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. 5477

April 4, 1979

TAXATION:

Qualification of assessing officer

STATE ASSESSOR'S BOARD:

Qualification of assessing officer

ADMINISTRATIVE LAW AND PROCEDURE:

Rule in conflict with statute

Where section 10d of the general property tax act requires the State Assessor's Board to certify assessing officers as qualified, the board may not adopt a rule authorizing issuance of conditional certificates to newly-elected assessing officers. Assessing officers can only receive certificates indicating they are qualified by successfully completing a training course in a school of assessment practices or the passage of a test approved by the board. The board may, however, waive the examination if the person has at least five years experience.

Honorable Ralph Ostling

State Representative

The Capitol

Lansing, Michigan 48909

You have posed the following inquiry: Is there a conflict between the State Assessor's Board General Rule 1977 AACS, R 211.439 (quarterly supplement 91, [16]), and section 10d of the general property tax act, 1893 PA 206, MCLA 211.10d; MSA 7.10(4), regarding 'conditional certification' of newly-elected assessing officers?

Rule 211.439 authorizes the issuance of a conditional certificate to newly-elected assessing officers where three criteria are met, these being: (a) an application for certification with payment of a $25.00 filing fee, (b) a request for conditional certification made by the governing board of the local assessing unit, and (c) a statement from the applicant outlining the course of training he or she plans to pursue.

1893 PA 206, Sec. 10d, supra, provides:

'Notwithstanding any provision of any other law to the contrary, the annual assessment of property shall be made by a supervisor, assessing officer or director of an equalization department or bureau who has been certified as qualified by the board by reason of his having successfully completed training in a school of assessment practices or the passage of a test approved by the board and conducted by the board or an approved agency by the board that will enable him to properly discharge the functions of his office. The school shall be established by an approved educational institution in conjunction with the board and be supervised by the board and its agents and employees. The board may determine that a supervisor, assessing officer or a director of an equalization department or bureau who has not received the training, possesses the necessary qualifications for performing the functions of his office by the passage of an approved examination or waive the examination if such person has at least 5 years' experience. Upon presentation of evidence of the successful completion of the qualifications the supervisor, assessing officer or director of an equalization department or bureau shall be certified as qualified by the board. A local assessing district which does not have an assessor qualified by certification of the board may employ an assessor so qualified. If a local assessing district does not have an assessor qualified by certification of the board, and has not employed a certified assessor, the assessment shall be made by the county tax or equalization department or the state tax commission and the cost of preparing the rolls shall be charged to the local assessing district. The local assessing district shall assume the cost of training, if a certification is awarded, to the extent of course fees and recognized travel expenditures.'

An agency may not adopt a rule which exceeds the authority granted to it by statute. McKibben v Corporation and Securities Commission, 369 Mich 69; 119 NW2d 557 (1963); Sterling Secret Service, Inc. v Department of State Police, 20 Mich App 502; 174 NW2d 298 (1969).

You have advised that it is the practice of the State Assessor's Board to grant a conditional certification to every newly-elected township supervisor, regardless of previous experience in the assessment of property. In my opinion, this will broaden the statute and is in direct contravention of section 10d of the general property tax act.

Frank J. Kelley

Attorney General