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. 5256

January 23, 1978

OPEN MEETINGS ACT:

Watershed councils established pursuant to the local river management act.

LOCAL RIVER MANAGEMENT ACT:

Watershed councils established pursuant thereto subject to open meetings act.

The Huron River Watershed Council established pursuant to the local river management act is a public body performing a governmental function and must comply with the provisions of the Open Meetings Act.

Honorable Perry Bullard

State Representative

The Capitol

Lansing, Michigan 48901

You have requested my opinion as to whether the Huron River Watershed Council is a public body as defined by Section 2(a) of the Open Meetings Act, 1976 PA 267, Sec. 2(a); MCLA 15.262; MSA 4.1800(12), and must therefore comply with its provisions. 1976 PA 267, Sec. 2(a), supra, states:

"Public body' means any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function, or a lessee thereof performing an essential public purpose and function pursuant to the lease agreement.' [Emphasis added]

In determining whether the Huron River Watershed Council is a public body, it is necessary to consider the statute providing for its creation, 1964 PA 253; MCLA 323.301 et seq; MSA 11.430 et seq.

1964 PA 253, supra, Sec. 3(1) provides that, to promote cooperation among local governments in river management, a watershed council shall be established by the State Water Resources Commission upon petition of three or more local governments lying wholly or partially within the watershed.

Pursuant to 1964 PA 253, supra, Sec. 4, the watershed council is composed of representatives of the local governments within the watershed.

1964 PA 253, supra, Sec. 5, provides that the watershed council shall adopt bylaws to govern its operations, prepare an annual operating budget and hold annual meetings at which it elects a chairman, vice-chairman and a secretary-treasurer.

The permissive powers granted to a watershed council are set forth in 1964 PA 253, supra, Sec. 6, as follows:

'A watershed council may perform the following:

'(a) Conduct, or cause to be conducted, studies of the water resources of the watershed, including investigations of water uses, water quality and the reliability of the water resource.

'(b) Prepare periodic reports concerning, among other things, trends in water use and availability, emerging water problems and recommendations for appropriate public policies and programs necessary to maintain adequate water resources for the watershed area.

'(c) Request the commission to survey the watershed for the purpose of determining minimum levels of stream flow necessary for health, welfare and safety . . ..

'(d) Recommend the creation of a river management district or districts . . . when the need for river management seems to warrant such an action.

'(e) Advise agencies of federal, state and local governments as to the council's view of the watershed's problems and needs.

'(f) Cooperate with federal, state and local agencies in providing stream gauges, water quality sampling stations, or other water resource datagathering facilities or programs that aid the council in its responsibility for studying and reporting on water conditions.

'(g) Employ an executive secretary and such other professional, administrative or clerical staff, including consultants, as may be provided for in an approved budget.

'(h) Establish such subcommittees or advisory committees as are deemed helpful in the discharge of its functions.

'(i) Establish special project funds as needed to finance special studies outside its annual budget capacity and for this purpose the council may accept gifts and grants from private individuals, corporations and local, state or federal governments.'

In Greene v Athletic Council of Iowa State University, 251 NW2d 559 (1977), the Iowa court held that an intercollegiate athletic council established by administrative officials at a state university to manage and control intercollegiate athletic programs is subject to the Iowa open meetings statute. ICA 28A.1 et seq.

In arriving at this conclusion, the court referred to the functions of the intercollegiate athletic council and noted that it had been delegated authority from the board of regents to assume financial responsibility for athletic teams and athletic contests and that it expended a considerable sum in carrying out its functions. Based upon its review of the activities of the intercollegiate athletic council, the court concluded:

'Obviously the athletic council exercises governmental powers. It is a powerful decisionmaking and policymaking body which acts for the public in directing and administering intercollegiate athletics at the university. It is not a mere study or advisory group. . . .' 251 NW2d at 561

See also OAG, 1977-1978, No 5183, p --- (March 8, 1977), which discussed the distinction between committees and sub-committees having merely advisory functions and those which exercise decisionmaking and policy-making authority.

A review of the powers exercised by watershed councils clearly indicates that they are public bodies performing a governmental function. Although their principal functions involve making studies and rendering advice, watershed councils also perform other functions of a governmental nature; for example, they conduct investigations of water uses, water quality and the reliability of water resources; prepare reports concerning trends in water use and availability; participate in providing stream gauges, water quality sampling stations or other water resource data-gathering facilities and establish special project funds to finance studies. Thus, watershed councils have authority to direct the expenditures of public money.

It is therefore my opinion that the Huron River Watershed Council is within the definition of the term 'public body' as defined in 1976 PA 267, Sec. 2(a), supra, and must comply with the Open Meetings Act, supra.

Frank J. Kelley

Attorney General