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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)



Opinion No. 5639

January 31, 1980


Delegation of authority


Delegation of authority


Delegation of authority

The Barrier Free Design Board may not delegate discretionary authority granted to it by statute.

Honorable Jelt Sietsema

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the following questions:

1. May the barrier free design board delegate any or all of the authority granted to it under 1966 PA 1, as amended?

2. If a delegation of powers is permissible, what, if any, are the limitations to the delegation of powers and duties ascribed to the board by said act?

1966 PA 1, as last amended by 1978 PA 363, MCLA 125.1351 et seq; MSA 3.447(121) et seq, establishes and provides for the powers and duties of the Barrier Free Design Board. 1966 PA 1, supra, Sec. 5(6) provides:

'The board may perform the following:

'(a) Receive, review, process, grant, or deny requests for exceptions to the barrier free design requirements contained in Act No. 230 of the Public Acts of 1972, as amended, being sections 125.1501 to 125.1531 of the Michigan Compiled Laws, or rules promulgated under Act No. 230 of the Public Acts of 1972, as amended. The power to grant exceptions shall include the power to grant an exception to any or all of the barrier free design requirements contained in Act No. 230 of the Public Acts of 1972, as amended, for a stated time period and upon stated conditions.

'(b) Require alternatives when exceptions are granted.

'(c) Receive, process, review, and act on complaints of noncompliance.'

On June 10, 1977, the board approved the following resolution:

'MR. BARNETT MOVED, second by Mr. Granger and Mr. Schwartz, to grant the following authority: The Office of the Director of the Bureau of Construction Codes may approve a request for exception when the facts involved are substantially similar to a case or cases in which the Board has previously granted an exception and where it is clear that such an exception is consistent with prior Board policy and where no new facts appear which would offset the underlying rationale of prior cases.'

With respect to your first question, it is to be noted that the powers of administrative agencies, boards, and commissions are limited by the statutes creating them to such powers as are conferred expressly or by necessary or fair implication. Coffman v State Board of Examiners in Optometry, 331 Mich 582; 50 NW2d 322 (1951).

Further, administrative agencies may not delegate the exercise of discretionary acts unless they have been granted legislative authority so to do. Detroit Edison Company v Corporation & Securities Commission, 361 Mich 150; 105 NW2d 110 (1960). However, a distinction is made between the exercise of ministerial duties, which may be delegated to subordinates within specific statutory authority.

OAG, 1965-1966, No 4479A, p 262, 272 (May 2, 1966), states:

'The rules of delegability or non-delegability of authority as developed in the law relating to the relationship of principal and agent have been applied by the courts in substantially the same manner under administrative law to administrative officers and administrative agencies. A summary from adjudicated cases appears in a leading text in these words:

"It is a general principle of law, expressed in the maxim 'delegatus non potest delegare,' that a delegated power may not be further delegated by the person to whom such power is delegated, and that in all cases of delegated authority, where personal trust or confidence is reposed in the agent and especially where the exercise and application of the power is made subject to his judgment or discretion, the authority is purely personal and cannot be delegated to another unless there is a special power of substitution either express or necessarily implied. Accordingly, apart from statute, whether administrative officers in whom certain powers are vested or upon whom certain duties are imposed may deputize others to exercise such powers or perform such duties usually depends upon whether the particular act or duty sought to be delegated is ministerial, on the one hand, or, on the other, discretionary or quasi-judicial. Merely administrative and ministerial functions may be delegated to assistants whose employment is authorized, but there is no authority to delegate acts discretionary or quasi-judicial in nature.'

"A commission, charged by law with power to promulgate rules, cannot, in turn delegate that power to another." (1)

In OAG, 1965-1966, No 4532, p 320 (June 21, 1966), it was held that members of the wage deviation board, who are vested with duties requiring the exercise of judgment and discretion, may not indulge in the practice of voting by proxy because such duties are non-delegable.

Inasmuch as 1966 PA 1, supra, Sec. 5(6) expressly empowers the board alone to grant or deny requests for exceptions to the barrier free design requirements contained in the state construction code, it is my opinion that it may not subdelegate such discretionary authority.

With respect to your second question, as discussed in my response to your first question, ministerial functions may be delegated to those persons whose employment is authorized. Therefore, it is my opinion that the barrier free design board may only delegate such ministerial duties as receiving and processing requests for exceptions to barrier free design requirements and receiving and processing complaints of non-compliance.

Frank J. Kelley

Attorney General

(1) See 2 Am. Jr., 2d, Administrative Law, Sec. 222 and the cases collected in the applicable footnotes.


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