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. 5269 February 23, 1978 MENTAL HEALTH: Status of county community mental health program employees. COUNTIES: Status of county community mental health program employees. OFFICERS AND EMPLOYEES: Status of county community mental health program employees. Where a single county establishes a community mental health program, the members of the staff of the county community mental health program are employees of an official county agency and, as such, are employees of the county. The director of a county community mental health program established by a single county has a different status from other county employees and the terms and conditions of the director's employment shall be mutually agreed upon by the community mental health board and the director. Where a county community mental health program is established by two or more counties, the boards of commissioners of the represented counties, by agreement, determine the status of employees of the program. Honorable Alvin J. DeGrow State Senator The Capitol Lansing, Michigan You have requested my opinion regarding the employment status of persons working under the supervision of the director of a county community mental health program established pursuant to the Mental Health Code, 1974 PA 258, as amended, MCLA 330.1001 et seq; MSA 14.800(1) et seq. Because the statute treats single county programs differently from multi-county programs, your question will be discussed, first with respect to a county community mental health program established to serve a single county and then with respect to a program established by more than one county. I. A County Community Mental Health Program Which Serves a Single County. Section 210 of the Mental Health Code, supra, provides that a county may elect to establish a county program by a majority vote of the county board of commissioners. When the county program is established, the county board of commissioners must then, pursuant to Section 212 of the Mental Health Code, supra, establish a county community mental health board by appointing board members. Once a county program is established, its official status is as set forth in Section 204 of the Mental Health Code, supra, which states as follows: 'A county community mental health program established under this chapter shall be an official county agency. When a county program represents a single county, the county's board of commissioners shall determine the county procedures and regulations that shall be applicable to the county program. . . .' Two factors which bear significantly on the relationship of staff of a county community mental health program to the county participating in such a program are evident from the above section. First, the county program is an official county agency. Second, the board of commissioners of the county participating in the program has the duty to determine which county procedures and regulations are to be applicable to the county program. Thus, it is clear that the members of the staff of a county community mental health program are employees of an official county agency and therefore employees of an official county agency and therefore employees of the county. Further, the county board of commissioners determines the employee orocedures and regulations which will apply to that program. (1) Therefore, in a county which has elected to have a civil service system either by statute or pursuant to the Michigan Constitution of 1963, art 11, Sec. 6, it must be determined whether these persons are subject to civil service. This must be considered on a county by county basis by analyzing the requirements of the particular statute or ordinance establishing the civil service system. Also, since employees of county community mental health programs are public employees, collective bargaining must be conducted in accordance with the public employees relations act (PERA) 1947 PA 336, as amended, MCLA 423.201 et seq; MSA 17.455(1) et seq. Section 15 of PERA states in pertinent part: 'A public employer shall bargain collectively with the representatives of its employees as defined in section 11 and is authorized to make and enter into collective bargaining agreements with such representatives.' As the employer is the county, it is the 'public employer' contemplated by PERA. Therefore, the duty to bargain imposed by the above section falls upon the county. Since employees of county community mental health programs are county employees, where the county community mental health program serves a single county and the county at large has elected participation in the Municipal Employees Retirement System, pursuant to the Municipal Employees Retirement Act, 1945 PA 135, as amended, being MCLA 38.601; MSA 5.4001, these employees would be eligible to participate in the Municipal Employees Retirement System. They would, if otherwise eligible, be able to join a retirement system created by the county pursuant to 1851 PA 156, Sec. 12a, as added by 1943 PA 249; MCLA 46.12a; MSA 5.333(1). It should be noted that the director of a county community mental health program enjoys a different status than that of individuals working under his supervision. The Mental Health Code, supra, provides in section 226 that: 'Each county community mental health board shall: (i) Appoint a director of the county community mental health program who shall meet standards of training and experience established by the department. . . .' Further, in section 230 of the Mental Health Code, supra, it is stated: 'The director of a county community mental health program shall function as the chief executive and administrative officer of the county program and shall execute and administer such county program in accordance with the approved plan and budget, the general policy guidelines established by the board, the applicable county procedures and regulations, and provisions of this chapter. The terms and conditions of a county director's employment, including tenure of service, shall be mutually agreed to by the board and the county director and shall be specified in writing.' (Emphasis supplied) These two sections of the Mental Health Code make it clear that the terms and conditions of employment of the director must be mutually agreed upon and that the rights and duties of the parties to this contract include salary and fringe benefits. As to retirement, the director is eligible for membership in the Municipal Employees Retirement System or the county retirement system, if applicable. II. County Community Mental Health Programs Which Serve Two or More Counties. With respect to a county community mental health program consisting of two or more adjoining counties, section 204 of the Mental Health Code, supra, states in pertinent part: 'When a county program represents two or more counties, the boards of commissioners of the represented counties shall, by agreement, determine the county procedures and regulations that shall be applicable to the county program. The procedures and regulations shall not take effect until at least three public hearings on the proposed procedures and regulations have been held.' As noted, this section provides that the boards of commissioners of the counties must reach an agreement regarding the applicable county procedures and regulations. (2) The agreement thus arrived at would be determinative of the status of the employees. Although the Mental Health Code does not require that the county procedures and regulations of any one participating county be applied in a specific area such as employment, in the interest of administrative efficiency, the boards of commissioners of the various counties participating may agree that the procedures and regulations of one of the participating counties would apply in any particular area. Therefore, the county boards of commissioners should be encouraged to agree that the employees of the county community mental health program should be considered employees of one of the participating counties. The cost of personnel administration would then be a charge against the county program and as such, would be apportioned pursuant to section 312 of the Mental Health Code, supra, which provides as follows: 'When a county program represents two or more counties the amount of county funds necessary to support the county program shall be paid by each county in proportion to its population, except with the consent of each county's board of commissioners a different method of county cost sharing may be utilized.' Finally, the terms and conditions of employment of a director of a multi-county program is determined in the same manner as that of a single county program; that is, by contractual arrangement with county board of commissioners specified in writing. Frank J. Kelley Attorney General (1)
This section applies only to the Wayne County community mental health program. Employees of this program are nevertheless employees of Wayne County and its procedures and regulations are to be applied as determined by the Wayne County Board of Commissioners. This is so because section 204, supra, of the Mental Health Code does not recognize the city for the purposes of determining which procedures and regulations shall be applicable to the county program. The extent of the participation of the city is limited to that set forth in the Mental Health Code, Sec. 216, supra, that the city's chief executive appoint six of the twelve board members.
(2)
It should be noted that under the Municipal Employees Retirement Act, Sec. 2(c), supra, the multi-county program itself may be eligible to join the Municipal Employees Retirement System as it comes within the broad definition of 'municipality' set forth in said act:"Municipality' means . . . (4) any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with 1 or more counties, cities, villages or townships, or any of them.'