STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5635

January 29, 1980

CONSTITUTION OF MICHIGAN:

Art 9, Sec. 29 (state mandated costs)

SCHOOLS AND SCHOOL DISTRICTS:

State mandated lunch and breakfast programs

Boards of education of K-12 school districts may not decline to provide a hot lunch program for its pupils on the ground that the State may not have reimbursed them fully for the cost of implementing the program incurred prior to December 22, 1978.

Boards of education of K-12 school districts are required to provide a breakfast program for pupils in its schools since the Legislature has appropriated monies to reimburse the school districts for the costs thereof.

Honorable Joseph S. Mack

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on the following question:

The School Code of 1976, 1976 PA 451; MCLA 380.1 et seq; MSA 15.4001 et seq, was amended by 1977 PA 43 to add section 1272a, which provides:

1977 PA 43 became effective on June 29, 1977.

1977 PA 43 also amended the school Code of 1976, supra, to add section 1272d(f), which, in pertinent part, provides:

The School Code of 1976, Secs. 1272a and 1272d(f), supra, must be read together and meaning given to both. Board of Education of Presque Isle Township School District No. 8 v Presque Isle County Board of Education, 357 Mich 148; 97 NW2d 734 (1959). The board of education of a K to 12 school district is required, beginning October 1, 1978, to establish and operate a program to provide lunch to all full-time pupils enrolled in regular daily attendance in each public school of the district. The requirement ⁽¹⁾ imposed by the School Code of 1976, Sec. 1272(1)(a) is not conditioned upon receipt of reimbursement by the state.

Beginning October 1, 1979 for the school year 1979-80, such board of education is required to establish and operate a program under which breakfast shall be made available to such full-time pupils where 50 percent of the lunches served in the 1978-79 school year were free or reduced price lunches provided pursuant to the School Code of 1976, Sec. 1272b(c).

Const 1963, art 9, Sec. 29 was ratified by the people at the general election on November 7, 1978. In pertinent part, it provides:

This constitutional provision became effective on December 22, 1978. Const 1963, art 12, Sec. 2. It was proposed as part of an initiative petition purporting to amend Const 1963, art 9, Sec. 6 and to add Const 1963, art 9, Sec. 23-34. Const 1963, art 9, Sec. 34 authorized the legislature to implement art 9, Secs. 25 through 33. These constitutional provisions do not have retroactive effect. Toole v State Board of Dentistry, 300 Mich 180; 1 NW2d 502 (1942).

Thus, any new activity or service or increase in the level of any activity or service required to be provided by a board of education for K to 12 school districts by existing law in effect prior to midnight on December 22, 1978 may, but need not be, financed by the legislature before the local unit of government is obligated to provide the same.

A school district is a local government unit within the purview of Const 1963, art 9, Sec. 29, by virtue of the express definition, including school districts, contained in Const 1963, art 9, Sec. 33. The obligation of a board of education of a K to 12 school district to establish and operate a lunch program for all full-time pupils at each public school of the district was operative on June 29, 1977 prior to the time that the people ratified Const 1963, art 9, Sec. 29. The equipment which was installed to make the program operative is not an obligation of the state by virtue of Const 1963, art 9, Sec. 29.

The breakfast program was not mandated by the School Code of 1976, Sec. 1272a(2), supra, until October 1, 1979. While the duty imposed by the School Code of 1976, Sec. 1272a(2) became operative after Const 1963, art 9, Sec. 29 took effect, the legislature has explicitly provided in the School Code of 1976, Sec. 1272d(f) that the requirements of establishing and providing a breakfast program shall not apply unless reimbursement for 100 percent of the cost of the program, as determined by the legislature upon the recommendation of the Department of Education, is appropriated.

It must be observed that in 1979 PA 97, Sec. 1, the legislature has appropriated the sum of $1,111,000 for the state breakfast program for the fiscal year 1979-80. The legislature, in 1979 PA 97, Sec. 38 has specified that this appropriation be paid to school districts for the breakfast program mandated by the School Code of 1976, Sec. 1272a(2), supra, for reasonable and necessary costs, including costs of certain equipment, which exceed federal reimbursements.

It is, therefore, my opinion that the board of education of a K to 12 school district may not decline to provide a hot lunch program for its pupils in each school because the state may not have reimbursed them fully for the cost of implementing the program incurred prior to December 22, 1978.

It is further my opinion that a board of education of a K to 12 school district is required to provide a breakfast program in its schools since the legislature has appropriated moneys to reimburse the school district for the costs thereof.

Frank J. Kelley