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. 5590 November 7, 1979 HIGHWAYS AND ROADS: Emergency conditions HIGHWAYS AND ROADS: Compliance by United States postal employees with Michigan law governing use of highways WORDS AND PHRASES: 'Red alert' A United States postal employee en route to or from his or her work station is required to comply with Michigan law governing the use of its highways. A United States postal employee while en route to his or her work station is required to comply with emergency procedures for road closures of state highways adopted by the Department of Transportation and the Department of State Police pursuant to section 497 of the Michigan Penal Code. Senator Jack Faxon The Senate Lansing, Michigan 48909 You have presented the following information: 'I have been contacted by the National Association of Letter Carriers regarding a problem which they have encountered as a result of a 'Red Alert' declared by the Governor January 28, 1978. During that alert persons were ordered to remain off the streets except for emergency purposes. The association informed me that post office officials required employees to ignore the Orders of the Governor and told employees that post office officials would inform employees when to stay home. As a result, several mail carriers were issued citations by the police while en route to work at the post office, and post officials did nothing to aid its employees who were cited.' Based upon this information, you have requested my opinion on the following questions: 1. What is a 'red alert'? 2. What roads are included in an order declaring a 'red alert' and commanding citizens to remain off the roads? 3. Are United States Postal Service employees subject to and included in such a 'red alert' order issued by the Governor while they are engaged in official post office duties or traveling to and from the post office for the purpose of performing those duties? Your questions will be addressed seriatim. Section 497 of the Michigan Penal Code, 1931 PA 328; MCLA 750.497; MSA 28.765 states: 'Whenever in the opinion of the state highway commissioner (1) a condition arises or is about to arise upon any of the highways of the state occasioned by the condition of said highway or by any approaching public gathering likely to bring unusual congestion of traffic thereon, and the public safety of persons using or about to use said highway is put in jeopardy, the state highway commissioner is hereby authorized by an appropriate order, to detour the traffic from or upon, provide the direction of any or all traffic, close to any or all traffic, or limit the traffic on said highway to certain classes of vehicles, under such conditions as he may in such order provide on any of the highways of the State of Michigan for such length of time as he may deem necessary. 'Whenever the state highway commissioner shall make any order in any way regulating or closing traffic on any highways of this state under the authority of this section, he shall cause to be posted upon said highway in conspicuous places at each terminal of the restricted or closed highway, conspicuous notices of such regulations or closing order. 'Any person violating any of the provisions of said order, or using said highway in any manner prohibited in said order after and during the time that notices of said order shall be properly posted as herein provided, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than 10 dollars or by imprisonment in the county jail for not more than 10 days, or by both such fine and imprisonment in the discretion of the court. Pursuant to 193 PA 328, Sec. 497, supra, the Department of Transportation, in conjunction with the Department of State Police, has developed emergency procedures for closing certain roads because of accidents or severe weather. These procedures are codified in a publication entitled Emergency Procedures for Road Closures of State Highways and Limited Access Freeway Systems. (2) The purpose of this emergency procedure is stated in the above publication at page one: 'The problems of major traffic tie-ups resulting from accidents completely blocking the roadways during heavy traffic periods, and severe weather conditions slowing or stopping traffic requires close coordination between all law enforcement agencies and highway maintenance agencies. In severe snow storms with heavy drifting conditions, many motorists become stranded when maintenance crews are unable to maintain one lane for travel. Some of the major problems may be alleviated by an advance warning system to alert and warn the public on affected areas. The purpose and intent of this emergency plan is to provide the necessary authority, coordination, and direction for a temporary closure under police authority and/or an official road closure of major section(s) of the state road system within an area seriously affected by a catastrophe, or severe weather conditions. Detouring traffic from the state highway system requires close coordination between all law enforcement agencies and designated highway officials. All Sheriff Departments selected Township Police Departments and City Police Departments have been advised to coordinate with nearest State Police Post. The Department of State Police is responsible for advising and coordinating with designated State Highway and Transportation officials on actions taken affecting the highway system.' Thus the term 'red alert' refers to a road condition coding designation utilized by the Department of Transportation and State Police. In fact, there are three such conditions: condition yellow; condition red alert; and condition red. The publication on Emergency Procedures for Road Closures, supra, enumerates the condition coding designations along with the effects of each: 1. 'CONDITION YELLOW' Roads snow/ice covered, hazardous driving conditions, with traffic moving at reduced speed. Drivers to be urged to use caution. 2. 'CONDITION RED ALERT' Road conditions hazardous, heavy snow and severe drifting problems, with occasional stalled vehicle. Limited access roads in fair condition with other primary and secondary roads becoming plugged with storm expected to continue with increasing drifting problems stalling traffic. Motorists urged to curtail driving unless of an emergency requirement. 3. 'CONDITION RED' Severe conditions on freeways with one lane open for traffic. Majority of other primary and secondary roads are temporarily closed. Traffic stalling in some areas with storm progressively worse and expected to continue, with high probability entire road system will ultimately be blocked. Motorists to be urged to stay out of area(s). A 'red alert' was not ordered by the Governor on January 28, 1978. The term 'red alert' is merely an administrative designation which the Department of Transportation and Department of State Police use. The Governor did, on January 26, 1978, issue a proclamation and an executive order concerning the severe snowstorm conditions, which proclaimed a state of disaster in Michigan. But these did not initate any of the three condition coding designations described above, since such a determination rests within the discretion of the Department of Transportation and Department of State Police. 2. What roads are included in an order declaring a 'red alert' and commanding citizens to remain off the roads? 1931 PA 328, Sec. 497, supra, gives authority to the Department of Transportation to detour traffic on 'any of the highways of the State of Michigan for such length of time as he may deem necessary' (3) (emphasis added). Therefore, a road condition designation such as 'condition red alert' could apply to all state highways. 3. Are United States Postal Service employees subject to and included in such a 'red alert' order issued by the Governor while they are engaged in official post office duties or traveling to and from the post office for the purpose of performing those duties? You have related that the United States postal employees were issued citations by the police while enroute. (4) 1931 PA 328, Sec. 497, supra, states: 'Any person viloating any of the provisions of said order, or using said highway in any manner prohibited in said order after and during the time that notices of said order shall be properly posted as herein provided, shall be deemed guilty of a misdemeanor. . . .' It is therefore my opinion that a United States Postal Office employee en route to or from his or her work station is subject to the provisions of Michigan law governing the use of its highways. Frank J. Kelley Attorney General (1)
(2)
Section 7(e) MAPA, 1969 PA 306; MCLA 24.207(e); MSA 3.560(107), excludes from the definition of 'rule' [a] rule relating to the use of streets or highways the substance of which is indicated to the public by means of signs or signals. It was therefore unnecessary to follow rulemaking procedures of MAPA.(3)
The Emergency Procedures for Road Closures of the State Highways and Limited Access Freeway Systems is by its own terms limited to state highways.(4)
This opinion does not address the question of whether a federal employee performing his or her public duties may be issued a citation. See Johnnson v Maryland, 254 US 51; 41 S Ct 532; 65 L Ed 126 (1920).