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. 5278

March 15, 1978

STATE BOARD OF EDUCATION:

Day-care centers

DEPARTMENT OF SOCIAL SERVICES:

Day-care centers

DAY-CARE CENTERS:

Rules governing day-care centers operated by an intermediate school board or by a school district

The State Board of Education is required to promulgate rules governing the operation of day-care programs operated by intermediate and certain local school districts; the Department of Social Services has rule-making authority over day-care programs conducted by other governmental and private child care organizations.

Honorable Thomas Guastello

State Senator

The Capitol

Lansing, Michigan

Honorable Jack Faxon

State Senator

The Capitol

Lansing, Michigan

You have both requested my opinion as to whether the State Board of Education or the Department of Social Services has the authority to promulgate administrative rules regulating day care programs operated by public school districts.

Section 1285 of the School Code of 1976, 1976 PA 451; MCLA 380.1285; MSA 15.41285, provides:

'(1) An intermediate school board or the board of a school district other than a primary school district may establish nursery schools or approved day care programs and may provide suitable rooms, employ qualified personnel, and supply equipment for the programs. The board may charge tuition or fees and accept gifts or federal funds earmarked for the day care program. Cooperative arrangements shall be made with the state departments of social services, public health, and mental health to assure maximum utilization of those agencies in providing health and welfare services for children receiving day care. The board may determine the age at which a child may be enrolled in the nursery or day care programs.

'(2) The state board shall promulgate rules with respect to day care programs.'

By this section, the State Board of Education is mandated to promulgate rules regulating day care programs operated by intermediate or certain local school districts.

1973 PA 116, MCLA 722.111 et seq; MSA 25.358(11) et seq, provides for the licensing and regulation of child care organizations by the Department of Social Services. 1973 PA 116, supra, Sec. 2(1), states:

'The department of social services, hereinafter referred to as the 'department', is responsible for the development of rules for the care and protection of children in organizations covered by this act and for the promulgation of these rules pursuant to Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the Michigan Compiled Laws.'

1973 PA 116, supra, Sec. 1(1), defines a child care organization as follows:

'(1) 'Child care organization' means a governmental or nongovernmental organization having as its principal function the receiving of minor children under 18 years of age for care, maintenance, training, and supervision, notwithstanding that educational instruction may be given. Child care organization includes organizations commonly described as child caring institutions, child placing agencies, operative preschools, foster homes, group homes; or day care homes.'

(emphasis supplied)

The principal function of school districts is to provide instruction and education to children although incidentally it is also necessary to provide for their care and supervision. School District No 3, Township of Norton v Municipal Finance Commission, 339 Mich 96; 62 NW2d 445 (1954).

It is to be noted that at the time 1973 PA 116, supra, was enacted, the legislature had already authorized the State Board of Education to promulgate administrative rules for day-care programs operated by certain school districts and that the board had promulgated such rules. See 1955 PA 269 as amended by 1966 PA 300; 1969 AACS R 340.491 et seq. Thus, it is clear that the legislature did not intend to include school districts within the definition of child care organizations contained in 1973 PA 116, Sec. 1(1), supra.

When two statutory enactments conflict, a resolution must be made by resort to established principles of statutory construction. The applicable rule is that a specific statute will prevail over the general. Imlay Township Primary School District No 5 v State Board of Education, 359 Mich 478; 102 NW2d 720 (1960); Attorney General ex rel Owen v Joyce, 233 Mich 619; 207 NW 863 (1926). Since the statute authorizing the Department of Social Services to promulgate rules with respect to child care organizations is generic and the statute requiring the State Board of Education to promulgate rules with respect to day care programs operated by intermediate and certain local school districts is specific, it may be concluded that the legislature did not intend to divest the State Board of Education of its responsibility over day-care programs established by an intermediate school board or by the board of certain local school districts.

Thus, it is my opinion that the State Board of Education is required to promulgate rules governing the operation of day care programs operated by intermediate and certain local school districts. Under 1973 PA 116, supra, the Department of Social Services has rule making authority over day care programs conducted by other governmental and private child care organizations.

Frank J. Kelley

Attorney General