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. 5518

August 8, 1979

BOARD OF COUNTY COMMISSIONERS:

Payment of per diem for attending regional planning commission meetings

REGIONAL PLANNING COMMISSION:

Payment of per diem to county commissioner for attending regional planning commission meetings

OFFICERS AND EMPLOYEES:

Payment of per diem to county commissioner for attending regional planning commission meetings

No per diem or mileage compensation may be paid from the county general fund to a member of the county board of commissioners for attending meetings of a regional planning commission.

The Honorable Alvin J. DeGrow

State Senator

P.O. Box 240

Lansing, Michigan 48902

The Honorable Quincy Hoffman

State Representative

P.O. Box 30014

Lansing, Michigan 48909

Each of you has asked my opinion as to whether a county commissioner may be paid per diem expenses out of the county general fund, upon approval of the county board of commissioners, for attending regional planning commission meetings.

The first question to be determined is whether a regional planning commission is the business of the county board of commissioners. In Crain v Gibson, 73 Mich App 192; 50 NW2d 792 (1977), leave to appeal den 400 Mich 828 (1977), a county commissioner pursuant to a resolution of the board performed services as the administrator of the Federal Emergency Employment Program in Wexford County. He was not paid any salary, but was paid a per diem allowance. The Court of Appeals posed the question as follows:

'The question, then, in applying MCLA 46.30a; MSA 5.353(1), is one of determining what matters involve the lawful compensation of an individual commissioner who is carrying out legitimate business of the board under authority of the board, and what matters instead fall within the prohibited appointments or employment proscribed by MCLA 46.30a; MSA 5.353(1). 73 Mich App 204

The Court answered the question:

'What is the business of the county board of commissioners? Apart from its legislative powers and specific administrative powers and duties imposed upon it by the Legislature, it has only such administrative powers as are necessary to accomplish its own organizational housekeeping and to enable it to attend to the details of performing its other duties. An example used by defendant's counsel in arguing clearly illustrates the distinction to be made. Noting that the board's Building and Grounds Committee must meet regularly to insure that the maintenance and repairs of county buildings and grounds are attended to and custodial work performed, it was argued that the committee members might personally perform such work and be compensated therefor. The argument fails to distinguish between county business and the business (or responsibility) of the county board of commissioners. It is the business of the county to have public buildings maintained and repaired. It is the business of the county board of commissioners to see that the necessary work is done. It is not the duty of the board, or of any individual member thereof, to do the work personally. The abstract work done in Hanna v Chalker, supra, was county business and the employee-commissioner could be compensated prior to the enactment of MCLA 46.30a; MSA 5.353(1), just as any work done by a county employee was compensable; but he was compensated as an employee and not as a commissioner performing work of the board of commissioners under MCLA 46.30(1)(c); MSA 5.353(1)(c).

'Statutes such as MCLA 46.30(1)(c); MSA 5.353(1)(c), are designed to protect the public by keeping the business of government untainted by the business of self-interest.

'An examination of the duties of the defendant, noted above, discloses that they were not mandated by act of the Legislature nor by the Federal legislation or implementing regulations of the Emergency Employment Programs. If a county participated in the EEA programs, these were things that had to be done to implement and comply with the Federal acts and regulations, and it would be the duty of the board of commissioners to insure that they were done. But the day-to-day work involved in performing those duties was not the personal responsibility of the board of commissioners. The function of a 'co-ordinator' or 'liaison officer' was not the function of the board. This implementation of the program, while county business, is not the business of the board of commissioners and the defendant's day-to-day performance of the duties described above was ordinary employment and within the express prohibition of MCLA 46.30a; MSA 5.353(1). 73 Mich App 204-206

Crain v Gibson, supra, further states that powers granted to a county board of commissioners must be strictly construed in that the board has only those powers which have been granted to it by the state constitution, statutes, and those duties implied from the constitution and statutes 73 Mich App 200.

1945 PA 281, as amended; MCLA 125.11 et seq; MSA 5.3008(1), allows local governmental units to form regional planning commissions. 1945 PA 281, Sec. 2; MCLA 125.12; MSA 5.3008(2), specifically permits members of county boards of commissioners to serve on regional planning commissions. This statute does not however require county commissioners to serve on regional planning commissions, but merely provides that they not be prohibited from serving. This section leads to the conclusion that, even though membership on a regional planning commission may directly or indirectly involve county business, it is not the business or responsibility of a county board of commissioners.

1945 PA 281, Sec. 4; MCLA 125.14; MSA 5.3008(4), provides compensation to members of the regional planning commission from that commission itself. As originally enacted 1945 PA 281, Sec. 4, supra, contained a proviso to the effect that:

'. . . this shall not affect in any way remuneration received by any state or local official who, in addition to his responsibilities and duties as a state or local official, serves also as a member of the regional planning commission. All members may be reimbursed for actual expenses incurred as members of the commission in carrying out the work of the commission.

This section was amended by 1976 PA 427 and currently provides:

'Members of the regional planning commission may receive such per diem allowance and mileage as is established by the regional planning commission for each meeting attended and may be reimbursed for actual expenses incurred as members of the commission in carrying out the work of the commission.' . . . [Emphasis added]

This amendment indicates legislative intent that the sole compensation for attendance at meetings of the regional planning commission be paid for by the regional planning commission. The fact that 1945 PA 281, Sec. 2, supra, permits members of county boards of commissioners to serve on regional planning commissions is not an indication of intent that the county pay per diem compensation for such attendance, especially since Crain v Gibson, supra, requires a strict construction of the county's power.

Thus, it is my opinion that no per diem or mileage compensation may be paid from the county general fund to a member of the county board of commissioners for attending a meeting of a regional planning commission.

Frank J. Kelley

Attorney General