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. 5352 August 11, 1978 COUNTIES: Establishment of separate funds for county medical care facility and county department of social services SOCIAL SERVICES: Establishment of separate funds for county medical care facility and county department of social services COUNTY TREASURER: Duty to care for county funds The county treasurer is the sole custodian of the county social welfare fund. The county treasurer must establish a social welfare fund separate and apart from the county general fund and pay into it all monies available for use of county department of social services from any source except monies collected from taxes for establishment or extension of the county medical care facility which shall be deposited in a separate fund for construction purposes. The county treasurer must make payments from the social welfare fund upon request or order of the county social services board or its designate when needed to meet expenditures. However, the social services board may not request the county treasurer to disburse the fund in a lump sum payment before the funds are required by it to carry out its responsibilities. John T. Dempsey Director Michigan Department of Social Services 300 South Capitol Avenue Lansing, Michigan 48926 You have asked for my opinion regarding the relationship between the county treasurer and county board of social services in administration of the county social welfare fund. Your inquiry raises the following issues which will be considered together. 1. May a county treasurer legally withhold funds from a county medical care facility and county department of social services and, if not, what recourse does the county have to compel payment of funds being withheld? 2. Has the County Social Services Board (1) the legal authority to withdraw its entire allocation at once from the County General Fund and transfer it into the social welfare fund? You have informed me that in one county monies were appropriated by the county board of commissioners for use by the county department of social services and the county medical care facility. Two funds were established; one for the county department of social services and one for the county medical care facility. However, on occasion the county treasurer has not transferred appropriated monies to either of these funds, but has kept them in the county general fund after a demand for transfer of a specific amount was made by the county social services board despite the fact that the monies were available. As a result of the withholding of these monies by the treasurer the social welfare fund was exhausted and its obligations could not be met. Const 1963, art 7, Sec. 4 provides: 'There shall be elected for four-year terms in each organized county a sheriff, a county clerk, a county treasurer, a register of deeds and a prosecuting attorney, whose duties and powers shall be provided by law.' (Emphasis supplied) Thus, the explicit powers and duties of the county treasurer must be found in the statutes. The social welfare act, 1939 PA 280, MCLA 400.1 et seq; MSA 16.401 et seq, inter alia, provides for certain duties of the county treasurer. With respect to the county social welfare fund, 1939 PA 280, supra, Sec. 73a provides: '(1) The county treasurer is designated as the custodian of all moneys provided for the use of the county department of social services. The treasurer shall create and maintain a social welfare fund. The following moneys, exclusive of funds which must be deposited in the child care fund, shall be deposited in the social welfare fund: (a) All moneys raised by the county for the use of the county department of social services. (b) All funds made available to the county department of social services by the state and federal governments. (c) All refunds and collections arising out of reimbursements to the county department of social services. (d) All funds made available to the county department from any other source whatsoever. (2) Money in the social welfare fund shall remain separate and apart from all other funds of the county and shall not be transferred to or commingled with other funds of the county. The fund shall be used exclusively for carrying out the purposes authorized by this act.' (Emphasis supplied) Regarding funds for the medical care facility, 1939 PA 280, supra, Sec. 58, provides in part: 'The social welfare board in [any county that has established a medical care facility] . . . shall have the authority to collect from any available source for the cost of care given [in the medical care facility] . . . and such collections shall be deposited in the social welfare fund.' (Emphasis supplied) Also, 1939 PA 280, supra, Sec. 58b provides: 'To defray the cost of construction in the establishment or extension of the medical care facility, the board of supervisors may raise in any 1 year a sum not exceeding. 1 mill of each dollar of assessed valuation of the county, such tax to be regarded as a special tax collected in the same manner as other county charges, and moneys received therefrom shall be transmitted to the treasurer of the county who shall deposit same in a special fund to be used solely for the purposes for which the tax is spread. Money expended for construction in the establishment or extension of the facility shall be paid out by the county treasurer on the order of the county social welfare board.' (Emphasis supplied) From the foregoing statutory authority, it is clear that the county treasurer must establish a social welfare fund separate and apart from the county general fund and pay into it all monies made available for use of the county department of social services from any source except monies collected from taxes for establishment or extension of the county medical care facility, which shall be deposited in a separate fund for construction purposes. OAG 1963-1964, No 4377, p 527 (December 17, 1964); compare, OAG 1931-1932, p 460 (February 18, 1932). Since, pursuant to 1939 PA 280, supra, Sec. 45, the county department of social services has the responsibility for operation and administration of the county medical care facility, it is my opinion that funds appropriated or otherwise made available for operating that facility are 'for the use of the county department of social services,' within the meaning of that term in Sec. 73a, supra, and must, therefore, be made a part of the social welfare fund as well. There is no statutory authority for establishing a separate county fund for the medical care facility. The social welfare fund thus established must be kept separate and apart from other county funds and must not be transferred to or commingled therewith. See, OAG, 1963-1964, No 4377, supra. In answering your request regarding lump sum transfer of monies appropriated for use of the county department of