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. 5547

August 16, 1979

HIGHWAYS AND ROADS:

Respective authority of State Transportation Commission and Director of State Transportation Department

DEPARTMENT OF TRANSPORTATION:

Respective authority of State Transportation Commission and Director of State Transportation Department

CONSTITUTION OF MICHIGAN:

Art 5, Sec. 28 (Department of State Transportation)

The State Transportation Commission no longer has the authority or duty to administer the Department of Transportation. It is, however, required to establish transportation program objectives to be pursued by the Director of the Department of State Transportation with respect to all modes of transportation. The Legislature may only control the manner and method by which the State Transportation Commission exercises its policy-making functions. The Legislature may not grant additional powers to the Commission which impinge upon the powers of the Director of the Department of State Transportation.

Mr. John P. Woodford

Director

Michigan Department of Transportation

P.O. Box 30050

Lansing, Michigan 48933

You have requested my opinion on the following question:

'What is the meaning of section 7(1)(b) in Act 484 of 1978 when taken as part of the whole of the other transportation statutes enacted in the same year, along with the amendment Resolution M, which amended the Constitution with respect to the State Highway/State Transportation Commission and the Director of the Department of Transportation?

Prior to the adoption of Proposal M by the people, Const 1963, art 5, Sec. 28, in pertinent part, stated:

'There is hereby established a state highway commission, which shall administer the state highway department and have jurisdiction and control over all state trunkline highways and appurtenant facilities, and such other public works of the state, as provided by law.

'The state highway commission shall appoint and may remove a state highway director, who shall be a competent highway engineer and administrator. He shall be the principal executive officer of the state highway department and shall be responsible for executing the policy of the state highway commission.' [Emphasis added]

Const 1963, art 5, Sec. 28, as amended by Proposal M, in pertinent part currently states:

'There is hereby established a state transportation commission, which shall establish policy for the state transportation department transportation programs and facilities, and such other public works of the state as provided by law.

'The director of the state transportation department shall be appointed as provided by law and shall be the principal executive officer of the state transportation department and shall be responsible for executing the policy of the state transportation commission.'

[Emphasis added]

Thus, the former State Highway Commission, which had administrative control of the State Highway Department, was abolished and replaced by the State Transportation Commission charged with establishing policy for transportation programs, facilities and other public works of the state. Further, the Director of the State Transportation Department is designated as the principal executive officer of the department and is responsible for executing the policies of the Commission.

To conform to Const 1963, art 5, Sec. 28, the Legislature amended the Executive Organization Act of 1965, 1965 PA 380, MCLA 16.104 et seq; MSA 3.29(4) et seq, by enacting 1978 PA 483 which provides in pertinent part:

'Sec. 350. There is created a department of transportation.

'Sec. 351. The policy making body of the department of transportation is the state transportation commission.

'Sec. 355. The head of the department of transportation is the director of the department of transportation. . . .'

With respect to the phrase 'as provided by law,' emphasized above, which was retained in the amendment adopted by Proposal M, OAG, 1971-1972, No 4713, p 3 (January 20, 1971), construed the phrase as relating to 'the manner and method by which the State Highway Commission shall exercise its administrative control. . . .' Accordingly, the opinion held, the State Highway Commission derived its jurisdiction from the Constitution and the Legislature could only control the manner and method by which the Commission could exercise its constitutional powers.

As a result of the adoption of Proposal M, the State Transportation Commission is now limited to establishing 'policy' for State Transportation Department programs and facilities and other public works of the state 'as provided by law.'

As to the meaning of the word 'policy' used in Const 1963, art 5, Sec. 28, supra, 1978 PA 483, supra, and 1978 PA 484, supra, in City Council of City and County of Honolulu v Fasi, 52 Haw 3; 467 P2d 576 (1970), the court reviewed a dispute between public officials over their respective authority in the context of a city and county charter provision authorizing lease of city property pursuant to 'policies' established by the council. In the process of that review, the court defined the term 'policies' much broader than an ad hoc command to take specific action. It referred to requirements set up by the council as general in nature. It has also been held that a policy decision is of a general nature or adopting a broad course of action which did not include the specific ad hoc action of transferring an employee from one position to another, Wheeler v School District No 20 in County of El Paso, 33 Cal App 233; 521 P2d 978 (1974), aff'd 188 Col 262; 535 P2d 206 (1979). Accordingly, policies established by the State Transportation Commission must be general in nature applicable to the transportation area.

Therefore, inasmuch as the legislature may only control the manner and method by which the State Transportation Commission exercises its policymaking functions, the Legislature may not grant additional powers to the Commission which impinge upon the powers of the Director of the Department of State Transportation.

