney General has issued a series of opinions consistently concluding that, absent authority, a public body cannot use public resources to influence the electorate to support or oppose a particular candidate or ballot proposal.3  In 1995, the Legislature addressed this subject by amending the Michigan Campaign Finance Act (MCFA), 1976 PA 388, MCL 169.201 et seq, to add section 57 to prohibit public bodies from using public resources to make contributions:4

(1) A public body or an individual acting for a public body shall not use or authorize the use of funds, personnel, office space, computer hardware or software, property, stationery, postage, vehicles, equipment, supplies, or other public resources to make a contribution . . . . [MCL 169.257(1); emphasis added.]

This provision applies to the State and all its agencies, departments, boards, and commissions, including the Civil Service Commission.5  To the extent the administration of a payroll deduction plan requires a state agency to utilize state equipment, state personnel, state supplies and office space, or other state resources, to record, collect, and disburse the payroll deductions, this constitutes the use of "public resources" within the scope of section 57.

Under the MCFA, a "contribution" is defined as:

[A] payment, gift, subscription, assessment, expenditure, contract, payment for services, dues, advance, forbearance, loan, or donation of money or anything of ascertainable monetary value, or a transfer of anything of ascertainable monetary value to a person, made for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question. [MCL 169.204(1); emphasis added.]

Where the Legislature has defined a term in a statute, that definition must be applied and is binding on the courts. Tryc v Michigan Veterans' Facility, 451 Mich 129, 136; 545 NW2d 642 (1996). An employee's payroll deduction payment to a PAC is a "contribution" for purposes of the MCFA. Political action committees are generally created for the specific purpose of making contributions or expenditures on behalf of or against the nomination or election of candidates, or in support of or against ballot questions.6  Thus, the employees' payroll deductions fall squarely within the MCFA's definition of "contribution" since they constitute "payment[s] . . . or donation[s] of money . . . made for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question." MCL 169.204(1).

Section 57 prohibits a public body from using public resources "to make a contribution or expenditure." MCL 169.257(1) (emphasis added). The word "make" is not defined in the statute. Undefined statutory terms are to be given their plain and ordinary meaning, MCL 8.3a, and "when considering a nonlegal word or phrase that is not defined within a statute, resort to a layman's dictionary . . . is appropriate." Horace v City of Pontiac, 456 Mich 744, 756; 575 NW2d 762 (1998). The word "make" means "'to cause to exist or happen; create.'" Frankenmuth Mutual Ins Co v Marlette Homes, Inc, 456 Mich 511, 516; 573 NW2d 611 (1998), quoting the American Heritage Dictionary, Second Edition. A public body's use of its resources to administer the payroll deduction plan would "cause" the contribution to "happen," and thus violate section 57.7

You also ask whether a union's offer to reimburse the State for expenses involved in administering a payroll deduction plan would permit implementation of an otherwise prohibited plan.

Section 57 states that a public body "shall not use or authorize the use of  . . .  public resources to make a contribution." There is nothing in the language of section 57 that indicates a violation may be remedied or excused through a reimbursement mechanism. Indeed, section 57 imposes significant penalties for its violation:

(2) A person who knowingly violates this section is guilty of a misdemeanor punishable, if the person is an individual, by a fine of not more than $1,000.00 or imprisonment for not more than 1 year, or both, or if the person is not an individual, by 1 of the following, whichever is greater:

(a) A fine of not more than $20,000.00.

(b) A fine equal to the amount of the improper contribution or expenditure. [MCL 169.257(2).]

