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. 5591

November 13, 1979

OFFICERS & EMPLOYEES:

Authority of director of state department to prohibit members of department from attending certain conventions, conferences or seminars

DEPARTMENT OF COMMERCE:

Authority of director to prohibit members of department from attending certain conventions, conferences or seminars

EQUAL RIGHTS AMENDMENT:

Authority of director of commerce to prohibit members of his department from attending conventions, conferences or seminars in a state which has not ratified

Although the Director of the Department of Commerce may establish a travel policy for all members of his department to the extent that the policy does not interfere with the powers, duties and functions which may be exercised by an agency independent of the department, the director may not use a state's failure to ratify the Equal Rights Amendment as a criterion for prohibiting members of his department from attending a job-related convention, conference or seminar in the state.

Honorable David C. Hollister

State Representative

The Capitol

Lansing, Michigan 48909

You have asked my opinion on a matter which may be stated as follows:

May the Director of the State Department of Commerce prohibit members of his department from attending any job-related conventions, conferences, or seminars in any state which has not ratified the Equal Rights Amendment, unless such non-attendance would have a serious effect on the State of Michigan?

This travel restriction for certain state employees was precipitated by a May 17, 1978 resolution of the Michigan Women's Commission to join with other organizations in support of the economic boycott of states which had not ratified the Equal Rights Amendment. This resolution urged the Governor to limit the travel of all state employees to unratified states whenever the direct interest of the State of Michigan would not be jeopardized.

The Governor in a July 20, 1978 letter responded that he could not support an economic boycott nor ask state officials to endorse such a boycott as state officials inasmuch as it might conflict with state business and the welfare of the people of Michigan.

However, the Director of the State Department of Commerce in a June 30, 1978 memorandum to bureau directors within his department directed that, 'in a spirit of cooperation with the [Michigan] Women's Commission,' state travel requests be reviewed utilizing the criteria of the Michigan Women's Commission. He included with his memorandum earlier correspondence with the Michigan Women's Commission which listed those states which had not ratified the Equal Rights Amendment.

Const 1963, art 11, Sec. 5 provides, in part:

'The [civil service] commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service.' [Emphasis added]

Pursuant to this constitutional mandate, the Civil Service Commission and the Department of Management and Budget (pursuant to 1948 PA 51, MCLA 18.1 et seq; MSA 3.516(1) et seq) adopted the Standardized Travel Regulations which state at section 2.1:

'All travel must be authorized and approved by the head of the agency or his designated representative; except that no designated representative may approve his own voucher.'

OAG, 1965-1966, No 4479, p 209, 215 (March 9, 1966), interpreted the effect of the Executive Organization Act of 1965, 1965 PA 380, MCLA 16.101 et seq; MSA 3.29(1) et seq, on various state agencies and concluded:

'By way of summary, a Type I transfer under the Executive organization act of 1965 places the board, office, commission or agency intact within the principal department to which it has been transferred. Under the Act each board, office, commission or agency having a Type I transfer is subject to having its policy determinations and its functions administered under the supervision of the principal department head except those policy determinations and functions which may be exercised independently within the authority of the third sentence of Section 3(a) of the Act. The statutory powers, duties and functions which may be exercised independently of the department head pursuant to the legislative directive of the third sentence of Section 3(a) of the Act are retained and may be performed by the transferred agency without interference or supervision by the head of the department. . . .' [Emphasis added]

OAG, 1965-1966, No 4479A, p 262, 270 (May 2, 1966), stated that a Type II transfer of an agency places its powers and duties in the principal department without limitation or restriction.

Thus, the Director of the Department of Commerce may set a travel policy for all members of his department to the extent that it does not interfere with the powers, duties, and functions which may be exercised by an agency independent of the department.

However, the Commerce Director's power to establish travel policy for his department is not limitless. In Sittler v Board of Control of Michigan College of Mining & Technology, 333 Mich 681, 687; 53 NW2d 681 (1952), the Michigan Supreme Court defined the scope of a public officer's authority:

'The extent of the authority of the people's public agents is measured by the statute from which they derive their authority, not by their own acts and assumption of authority. Township of Lake v Milar, 257 Mich 135, 132.'

Coffman v State Board of Examiners, 331 Mich 582, 590; 50 NW2d 322 (1951), determined the extent to which a public officer's powers may be implied and quoted the following from 42 Am Jur, Sec. 26, p 316 et seq:

"Administrative boards, commissions, and officers have no common-law powers. Their powers are limited by the statutes creating them to those conferred expressly or by necessary or fair implication. In determining whether a board or commission has a certain power, the authority given should be liberally construed in light of the purposes for which it was created and that which is incidentally necessary to a full exposition of the legislative intent should be upheld as being germane to the law. Implication of necessary powers may be especially appropriate in the field of internal administration. However, powers should not be extended by implication beyond what may be necessary for their just and reasonable execution." [Emphasis added]

In Davidson v Johnson, 79 Mich App 660, 664-665; 262 NW2d 887 (1977), the Court of Appeals, in holding that the Legislature never authorized the Insurance Commissioner to increase the statutorily-authorized deductible under the no-fault automobile insurance act, adopted the following statement with respect to legislative delegation of powers:

'Callaghan's Michigan Pleading and Practice, Vol 8, Sec. 60.13, pp 106-107, contains the following discussion of the rule:

"60.13.--Delimitation of Conferred Powers. It is for the legislative body, in delegating powers to an administrative agency, to determine and declare just what powers are delegated and the circumstances in which any delegated power is to be exercised. Accordingly, a statute conferring authority upon an agency must clearly define the power or powers conferred, and must, directly or impliedly, fix conditions upon which the delegated authority shall become operative and prescribe definite legal limits upon the exercise thereof.' (Emphasis added.)'

1965 PA 380, Sec. 225 et seq, MCLA 16.325 et seq; MSA 3.29(225) et seq, created a Department of Commerce, established a Director as head of the Department, and transferred various agencies and selected powers and duties of other agencies into the Department. The agencies transferred include: the Department of State Banking, the Department of Insurance, the State Liquor Control Commission, the Public Service Commission, the Department of Economic Expansion, the Aeronautics Department and Commission, and the Corporations and Securities Commission.

Without enumerating the duties and functions of the agencies transferred, it is apparent that the Director's decision to prohibit members of his department from attending any job-related conventions in any State which has not ratified the Equal Rights Amendment was not made in furtherance of his statutory duties and obligations, but rather on a personal belief that the Equal Rights Amendment should be ratified by the remaining States required for its adoption as part of the United States Constitution. Although a laudatory purpose, nonetheless, the Director of the Department of Commerce may not extend his authority beyond that granted by statute in order to fulfill his public responsibilities.

It is, therefore, my opinion that the Director of the State Department of Commerce may not use a State's failure to ratify the Equal Rights Amendment as a criterion for prohibiting members of his department from attending any job-related conventions, conferences or seminars in the State.

Frank J. Kelley

Attorney General