STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5241

November 7, 1977

BARRIER FREE DESIGN BOARD:

Representation of physically limited persons on board.

Members must serve as impartial adjudicators.

The legislature has restricted the total number of physically limited members of the Barrier Free Design Board to four and the total number of wheelchair user members to one.

The primary responsibility of Barrier Free Design Board members is to be impartial adjudicators.

Honorable Michael J. O'Brien

State Senator

The Capitol

Lansing, Michigan 48933

You have requested my opinion upon two questions regarding the Barrier Free Design Board:

The Barrier Free Design Board was created by 1966 PA 1, Sec. 5(1); MCLA 125.1355(1); MSA 3.447(125)(1), which states:

In characterizing and differentiating the qualifications for office of each of the nine members of the board, it is clear that the legislature intended that each member would represent an affected interest which should be represented. Therefore, a construction of the statute which would allow more than one member of the board to be wheelchair users would be contrary to this intention.

Moreover, a review of the legislative history of 1966 PA 1, Sec. 5(1), as amended by 1974 PA 190, supra, demonstrates a clear intent on the part of the legislature to restrict the total number of physically limited persons serving on the Barrier Free Design Board to four and the number of wheelchair users to one. 1974 PA 190, supra. The legislature enacted 1974 PA 190, amending Section 5 of 1966 PA 1, supra, by means of 1973 House Bill 5214. As originally introduced, the bill made no provision for the creation of a barrier free design board. The Committee on City Government recommended a substitute to the House Bill which purported to amend 1966 PA 1, Sec. 5, supra, to create an accessibility and utilization review board to be composed of nine members to consist of:

The Committee substitute was adopted on second reading. 2 House Journal 1974, p 1340.

On May 6, 1974 Representative Sietsema, one of the original sponsors of the Bill, proposed his own substitute which would amend Section 5 to provide for the creation of a barrier free design board consisting of nine members. His substitute provided in pertinent part as follows:

His substitute was adopted on second reading. 2 House Journal 1974, p 1421. Thereafter, the House of Representatives amended Section 5(1) of the Sietsema substitute to House Bill 5214 to strike the word 'HANDICAPPED', underscored above, and insert therefore 'PHYSICALLYLIMITED'. 2 House Journal 1974, p 1536. Thereafter, the Sietsema substitute to House Bill 5214 was enacted into law without change. No effort was made to increase the number of physically limited members to five, nor to increase wheelchair users from one to two. Therefore, it must be concluded that the legislature commanded that the total number of physically limited members of the Barrier Free Design Board is limited to four and the total number of wheelchair user members is limited to one.

Therefore, it is my opinion that a wheelchair user may not serve on the board as the representative of the general public.

In answering your second question, the following language from 1 Am Jur 2d, Administrative Law, Sec. 166, p 968, is relevant and reads in pertinent part:

As indicated above, the Barrier Free Design Board was created for the primary purpose of granting or denying applications for exceptions to the barrier free design requirements contained in the State Construction Code. Consequently, it is evident that the legislature intended the Barrier Free Design Board to be adjudicatory in nature.

It is, however, equally clear that the legislature, by specifically designating the interest group to be represented by each individual board member, intended each board member to utilize his or her own expertise in the performance of the statutory duties. In utilizing such expertise, the primary objective of the broad representation on the board is achieved so long as its members act as imparital adjudicators, not advocates.

Therefore, it is my opinion that although the Barrier Free Design Board members in the performance of their duties may utilize the expertise for which they were appointed, their primary responsibility is being impartial adjudicators.

Frank J. Kelley