These penalties demonstrate the Legislature's clear intent to prohibit and punish this activity. Where the language of a statute is clear, it must be enforced as written and no provisions may be added that the Legislature did not choose to include. Jones v Dep't of Corrections, 468 Mich 646, 655-656; 664 NW2d 717 (2003) (the courts may not engraft onto the terms of a statute a remedy that has no basis in the plain language of the statute); Omne Financial, Inc v Shacks, Inc, 460 Mich 305, 311; 596 NW2d 591 (1999). There is no basis in the plain language of section 57 for reading in a remedy or exception to the prohibition for unions that offer to reimburse the State for its use of public resources. To do so would be contrary to the intent of the Legislature as expressed in the plain language of section 57.8

It is my opinion, therefore, that a payroll deduction plan in the state classified civil service under which state personnel and other resources are used to record, collect, and disburse employee contributions to a political action committee would violate section 57 of the Michigan Campaign Finance Act, MCL 169.257, which prohibits the use of public resources to make a political contribution. A labor union's offer to reimburse the State for the expenses involved in administering a payroll deduction plan to facilitate employee contributions to a political action committee would neither obviate the violation nor permit the implementation of an otherwise prohibited plan.

Having determined that section 57 of the MCFA prohibits a PAC payroll deduction plan for the state classified service, the only remaining question is whether that statute improperly infringes upon the plenary authority granted the Civil Service Commission under Const 1963, art 11, § 5.

Const 1963, art 11, § 5 provides, in relevant part, that the Commission:

[S]hall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service. [Emphasis added.]

Article 11, § 5 has been described as vesting the Commission "with plenary powers in its sphere of authority." Plec v Liquor Control Comm, 322 Mich 691, 694; 34 NW2d 524 (1948); Viculin v Dep’t of Civil Service, 386 Mich 375; 192 NW2d 449 (1971). The Commission's "sphere of authority" includes the broad power to "make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service." The question is whether section 57, which prohibits a payroll deduction plan for classified employees, infringes upon that constitutional authority.

The primary objective in interpreting a constitutional provision "is to determine the text's original meaning to the ratifiers, the people, at the time of ratification." Wayne County v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). This "rule of 'common understanding'" was described by the Supreme Court in Hathcock:

"A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. 'For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.'" [Hathcock, 471 Mich at 468, quoting Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971) (emphasis in original omitted), quoting Cooley's Constitutional Limitations 81.]

The courts apply "each term's plain meaning at the time of ratification." Hathcock, 471 Mich at 468-469.

A second important rule of constitutional construction requires consideration of the circumstances surrounding the provision's adoption and the purpose sought to be accomplished. House Speaker v Governor, 443 Mich 560, 580; 506 NW2d 190 (1993). The historical origins of the provision are relevant. Federated Publications, Inc v Michigan State Univ Bd of Trustees, 460 Mich 75, 85; 594 NW2d 491 (1999).

The State's civil service system and the Commission were created in response to what was referred to as the "longstanding 'spoils system', or 'patronage system'" that prevailed in state personnel practices of early twentieth century Michigan. Council No 11, AFSCME v Civil Service Comm, 408 Mich 385, 397; 292 NW2d 442 (1980) (citation omitted). This system was described as the practice of filling government jobs with "loyal party workers who [could] be counted on not to do the state job better than it [could] be done by others, but rather to do the party work or the candidate work when elections roll around." Council No 11, 408 Mich at 397, n 10 (citation omitted). An early report on the subject detailed the "political appointments, promotions, demotions, rewards and punishments" that were a part of the traditional spoils system, and viewed "[a]ssessment schemes and participation in political activity during working hours . . .  as serious and expensive causes of poor job performance by unqualified civil servants." Id., at 397-398.

It was in this historical context that the Legislature enacted its first version of the civil service system in 1937 PA 346. Id., at 398. But legislation in 1939 essentially destroyed the new system, ultimately leading the people to adopt a constitutional amendment establishing the State's civil service system and the Commission in 1940. Id., at 398-401. Only minor changes were made to the provision upon adoption of the 1963 Constitution, now found in Const 1963, art 11, § 5.9

In answering whether section 57 infringes the Commission's constitutional authority, Council No 11, supra, is also instructive. There, the Michigan Supreme Court addressed the validity of a Civil Service Commission rule prohibiting off-duty political activities by classified employees. The plaintiff union argued that the rule conflicted with the Political Freedom Act, MCL 15.401 et seq, which authorized public employees to participate in various political activities, MCL 15.402, with the prohibition that such activities could not be "actively engaged in by a public employee during those hours when that person is being compensated for the performance of that person's duties as a public employee." MCL 15.404. The Commission argued that "its authority to order a flat ban on the off-duty as well as on-duty partisan political activity by all state classified civil service employees . . . [was] derived from 'the plain language' of Const 1963, art 11, § 5." Council No 11, 408 Mich at 393.

