[ Previous Page]  [ Home Page ]

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)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5750

July 29, 1980

CORPORATIONS:

Formation of a nonprofit corporation to provide certain public law enforcement services

COUNTIES:

Intergovernmental agreements

Authority to form private nonprofit corporation to provide police services

A county may join with one or more other counties to provide police investigation services to assist the prosecuting attorneys and the sheriffs in such counties.

A county may not join in the formation of a nonprofit corporation to provide police investigative services as a means of implementing interlocal governmental efforts.

Colonel Gerald Hough

Director

Michigan State Police

714 S. Harrison Road

East Lansing, Michigan 48823

You have asked for my opinion on the following questions:

1. Whether counties may join together to provide a crime scene investigator/technician to render specialized police services for the participating counties?

2. Whether counties may provide these investigation services by forming and belonging to a nonprofit corporation which pays for an investigator/technician to provide these services?

Cooperative efforts among units of local government are encouraged by Const 1963, art 7, Sec. 28, which provides in part:

'The legislature by general law shall authorize two or more counties, townships, cities, villages or districts, or any combination thereof among other things to: enter into contractual undertakings or agreements with one another or with the state or with any combination thereof for the joint administration of any of the functions or powers which each would have the power to perform separately; share the costs and responsibilities of functions and services with one another or with the state or with any combination thereof which each would have the power to perform separately; transfer functions or responsibilities to one another or any combination thereof upon the consent of each unit involved; cooperate with one another and with state government; lend their credit to one another or any combination thereof as provided by law in connection with any authorized publicly owned undertaking.'

Since this is a new provision in the 1963 Constitution, it is appropriate to consult the Address to the People for the Convention Comment explaining the addition of this new provision to the new Constitution. Burdick v Secretary of State, 373 Mich 578; 130 NW2d 380 (1964). That Convention Comment, in pertinent part, states:

'This is a new section designed to encourage the solution of metropolitan problems through existing units of government rather than by creating a fourth layer of local government. Local governments are allowed to join in a variety of ways to work out together the solutions to their joint problems.

'This is to be done by agreement of the units of government involved and no unit will be compelled to enter into any agreement. Possible abuses are prevented by providing overall control by general acts of the legislature.' [Emphasis added.]

2 Official Record, Constitutional Convention 1961, p 3394.

This provision has been implemented by 1967 Ex Ses PA 7; MCLA 124.501 et seq; MSA 5.4088(1) et seq, known as the Urban Cooperation Act of 1967, which regulates interlocal agreements between public bodies; by 1967 Ex Sess PA 8; MCLA 124.531 et seq; MSA 5.4087(1) et seq, which provides for intergovernmental transfers of functions and responsibilities; and 1967 PA 236; MCLA 123.811 et seq; MSA 5.3323(1) et seq, which authorizes counties and other local units of government to enter into agreements for mutual police assistance.

Counties are permitted to join together for the provision of police services by 1967 PA 236, Sec. 4, supra, as amended by 1974 PA 342, which states:

'Two or more counties, cities, villages, or townships adjacent to each other may join together, by contract or by the establishment of an intermunicipal police authority, for the purposes of providing police services to the respective counties, cities, villages, and townships. The contracts or intermunicipal police authorities shall be approved by the governing bodies of the counties, cities, villages, and townships; shall be administered by a commission established in accordance with the agreement; and shall contain provisions relative to apportionment of the costs of the service among the counties, cities, villages, or townships making the agreements.'

This statute was construed in OAG, 1977-1978, No 5158, p 176 (July 19, 1977) to authorize two or more local units of government to provide police services to the local units.

Thus, two or more counties are authorized to join with one another to provide police investigation services to assist the prosecuting attorneys and sheriffs in such counties. Since the office of county sheriff is provided for by Const 1963, art 7, Sec. 4, the investigative services which are provided should augment, rather than replace, the law enforcement activities of the county sheriff. OAG, 1977-1978, No 5312, p 476 (June 14, 1978) held that municipal corporations when are governed by the same zoning law could delegate certain administrative functions associated with zoning to a joint public agency created pursuant to 1967 Ex Sess PA 7 and 8, supra, but the legislative power to zone land could not be delegated.

It is my opinion, therefore, that a county may join with one or more other counties to provide police investigation services to assist prosecuting attorneys and sheriffs in such counties.

Turning to your second question as to whether nonprofit corporations may be formed by counties as the sole members thereof as a means of providing these investigation services, the answer requires consideration of the nature and scope of these corporations. Nonprofit corporations may be formed under the general corporation act, 1931 PA 327, Sec. 117, as amended; MCLA 450.117; MSA 21.118.

Nonprofit corporations are private legal entities which operate in the nongovernmental, private sector. While nonprofit corporations often provide a variety of services to government and the public, the rendering of such services does not convert a nonprofit corporation into a public entity. Similarly, it has been noted that:

'The character of a corporation as public or private is determined by the terms of its charter and the general law under which it was organized and not upon the character of its stockholders. . . .' 18 Am Jur 2d, Corporations, Sec. 8, p 554. [Footnotes omitted.]

The legislature has authorized the formation of certain public legal entities and the utilization of various intergovernmental contracts to facilitate joint governmental efforts for the furnishing of various services, including police services. The three statutes cited above, all adopted since 1964, are specifically tailored to meet the needs of local units of government and contain safeguard against possible abuses. The enumeration of powers to counties to enter the interlocal agreements must be deemed to exclude all others of a similar nature in that same field. Sebewaing Industries, Inc v Village of Sebewaing, 337 Mich 530; 60 NW2d 444 (1953). Thus, the legislature did not intent to authorize such intergovernmental undertakings through nonprofit corporations.

It is, therefore, my opinion that nonprofit corporations may not be used by counties as a means of implementing interlocal governmental efforts in lieu of the statutes specifically regulating such activities which are cited above.

Frank J. Kelley

Attorney General


[ Previous Page]  [ Home Page ]