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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) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5787 September 9, 1980 GOVERNOR: Appointment of members of commission of natural resources NATURAL RESOURCES, DEPARTMENT OF: Commission approval of appointment of deputy directors The Governor is not required to appoint two members who reside in the Upper Peninsula to the Commission of Natural Resources. In the enactment of 1978 PA 223, the Legislature did not intend to re-enact 1921 PA 17, Sec. 1, to require appointment of two members residing in the Upper Peninsula to the Commission of Natural Resources. The appointment of deputy directors of the Department of Natural Resources must be approved by resolution of the Commission of Natural Resources. The Honorable Russell Hellman State Representative State Capitol Lansing, Michigan 48909 You have requested my opinion on the following questions: 1. In appointing members of the Commission of Natural Resources, is the Governor required, consistent with 1921 PA 17, Sec. 1, being MCLA 299.1; MSA 13.1, to appoint two members who reside in the Upper Peninsula? 2. Must appointment of deputy director(s) selected by the Director be formally approved by the Natural Resources Commission? Your first question refers to 1921 PA 17, Sec. 1; MCLA 299.1; MSA 13.3, which created the Department of Conservation, established a seven member Commission on Conservation as the head of the Department, and provided generally for the membership and operation of the Commission. 1921 PA 17, Sec. 1, was subsequently amended by 1929 PA 23; among the changes made by the latter act was the addition of a requirement that two of the Commissioners reside in the Upper Peninsula, a requirement retained in the present version of the act, as most recently amended by 1978 PA 223, Sec. 1. In 1965, the Legislature re-established the Department of Conservation by means of Chapter 11 of the Executive Organization Act, 1960 PA 380; MCLA 16.101 et seq; MSA 3.29(1) et seq. As originally enacted, section 254 of that Act; MCLA 16.354; MSA 3.29(254), provided: 'The commission of conservation shall consist of 5 members, not more than 3 of whom shall be members of the same political party, appointed by the governor by and with the advice and consent of the senate. The term of office of each member shall be 4 years, except that of members first appointed 2 shall be appointed for 1 year, 1 shall be appointed for 2 years, 1 shall be appointed for 3 years and 1 shall be appointed for 4 years. A member appointed to fill a vacancy occurring other than by expiration of a term shall be appointed for the unexpired term. The commission shall elect from its members such officers as it deems advisable. A majority of the commission members shall be required to constitute a quorum.' OAG, 1965-1966, No 4485, p 174, 175-176, (November 5, 1965), considered the impact of the Executive Organization Act, Sec. 254, supra, upon 1921 PA 17, Sec. 1, supra. That opinion stated: 'Sec. 1 of Act 17, P.A. 1921, as amended, being C.L.S. 1961 Sec. 299.1; M.S.A. 1958 Rev. Vol. Sec. 13.1, provides for a department of conservation to be administered by a commission of conservation composed of seven members appointed by the governor by and with the advice and consent of the senate to serve terms of six years. Two of the seven members are required to be residents of the Upper Peninsula. The statute contains no requirement that the commission be bipartisan. 'It is patent that Sec. 254 of the Executive organization act of 1965, supra, and Sec. 1 of Act 17, P.A. 1921, supra, are in conflict and cannot be harmonized [insofar as they relate to the appointment, membership and qualifications of members of the commission]. Sec. 254 of the Executive organization act of 1965, being the later enactment must control, and Sec. 1 of Act 17, P.A. 1921 supra, is repealed by implication [insofar as it relates to the appointment, tenure, membership and qualifications of members of the commission]. Southward v Wabash Railroad Co., supra, [331 Mich 138, 49 NW2d 109 (1951)]. 'Therefore, it is my opinion that the legislature has abolished the office of member of the commission of conservation created by Sec. 1 of Act 17, P.A. 1921, supra, and created the office of member of the commission of conservation in accordance with Sec. 254 of the Executive organization act of 1965, and the governor is empowered to fill such offices in accordance with the provisions of of act.' 1973 PA 35, amending 1965 PA 380, supra, Section 254, expanded the Commission from 5 to 7 members. (1) The Legislature enacted 1978 PA 223 to amend 1921 PA 17, supra, Sec. 1, by adding to Subsection (3) the following language: 'The business which the commission of natural resources may perform shall be conducted at a public meeting of the commission held in compliance with Act No. 267 of the Public Acts of 1976, being sections 15.261 to 15.275 of the Michigan Compiled Laws. Public notice of the time, date, and