The Supreme Court observed that the Legislature is the branch of government with the "power" and "duty" to "protect and insure" the political freedoms of all citizens, and that the enactment of laws to assure such freedom is "therefore a particularly proper legislative concern." Id., at 394-395. The Court continued, noting that the Legislature was given specific power by the people to regulate elections in Const 1963, art 2, and that "[i]t is well settled that the Legislature of this state is empowered to enact laws to promote and regulate political campaigns and candidacies." Id., at 395. Despite these principles, the Commission in Council No 11 argued that it had "exclusive jurisdiction" under art 11, § 5, to "'legislate' on the subject of political activity by classified civil servants." Id., at 395-396.

After reviewing the history of the civil service system and the Commission's rules relating to political activity, the Court concluded that the Commission did not have authority to regulate off-duty political activity by state classified employees. Id., at 397-403. With respect to the language of art 11, § 5, the Court concluded:

The power to make "rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service" is indeed a plenary grant of power. But it is to be exercised with respect to determining the conditions "of employment", not conditions for employment. As the learned trial court so aptly put it:

"It is the purpose of the commission to keep politics out of the classified state service, not to keep classified employees out of politics." [Id., at 406; emphasis in original.]

The Court did not question the Commission's ability to regulate employment-related activity "involving internal matters such as job specifications, compensation, grievance procedures, discipline, collective bargaining and job performance," or its authority to prohibit off-duty activity that interferes with job performance. Id. The Court was careful to note that its opinion was not "qualifying" the Court's previous holding that the Commission has plenary powers within its "sphere of authority":

We intend, rather, to be understood as emphasizing that the commission's "sphere of authority" delimits its rule-making power and confines its jurisdiction over the political activity of classified personnel to on-the-job behavior related to job performance. . . . The statute does not conflict with the Civil Service Commission's authority to regulate, indeed proscribe, on-duty political activity or deal with unsatisfactory job performance attributable to off-duty political activity or any other cause on a case-by-case basis. [Id., at 408-409.]

The Court held that the Commission's blanket rule prohibiting off-duty political activity was invalid.

By enacting section 57, the Legislature restricted on-duty political activity. Statutes are presumed constitutional. Phillips v Mirac, Inc, 470 Mich 415, 422; 685 NW2d 174 (2004). Moreover, the Legislature has broad powers to protect the public interest, including its power and duty to protect the integrity of the political process under Const 1963, art 2.10  Council No 11, 408 Mich at 394-395. Ensuring that public resources are not used to advocate for or against candidates or ballot questions assists in maintaining government neutrality with respect to elections, and promotes the integrity of the political process itself. Section 57 is consistent with Const 1963, art 11, § 5 and the purpose behind the creation of the civil service system and the Commission itself to "'keep politics out of the classified state service.'" Council No 11, 408 Mich at 406. A payroll deduction plan that uses state resources to effectuate the political contributions of state employees would reinsert a political element into the classified service.

Consistent with this purpose of art 11, § 5, the Commission, through the adoption of rules, has also exercised its constitutional authority to restrict on-duty political activity. Rule 1-12.6 prohibits on-duty political activity. Rule 1-12.5 provides that "[t]he levying, solicitation, collection, or payment of any type of political assessment and the authorizing or ordering of such activity in the classified service are prohibited." Rule 6-10.3 further requires the Commission to reject or modify any provision of a collective bargaining agreement that is contrary to law or its rules. Finally, "[p]olitical activity . . . by classified employees during actual-duty time" is a prohibited subject of collective bargaining. Rule 6-3.2(b)(6).

