STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5648

February 8, 1980

LIBRARIES:

Eligibility of city library for state aid and penal fines Authority of library board to retain an attorney for collection purposes

CITIES:

Control of city library funds and operation of library

A city library operating pursuant to a city ordinance and participating in a cooperative library is eligible for state aid to libraries and is eligible to receive penal fines.

Where a city library operates under a city ordinance, the city council possesses such authority over the library board and funds as is provided in the library ordinance.

A city library board must utilize the services of the city attorney to collect unpaid library service accounts.

Honorable Ralph Ostling

State Representative, 103rd District

The Capitol

Lansing, MI 48909

In reference to the City of Reed City Public Library, you have requested my opinion on three questions which may be phrased as follows:

Your questions will be answered seriatim.

The City of Reed City, a home rule city, on October 6, 1958, adopted an ordinance providing that the City shall maintain a free public library (the 'Library Ordinance'). Prior to adoption of the Library Ordinance, materials you enclosed with your request indicate that the former public library, established in the 1890's, was not officially maintained by the City. The Library Ordinance was adopted pursuant to the Reed City Charter, Secs. 2.2, 2.4, and 4.1, as authorized by the home rule cities act, 1909 PA 279, Sec. 4e(1) and (3); MCLA 117.4e(1) and (3); MSA 5.2078(1) and (3), which provides that a home rule city may acquire and maintain a public library. ⁽²⁾ Cf. Detroit Police Officers Association v City of Detroit, 391 Mich 44, 66; 214 NW2d 803, 814 (1974).

(1) Is the city library eligible to receive state library funds if it is not organized under 1877 PA 164?

The State Aid to Public Libraries Act, 1977 PA 89; MCLA 397.551 et seq; MSA 15.1791(151) et seq, authorizes the formation of cooperative libraries to provide services and prescribes conditions for receipt of state paid; OAG, 1977-1978, No 5367, p ___ (August 29, 1978). The Reed City Library is a 'public library' under 1977 PA 89, supra, Sec. 2(c), and as a member of the Mid-Michigan Library League (a cooperative library under 1977 PA 89, supra, Sec. 6), the Reed City Library as a participating library is eligible for state aid as prescribed by 1977 PA 89, supra, Sec. 16. No provision of 1977 PA 89, supra, restricts eligibility for state aid to libraries organized under 1877 PA 164, supra. The only requirement is that it be lawfully established for free public library purposes. 1977 PA 89, supra, Sec. 2.

The support of libraries by penal fines act, 1964 PA 59, MCLA 397.31 et seq; MSA 15.1793(1) et seq, declares, in section 1(a), that a free public library in a city is a 'public library' under the act. ⁽³⁾ 1964 PA 59, supra, Sec. 2 provides all penal fines collected in a county are to be apportioned each year by the county treasurer among public libraries within the county, pursuant to section 8. The Reed City Public Library is eligible for the receipt of penal fines pursuant to 1964 PA 59, supra.

It is, therefore, my opinion that the Reed City Library is eligible to receive library funds provided by state aid and penal fines.

(2) Does the city council possess authority over the library board and library funds?

The Reed City council authorized maintenance of the Reed City Public Library pursuant to the Library Ordinance. The Library Ordinance, section 1, provides that the City Council 'shall include in the annual budget such sum as may be deemed necessary for the purpose of maintaining' the library with the amount so appropriated known as the 'Library Fund.' Section 2 of the Library Ordinance provides that the five members of the library board shall be appointed by the council. Section 4 of the Library Ordinance provides that expenditures by the library board 'except from State Aid funds and funds given in trust for special purposes, shall be limited to the amoung appropriated by the City Council for library purposes.' Section 6 of the Library Ordinance provides that following approval of the library budget as estimated by the library board, 'the Council shall levy such tax as may be necessary to meet the budget appropriation for library purposes.' Further, the library board shall not expend a greater amount than appropriated by the city council, unless additional expenditures are authorized by resolution of the council.

While the provisions of the Library Ordinance repose in the city council extensive authority with respect to the library's annual budget, section 4 of the Library Ordinance vests in the library board administrative control and governance of the public library. The library board is empowered to make or adopt by-laws, rules or regulations not inconsistent with state law or the city charter. Among other powers vested by section 4 of the Library Ordinance, the library board has the power to appoint a librarian, assistants, and other library employees as may be required, fix their compensation within the limits of the library budget and terminate their employment, subject to civil services rules and regulations. Further, the library board shall have the care and custody of the books, magazines, furniture, fixtures and equipment in said library. Clearly, section 4 of the Library Ordinance accords the library board broad administrative authority over the operations of the city library.

Therefore, it is my opinion that the city council possesses such authority over the library board and library funds as is, or may be, provided in the Library Ordinance.

(3) Is the library board responsible for collection on contracts for library services?

The Library Ordinance, section 4, provides the library board may 'contract with other municipalities for furnishing the use of its library facilities and services and make reasonable charges therefor; it may establish and collect fees for use of such services and facilities . . .' You advise me that several townships have contracted with the library board for provision of library services.

While the library board is empowered to enter into library services contracts, and 'collect fees' for such services, no provision of the Library Ordinance authorizes the library board to employ counsel to aid in the collection of library services contracts. The Reed City Charter, Sec. 4.1 provides the city council 'shall constitute the legislative and governing body of the city,' and the charter, Sec. 4.14, provides for the office of the city attorney who shall act as legal advisor, attorney and counsel for the city council. Charter Sec. 4.14(a) provides in pertinent part that the attorney 'shall advise any office or department head of the city in matters relating to his official duties when so requested. . . .' Further, charter Sec. 4.15 declares:

Thus, the library board, in seeking collection on contracts for library services, must refer the matter to the city attorney for action, or request city council appoint special legal counsel pursuant to charter Sec. 4.15. Unless authorized by the council, the library board possesses no authority to appoint or retain counsel; City of Flint v Board of Hospital Manages, 377 Mich 681; 142 NW2d 5 (1966); OAG, 1975-1976, No 4983, p 520 (June 25, 1976).

Therefore, it is my opinion that the library board must utilize the services of the city attorney to secure collection of unpaid library service accounts.

Frank J. Kelley