STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5738

July 14, 1980

SCHOOLS AND SCHOOL DISTRICTS:

Vote required for board of education to take action

Veto power of president of board of education

The board of education of a second class school district is without authority to require that certain policies or bylaws of the board may only be altered by a favorable vote of two-thirds of the board members.

The board of education of a second class school district may not grant veto powers to the president of the board.

Honorable David Hollister

State Representative

State Capitol

Lansing, Michigan

Dear Representative Hollister:

You have requested my opinion on two questions which may be phrased as follows:

Boards of education have only such powers as the legislature confers upon them either expressly or by reasonably necessary implication. Senghas v L'Anse Creuse Public Schools, 368 Mich 557; 118 NW2d 975 (1962); Jacox v Board of Education of Van Buren Consolidated School District, 293 Mich 126; 291 NW 241 (1940). Therefore, the power of a board of education to act in the manner in question must be found explicitly or by reasonably necessary implication in the statutes.

In the School Code of 1976, 1976 PA 451; MCLA 380.1 et seq; MSA 15.4001 et seq, Sec. 301, the Legislature has provided:

In part 5 of the School Code of 1976, supra, dealing with school districts of the second class, the Legislature has provided, in only three separate instances, that the board of education of a second class school distrcit may act only by a vote of two-thirds of its members. See the School Code of 1976, supra, Secs. 325(2), 331(1), and 341(2) which respectively deal with removing board members, acquiring land outside the school district and borrowing moneys, in an emergency, from the insurance reserve fund.

In article 2 of the School Code of 1976, supra, Sec. 1201(1), the legislature has provided that '. . . [a]n act of the board shall not be valid unless voted at a meeting by a majority vote of the members elected to and serving on the board and a proper record made of the vote.' Thus, the Legislature has established the general rule, subject to express statutory exceptions, noted in 1976 PA 451, Secs. 325(2), 331(1) and 341(2), supra, that a board of education of a second class school district acts by a majority vote of its members elected to and serving on the board.

Therefore, in answer to your first question, it is my opinion that the board of education of a second class school district may not, by majority vote of its members elected to and serving on the board, adopt a requirement that certain board policies or the bylaws of the board may only be altered by a vote of two-thirds of the board members.

Turning to your second question, the School Code of 1976, supra, Sec. 317 provides for the office of president of the board of education of a second class school district. No provision of the School Code of 1976, supra, grants veto power to the president of a board of education of a school district of the second class.

Therefore, in answer to your second question, it is my opinion that a board of education of a second class school district may not, by a majority vote of its members, grant a veto power to the president of the board of education

Frank J. Kelley