social services it is necessary to review Chapter 14 of the Revised Statutes of 1846, Sec. 40, which states: 'It shall be the duty of the county treasurer to receive all moneys belonging to the county, from whatever source they may be derived; and all moneys received by him for the use of the county, shall be paid by him only on the order of the board of supervisors, signed by their clerk, and countersigned by their chairman, except when special provision for the payment thereof is or shall be otherwise made by law.' [Emphasis supplied] Also, 1939 PA 280, supra, Sec. 74 makes special provision for the payment of social welfare fund monies. It provides: 'All moneys in the child care fund provided for the use of the county department and all moneys in the social welfare fund shall be disbursed on the order or warrant of the county-department, over the signature of a person or persons designated by the board. The board shall require a suitable and adequate bond from all persons designated to sign such orders conditioned for the proper handling of all such disbursements. All purchases by the board shall, insofar as possible, be placed with business concerns located within the county for which such board is appointed and shall be spread equitably among business concerns. (Emphasis added) Thus, the county treasurer must make payments from the social welfare fund upon request or order of the county social services board or its designate when needed to meet expenditures. However, that is not to say that the social services board could request the county treasurer to disburse the fund in one lump sum, thereby establishing its own separate account and removing those funds from interest bearing investments. See, OAG, 1941-1942, No 21702, p 411 (November 12, 1941). In this regard, 1932 PA 40, Sec. 3, MCLA 129.11 et seq; MSA 3.751 et seq, provides in pertinent part, as follows: 'Upon designation of any depository or depositories in compliance with the provisions of this act, it shall be the duty of such treasurer or tax collector to deposit all funds coming into his hands, including tax moneys, therein in his name as treasurer or tax collector, and in such proportion and manner as may be provided by said resolution.' Similarly 1909 PA 99, Sec. 1, MCLA 129.31 et seq; MSA 3.531 et seq, provides: 'It shall be the duty of the county treasurer of any county to deposit daily all moneys, drafts, or checks on hand received by him as such treasurer. . . .' Surplus funds may be invested by the county treasurer when authorized by the county board of commissioners pursuant to 1943 PA 20, as amended by 1977 PA 66; MCLA 129.91; MSA 3.843(1). However, such investments must be of such a nature and duration as to permit the money to be available when needed. The actual maintenance of the county funds in question, e.g., establishment of such funds and deposits in and withdrawals from designated depositories, is the responsibility of the county treasurer. See, OAG, 1958, No 3194, supra. See also, 1909 PA 99, Sec. 1, MCLA 129.31; MSA 5.531. The county treasurer is the sole custodian of the county social welfare fund; however, he or she must withdraw such funds from the depository as needed. See, OAG, 1930-1932, p 89 (January 13, 1931). Nor does the board itself have any authority to make transfers or withdrawals from the county social welfare fund or limit the county treasurer's authority to do so. Therefore, it is my opinion that the social services board may not seek a lump sum payment of the entire amount appropriated to the social welfare fund. Compare, OAG, 1930-1932, p 89, supra, OAG, 1931-1932, p 460, supra, and OAG 1941-1942, No 21702, p 411, supra. However, as stated, it is the county treasurer's statutory responsibility to pay to the social welfare fund from the county general fund or any other source monies appropriated or otherwise made available for the use of the county department of social services when needed. When the social welfare fund has been established and the county treasurer has properly performed his duties, there is no need for lump sum withdrawal, and the proper checks and balances between the two units of local government can be maintained. In OAG, 1939-1940, p 81 (April 11, 1939) it was held that a county treasurer must pay certain bills duly approved by the county board of commissioners. That opinion stated in part, as follows: '. . . [I]t appears that a county clerk or county treasurer is duty bound to pay an order duly authorized by the board of [commissioners] . . ..' Two later opinions dealt with an exception to this general rule and held that where the county treasurer knows that the purposes for the appropriation are unlawful, he may refuse disbursement. See, OAG, 1958, No 3194, p 84 (March 17, 1958); OAG, 1941-1942, No 19044, p 81 (March 5, 1941). However, both of the opinions suggested caution. The treasurer should not lightly undertake to make a determination as to the legality or propriety of the board action, and in case of any doubt whatsoever, he should seek the advice of the county prosecuting attorney. Where no legal authority exists for the county treasurer to do so, any withholding of social welfare fund monies would be unlawful, particularly in a case where appropriations to the social welfare fund have been made by the board of commissioners, demand for those appropriations has been made of the county treasurer by the social welfare board, and need for the funds exists. The last issue concerns what can be done to compel a recalcitrant county treasurer to make appropriated funds available to the county social welfare board. The traditional remedy for compelling public officers to perform their duty is the writ of mandamus. See, e.g., Iron County Board of Supervisors v City of Crystal Falls, 23 Mich App 319, 321-322; 178 NW2d 52 (1970) and cases cited therein. To support the issuance of mandamus, a plaintiff must have (1) a clear legal right to performance of the specific act sought to be compelled and (2) the defendant must have a clear legal duty to perform such act, which must be a ministerial act, the duty to perform which is prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Iron County Board of Supervisors, supra, 322. Generally, the duties of a county treasurer are ministerial. City of Jackson v Jackson County Treasurer, 117 Mich 305; 75 NW 617 (1898); Friedman v Horning, 128 Mich 606; 87 NW 752 (1901). However, exceptional circumstances can justify a ministerial officer in his failure to comply with a statutory duty. Iron County Board of Supervisors, supra, 323. When the county treasurer refuses to transfer funds appropriated for a lawful purpose after a demand and a showing of need for the funds to meet expenditures is made, mandamus will lie to compel the county treasurer to pay over those funds. Frank J. Kelley Attorney General (1)