It is my opinion, therefore, that section 57 of the Michigan Campaign Finance Act, MCL 169.257: (a) is a valid exercise of legislative authority to regulate the use of public resources and to "preserve the purity of elections" under Const 1963, art 2, § 4; (b) does not infringe upon the plenary authority granted the Civil Service Commission under Const 1963, art 11, § 5; and (c) precludes the Civil Service Commission from approving provisions of a collective bargaining agreement that would require the State to administer a payroll deduction plan facilitating state employee contributions to a political action committee.

In light of the above conclusions with respect to the applicability of section 57 of the MCFA and its application to classified state employees, it is unnecessary to address your remaining questions.

MIKE COX
Attorney General

1 Civil Service Rules permit payroll deductions for membership dues and service fees relating to a union's operation as an exclusive bargaining representative.  See Civil Service Rules 6-7.1, 6-7.2, and 6-7.3.  A payroll deduction to facilitate payments to a PAC, however, would not fall within the type of deductions permitted by these rules.

2
It is presumed that these contributions would be deposited by the State into a separate segregated fund established by the labor union to receive political contributions.  See MCL 169.255(1).

3 See, e.g., OAG, 1965-1966, No 4291, p 1 (January 4, 1965) (school district could not spend public funds to advocate a favorable vote on a tax and bond ballot proposal); OAG, 1979-1980, No 5597, p 482 (November 28, 1979) (State Civil Rights Commission could not use public funds "to urge the electorate to support or oppose a particular candidate or ballot proposal"); OAG, 1987-1988, No 6423, pp 33, 35 (February 24, 1987); OAG, 1991-1992, No 6710, pp 125, 127 (February 13, 1992); OAG, 1993-1994, No 6763, p 45 (August 4, 1993) ("School districts may not permit their offices and phone equipment to be used in a restrictive manner for advocacy of one side of a ballot issue . . . .  School districts may not endorse a particular candidate or ballot proposal"); OAG, 1993-1994, No 6785, p 102 (February 1, 1994).  See also, OAG, 1991-1992, No 6709, p 124 (February 11, 1992) (state agency cannot use public funds to lobby unless authorized by law to do so), and Mosier v Wayne County Bd of Auditors, 295 Mich 27, 31; 294 NW 85 (1940) (addressing county board's lack of authority to expend county resources for political purpose).

4 Although not relevant here, section 57(1) lists certain activities that are not proscribed by that subsection of the MCFA:

            (a)  The expression of views by an elected or appointed public official who has policy making responsibilities.

                (b)  The production or dissemination of factual information concerning issues relevant to the function of the public body.

                (c)  The production or dissemination of debates, interviews, commentary, or information by a broadcasting station, newspaper, magazine, or other periodical or publication in the regular course of broadcasting or publication.

                (d)  The use of a public facility owned or leased by, or on behalf of, a public body if any candidate or committee has an equal opportunity to use the public facility.

                (e)  The use of a public facility owned or leased by, or on behalf of, a public body if that facility is primarily used as a family dwelling and is not used to conduct a fund-raising event.

                (f)  An elected or appointed public official or an employee of a public body who, when not acting for a public body but is on his or her own personal time, is expressing his or her own personal views, is expending his or her own personal funds, or is providing his or her own personal volunteer services.  [MCL 169.257(1)(a)-(f).]

5 MCL 169.211(6) provides that "public body" means one or more of the following:

         (a) A state agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government.

(b) The legislature or an agency, board, commission, or council in the legislative branch of state government.

(c) A county, city, township, village, intercounty, intercity, or regional governing body; a council, school district, special district, or municipal corporation; or a board, department, commission, or council or an agency of a board, department, commission, or council.

(d) Any other body that is created by state or local authority or is primarily funded by or through state or local authority, which body exercises governmental or proprietary authority or performs a governmental or proprietary function.