The Legislature has provided in 1964 PA 286, Sec. 7, as last amended by 1978 PA 484, MCLA 247.807; MSA 9.216(7), the following powers and duties of the State Transportation Commission:

'(1) The commission's powers and duties shall include:

'(a) The awarding of all contracts for the construction, improvement, and maintenance of the highways and transportation facilities under its jurisdiction, as provided by law.

'(b) The establishment of transportation policies for the guidance and direction of the director.

'(2) The commission may do the following:

'(a) Delegate to any member of the commission, the director, or any subordinate, any powers, other than the power to establish policy, vested in the commission as it considers necessary and proper; and permit the director to delegate any powers delegated to him or her by the commission.

'(b) Acquire, own, and hold real and personal property in the name of the state or the commission and sell, lease or otherwise dispose of, or encumber, the same in connection with, and in furtherance of, its duties and the purposes of this act.

'(c) Do anything necessary and proper to carry out the duties imposed upon it by the constitution and such other duties as may be imposed by law.'

1964 PA 286, Sec. 6a, as amended by 1978 PA 484, provides for the following authority of the Director:

'The director may do the following:

'(a) Organize the department and its work, supervise the work of the employees of the department, create, merge, and abolish organizational divisions within the department, and transfer or merge functions among those divisions in the interest of economy and efficiency.

'(b) Employ personnel necessary to carry out the duties of the director and the responsibilities of the department subject to laws government state employment.

'(c) Delegate to any employee of the department, subject to the approval of the commission, any powers vested in the director or delegated to the director by the commission.

'(d) Establish a program of current and long-range planning for the transportation systems under the department's jurisdiction.

'(e) Direct the preparation of budget requests, expenditures, programs and periodical allotments.

'(f) Purchase materials, supplies and equipment as necessary and proper to carry out the duties of the department as provided by law governing state purchasing.

'(g) Dispose of obsolete equipment, surplus supplies and material that cannot be used by the department as provided by law governing the disposal.

'(h) Do anything necessary and proper to comply fully with the provisions of present or future federal aid acts.

'(i) Do anything necessary and proper to carry out the duties imposed upon the department by the constitution and other duties as may be imposed by law.'

Prior to this amendment by 1978 PA 484, supra, this statutue provided for the following authority of the State Highway Commission which was abolished:

'(a) To organize and administer the department and its work, to supervise the work of the director and to create, merge and abolish organizational divisions within the department and to transfer or merge functions among such divisions in the interest of economy and efficiency.

'(b) To establish highway policies and administrative practices for the guidance and direction of the director.

'(c) To employ personnel necessary and proper to carry out its duties, including personnel it deems necessary for a personal staff, subject to law governing state employment.

'(d) To delegate to any member of the commission, the director, or any subordinate, any powers, other than the power to establish policy, vested in the commission as it deems necessary and proper, to permit the director to delegate any powers delegated to him by the commission.

'(e) To establish a program of current and long-range planning for the systems of highways under its jurisdiction.

'(f) To consider and study the entire field of highway legislation and administration.

'(g) To investigate highway conditions and official conduct of departmental personnel.

'(h) To direct the preparation of budget requests, expenditures programs and periodical allotments.

'(i) To acquire, own, and hold real and personal property in the name of the state or the commission and to sell, lease or otherwise dispose of or encumber the same in connection with and in furtherance of its duties and the purposes of this act.

'(j) To let all contracts for the construction, improvement and maintenance of the highways under its jurisdiction, as provided by law.

'(k) To purchase materials, supplies and equipment as necessary and proper to carry out its duties as provided by law governing state purchasing.

'(l) To dispose of obsolete equipment, surplus supplies and material that cannot be used by the department as provided by law governing such disposal.

'(m) To do anything necessary and proper to comply fully with the provisions of present or future federal aid acts.'

1964 PA 286, Sec. 7(1)(b), as amended by 1978 PA 484, supra, mandates that the policies established by the State Transportation Commission shall be for the 'guidance and direction' of the Director. This indicates the legislative intent as to the relationship that is to exist between the Director for the Department of Transportation and the State Transportation Commission with respect to the operation of the Department of Transportation and the development and implementation of public transportation programs.

However, the powers sought to be vested in the State Transportation Commission by 1964 PA 86, Sec. 7(1)(a) and (2)(b), supra, are not policy-making powers and therefore impinge upon the powers of the director in violation of the Constitution. These powers deal with the awarding of contracts and the selling, leasing or other disposition of real and personal property. These provisions, however, are severable and the remaining provisions of the statute may be implemented. See City of Pleasant Ridge v Governor, 382 Mich 225; 169 NW2d 625 (1969).

It is, therefore, my opinion that, although the State Transportation Commission no longer has the authority or duty to administer the Department of State Transportation, it is nevertheless mandated by Const 1963, art 5, Sec. 28, supra, and 1965 PA 380, supra, to establish the transportation program objectives to be pursued by the Director of the Department of State Transportation with respect to all modes of transportation.

Frank J. Kelley

Attorney General