STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5667

March 6, 1980

CONSTITUTIONAL LAW:

Const 1963, art 9, Sec. 29

Cost of new activity or service

SCHOOLS AND SCHOOL DISTRICTS:

Instruction in cardio-pulmonary resuscitation

In the event that the Legislature were to impose a duty upon a school district to provide instruction in cardio-pulmonary resuscitation as a part of the health education course and were to appropriate funds to pay for substitute teachers while school teachers receive necessary training, const 1963, art 9, Sec. 29 would not require the state to pay a pro rata share of an instructor's salary and fringe benefits for providing such instruction.

Honorable Dominic J. Jacobetti

Honorable Perry Bullard

State Representatives

State Capitol

Lansing, Michigan 48909

You have requested my opinion relative to whether House Bill 4349, ^(a1) which would amend the School Code of 1976, 1976 PA 451, Sec. 1502, MCLA 380.1502; MSA 15.41502, by requiring school districts to offer instruction to students in cardio-pulmonary resuscitation, complies with the state financing mandate of Const 1963, art 9, Sec. 29.

As you know, on November 7, 1978, the voters of this state adopted a ballot proposal which, in part, amended Const 1963, art 9, by adding Secs. 25-34 thereto, effective on December 23, 1978. Pertinent to your inquiry is the following language of Const 1963, art 9, Secs. 29 and 33:

We are unaware of any Michigan court having addressed itself to interpreting the above sections, nor has our research disclosed any similar constitutional provisions which have been interpreted by the appellate courts of other states. However, in applying Const 1963, art 9, Sec. 29, it is evident from the plain language thereof that any new or expanded activity required of local government by the state must be examined to determine whether the same will involve any 'necessary increased costs', and if so, the state must disburse sufficient funds to defray those costs.

1976 PA 451, Sec. 1502, supra, presently states:

House Bill 4349 would amend the foregoing statute by adding a requirement that as a part of a school's health and physical eduction program, students in grades 10, 11 or 12 be offered instruction in cardio-pulmonary resuscitation, subsection (2). Further, the bill would prohibit schools from employing a person solely for the purpose of providing such instruction. Rather, only an existing school employee or a volunteer may do so, subsection (3). In the event that a school employee is designated as the instructor, provision is made for the state to pay the school the cost of employing a substitute teacher while the regular employee is trained as a cardio-pulmonary resuscitation instructor, subsection (6). Moreover, the bill would require the state to pay the cost of purchasing cardio-pulmonary resuscitation mannequins for the schools, subsection (7).

Based upon the provisions of House Bill 4349 that the state pay the costs of employing substitute teachers and for the purchase of mannequins, you have expressed the opinion that the state financing mandate of Const 1963, art 9, Sec. 29, would be satisfied. However, you indicate that certain members of the House Appropriations Committee have expressed concern that the state might also be obligated to pay a prorata share of the instructor's total salary or fringe benefits for the time given to cardio-pulmonary resuscitation instruction.

At this juncture, it is important to note that the School Code of 1976, including Sec. 1502 thereof, was signed into law by the Governor and given immediate effect on January 13, 1977, nearly two years prior to the effective date of const 1963, art 9, Sec. 29. Further, it must be observed that the requirement of House Bill 4349 that schools offer students instruction in cardio-pulmonary resuscitation would logically involve health education within the meaning of Sec. 1502.

Hence, in order to satisfy the financing mandate of Const 1963, art 9, Sec. 29, the state must pay any 'necessary increased costs' associated with the implementation of House Bill 4349, above those costs which would otherwise be borne by the school districts while providing health education to students in accordance with Sec. 1502.

Viewing the provisions of House Bill 4349 in light of Const 1963, art 9, Sec. 29, and the previously existing health education requirement of Sec. 1502 of the School Code of 1976, it is apparent that school districts would not necessarily incur any increased costs for compensating employees during the performance of cardio-pulmonary resuscitation instruction. Therefore, it is my opinion that Const 1963, art 9, Sec. 29 would not require the state to pay a pro rata share of an instructor's salary and fringe benefits for the time given to such instruction in the event the Legislature were to impose a duty upon a school district to provide cardio-pulmonary resuscitation instruction.

Frank J. Kelley