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. 5383

November 15, 1978

BOARD OF EXAMINERS IN MORTUARY SCIENCE:

Adoption of rule limiting assignments to public member

ADMINISTRATIVE LAW AND PROCEDURE:

Rule limiting assignments to public member of a board

The Board of Examiners in Mortuary Science may not adopt a rule excluding its public member from performing certain tasks assigned to the professional members of the board.

Board of Examiners in Mortuary Science

905 Southland Drive

Lansing, Michigan 48910

You have asked my opinion as to whether the Board of Examiners in Mortuary Science may adopt a rule excluding its public member from performing certain tasks assigned to the professional members of the board. These assignments, which are a part of the board's exercise of its authority and responsibility under the mortuary science act, 1949 PA 268, as amended; MCLA 338.861 et seq; MSA 14.509(1) et seq, include but are not limited to interviewing resident trainee applicants, deciding whether an apparent violation warrants initiating administrative proceedings, and giving the oral parts of the license examination. The decision of any board member performing these tasks is subject to review and reversal or affirmation by the full board.

I am informed that these assignments have been performed by a public member of the board for a number of years.

The test for the validity of a rule is set forth in Chesapeake & Ohio RR Co v Public Service Comm, 59 Mich App 88, 98-99, 228 NW2d 843, 849 (1975):

'. . . Where an agency is empowered to make rules, courts employ a three-fold test to determine the validity of the rules it promulgates: (1) whether the rule is within the matter covered by the enabling statute; (2) if so, whether it complies with the underlying legislative intent; and (3) if it meets the first two requirements, when it is neither arbitrary nor capricious. . . .'

The Board of Examiners in Mortuary Science is authorized to make rules regarding its internal procedures. 1949 PA 268, supra, Sec. 2, provides in pertinent part:

'Said board is authorized to select from its own membership a chairman; also to adopt and promulgate such rules and regulations for the transaction of its business and the betterment and promotion of the standards of service and practice to be followed in the profession of mortuary science in the state of Michigan, as it may deem expedient and consistent with the laws of the state. . . .' MCLA 338.862; MSA 14.509(2)

This condition being satisfied, the proposed rule must then be tested against the legislative intent ascertained in 1949 PA 268, supra. Established principles of statutory construction require that legislative intent be determined from consideration of all provisions of a statute as well as its purpose. Montiy v Civil Service Board of City of East Detroit, 54 Mich App 510, 221 NW2d 248 (1974).

1949 PA 268, supra, Sec. 1, prescribes the composition of the board to be 6 members licensed to practice mortuary science, 1 representative of the general public and the Director of the Department of Licensing and Regulation who serves ex-officio.

The remaining provisions of 1949 PA 268, supra, except for stating that the ex-officio member is without vote and authorizing the chairman of the board to perform the duties and functions incident to that office, do not distinguish among the functions of individual board members.

The term 'member of the board' appears in various regulatory portions of 1949 PA 268, supra, conferring authority upon individual board members without reference to the basis on which the board member qualified for appointment. 1949 PA 268, supra, Sec. 10, states that 'any member of the board' is granted the right to administer oaths to witnesses. Resident trainee applicants, pursuant to 1949 PA 268, supra, Sec. 8, must appear before 'a member of the board' who then decides whether to approve the application for a certificate subject to review by the entire board.

Similarly, portions of the statute which authorize the board as a body to exercise authority simply use the term 'the board.' Such provisions neither specifically nor impliedly limit the legislative delegation of authority to a board composed only of members who qualified by being licensed practitioners of mortuary science. Instead, the Board of Examiners in Mortuary Science is directed to exercise its functions in a collegial manner with all members participating equally in decisionmaking.

It is therefore my opinion that the Board of Examiners in Mortuary Science may not adopt a rule excluding its public member from performing certain tasks assigned to the professional members of the board.

Frank J. Kelley

Attorney General