 The Civil Service Commission is a state commission within the executive branch of government.  See, e.g., Straus v Governor, 459 Mich 526, 535, 537, n 7; 592 NW2d 53 (1999).

6 The term "political action committee" is not defined in the MCFA.  Rather, it is a term of art that has gained common acceptance and usage to describe independent committees or political committees established under the MCFA to support or oppose candidates.  See MCL 169.203(4), 169.208(3), 169.211(2).  See also, MCL 8.3a (setting forth the rule requiring that words and phrases be construed according to the common and approved usage of the language).  These committees must register with the Secretary of State or county clerk, adhere to contribution limits regarding contributions they make, and file periodic campaign finance reports.  See MCL 169.224, 169.226, 169.252.  Labor organizations are prohibited from using treasury funds to make contributions or expenditures on behalf of or against candidates, MCL 169.254, unless they establish a separate segregated fund under MCL 169.255(1) – in other words, a political action committee.  MCL 169.255 specifically limits the use of a separate segregated fund "to making contributions to, and expenditures on behalf of, candidate committees, ballot question committees, political party committees, political committees, and independent committees."  The Attorney General opined in OAG, 1993-1994, No 6785, supra, n 3, that public schools and universities, as public bodies, are prohibited from establishing separate segregated funds.  In the absence of a specific factual scenario, it is assumed that the union PAC will use the payroll deduction payments to influence, or assist in, the nomination or election of a candidate or for the qualification, passage, or defeat of a ballot question.

7 It is worth emphasizing that public employees, like all citizens, are free to make political contributions to the candidates or causes of their choice.  But they have no First Amendment or other right to have the government subsidize those contributions through a payroll deduction plan.  See Toledo Area AFL-CIO Council v Pizza, 154 F3d 307, 319-322 (CA 6, 1998). 

8 Similarly, a violation could not be avoided by requiring the union to pay the anticipated costs before they are actually incurred.  The language of MCL 169.257(1) unqualifiedly prohibits the use of public resources for the described political purposes, making no exception for compensated uses.  This is, therefore, distinguishable from the circumstances analyzed in Michigan State AFL-CIO v Civil Service Comm, 455 Mich 720, 734; 566 NW2d 258 (1997) (addressing section 4 of the Political Freedom Act, MCL 15.404).

9 Art 11, § 5 was again amended by the people in 1978 to permit collective bargaining by state troopers.

10 Specifically, Const 1963, art 2, § 4 provides that the Legislature "shall enact laws to regulate the . . . manner of all nominations and elections," and "shall enact laws to preserve the purity of elections."  Additionally, exercising its powers under various provisions of the constitution, the Legislature has, for example, transferred duties and powers exercised by a person holding a position covered by the state civil service to a board, Civil Service Comm v Dep't of Labor, 424 Mich 571; 384 NW2d 728 (1986); vested the Civil Rights Commission with jurisdiction over sex discrimination claims by classified state employees, Marsh v Dep't of Civil Service, 142 Mich App 557; 370 NW2d 613 (1985), and Dep't of Civil Rights ex rel Jones v Dep't of Civil Service, 101 Mich App 295; 301 NW2d 12 (1980), and, provided supplemental employment benefits to mental health workers, Oakley v Dep't of Mental Health, 136 Mich App 58; 355 NW2d 650 (1984).  In Michigan State AFL-CIO v Civil Service Comm, 455 Mich 720, 734, supra, n 8, the Court applied provisions of the Political Freedom Act, 1976 PA 169, MCL 15.401 et seq, to invalidate a Civil Service Commission rule that prohibited political activity by an employee on union leave.  Citing the language of the statute and Council No 11, the Court ruled that the Legislature could, and did, preempt application of the rule insofar as while on union leave:  (1) the employee was not being compensated by the employer, or (2) any compensation paid was not for the performance of the duties as a public employee.  MCL 15.404 provides:  "The activities permitted by sections 2 and 3 [certain political activities] shall not be actively engaged in by a public employee during those hours when that person is being compensated for the performance of that person's duties as a public employee."