place of the meeting shall be given in the manner required by Act No. 267 of the Public Acts of 1976.' Admittedly, in amending Section 1 of 1921 PA 17, supra, the Legislature did, consistent with the Constitution, republish the section at length. The Legislature did not intend, however, to give renewed vitality to those provisions which it had previously repealed by implication. The manifest intent of the Legislature in adopting 1978 PA 223 was to subject Commission meetings to the requirements of the Open Meetings Act. No other intent may be ascribed to the legislative action. Legislative history of 1978 PA 223 demonstrates that it was introduced as Senate Bill 1090, one of a series of 13 bills introduced on August 17, 1977 by Senators Plawecki and Faust to subject various state boards, commissions and councils to the provisions of the Open Meetings Act, 1976 PA 267; MCLA 15.261 et seq; MSA 4.1800(11) et seq. 2 Senate Journal, 1977, p 1729. These bills were introduced in apparent response to a letter opinion of the Attorney General addressed to the Honorable Thomas H. Brown dated March 18, 1977, suggesting that a multiplicity of legal problems and perhaps litigation might be avoided if the Legislature amended certain statutes to explicitly subject to the Open Meetings Act, supra, certain governmental bodies enumerated in an attachment to the said letter. The Natural Resources Commission was one of the governmental bodies listed in the attachment. In adopting 1978 PA 223, the Legislature made no substantial changes to those subsections which the Attorney General had previously ruled had been repealed by implication. As stated in People v Wenzel, 105 Mich 70, 74; 62 NW 1038, 1039-1040 (1895): "Where a statute merely re-enacts the provision of an earlier one, it is to be read as a part of the earlier statute, and not of the re-enacting one, if it is in conflict with another passed after the first, but before the last, act; and therefore does not repeal by implication the intermediate one.' End. Stat. Sec. 194, and cases cited.' The obvious intention of amendatory 1978 PA 223 being to subject the Natural Resources Commission to the Requirements of the Open Meetings Act, supra, and not to reconstitute the Natural Resources Commission as a seven member body with two representatives from the Upper Peninsula serving six year terms, it is my opinion that as to the clauses repealed by implication, the 1978 amendment may be regarded as having never been made. It is, therefore, my opinion that the Governor is not required to appoint two members residing in the Upper Peninsula to the Commission of Natural Resources. Turning to your second question, the Executive Organization Act, supra, Sec. 241, provides: 'The head of the department of conservation is the commission of conservation.' In the Executive Organization Act, supra, Sec. 255, the Legislature has provided: 'The principal executive officer of the department is the director of the department of natural resources. The director shall be appointed by the commission and serve at its pleasure.' It is also necessary to consider the Executive Organization Act, supra, Sec. 5, which provides: 'When a principal department is headed by a commission, it may delegate such duties, powers and authority to the director of the department as it deems necessary to fulfill the duties and obligations of the commission.' The Commission has by promulgation of administrative rules describing its organization provided: 'Rule 3. The commission appoints a director and approves the appointment of 2 deputy directors and such assistants and employees as are necessary to carry out the provisions of the act creating the department.' Administrative Code 1976 AACS, R 299.3003 'Rule 6. (1) The director, with the approval of the commission appoints a deputy director for environmental protection, a deputy director for natural resources, an executive assistant, bureau chiefs, regional managers and division chiefs as may be necessary. The department employs such other personnel as are necessary to carry out its duties and responsibilities.' Administrative Code 1976 AASA, R 299.3006. Persons appointed to serve as members of the Commission of Natural Resources do not act individually, but serve with the others named as members of the Commission. Groesbeck v Auditor General, 216 Mich 243; 184 NW 87 (1921). The Commission speaks only through its minutes and resolutions. Tavener v Elk Rapids Agricultural School District, 341 Mich 244; 67 NW2d 136 (1954). Thus, the Commission would signify its approval of the appointment of a deputy director by convening at a lawful meeting with a quorum present and adopting a resolution approving such appointment. It is my opinion, therefore, in response to your second question, that the Commission of Natural Resources must approve appointments of deputy directors by passage of an appropriate resolution at a lawful meeting with the quorum present. Frank J. Kelley Attorney General (1)
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