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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. 5818

November 19, 1980

COUNTIES:

Contract for use of voting machines by private organization

Under policies established by a county board of commissioners, a county may contract with a private organization for the use of its voting machines.

Honorable John M. Engler

State Senator

The Capitol

Lansing, Michigan 48909

You have inquired whether a county may permit a labor union to use the county's voting machines for a union election. The union's election did not involve county employees, nor was the union charged for the use of the voting machines.

Const 1963, art 9, Sec. 18, provides:

'The credit of the state shall not be granted to, nor in aid of any person, association or corporation, public or private, except as authorized in this constitution.'

This provision has been held applicable to counties. Drain Commissioner of Oakland County v City of Royal Oak, 306 Mich 124; 10 NW2d 435 (1943).

OAG, 1977-1978, No 5402, p 714 (December 13, 1978), considered whether Const 1963, art 9, Sec. 18, supra, was offended by a county appropriating county funds for the preservation of an historical landmark, where the appropriation of such funds was statutorily authorized. OAG, No 5402, supra, concluded that, pursuant to statutory authorization, it was a matter of judgment in the sound discretion of the county commissioners whether a county appropriation for restoring and preserving an historical landmark would 'result in a degree of public benefit so as to constitute adequate consideration' under Const 1963, art 9, Sec. 18, supra. In so concluding, OAG, No 5402, supra, quoted extensively from Alan v Wayne County, 388 Mich 210, 325-327; 200 NW2d 628 reh den 388 Mich 626; 202 NW2d 277 (1972):

'Michigan case law interpreting Const 1963, art 9, Sec. 18 is neither ample nor precise. It is clear the state or its subdivision the county cannot give anything away without consideration. Detroit Museum of Art v Engel, 187 Mich 432 (1915) (salary of employee of private museum, no consideration, no public purpose) Younglass v Flint, 345 Mich 576 (1956) (transfer of city park to US reserve armory) but see contra Sommers v Flint, 355 Mich 655, 663 (1959). See generally 15 McQuillan Municipal Corporations (3rd ed), Sec. 39.30. Note that the constitution as far as the state and county are concerned makes no difference between a public and private purpose in this regard. When the state acquires or transfers something of value in return for value the state does not offend Const 1963, art 9, Sec. 18. Walinske v Detroit-Wayne Joint Building Authority, 325 Mich 562, 583 (1949) (lease of building); Jackson Broadcasting Television Corp v State Board of Agriculture, 360 Mich 481, 498 (1960) (time-sharing on rental basis of studio); Hays v Kalamazoo, 316 Mich 443 (1947) (Michigan Municipal League membership).

'Now the nub of the problem in all probability is the value received by the state in return for the value transferred. So our inquiry goes to what is the value and who determines it. While the cases definitely describing all the earmarks of the value to be received appear yet to be written, it is probably because any citizen would immediately prescribe full value, and this Court is not going to argue with so logical, reasonable and just a standard.

This Court will assume that the officers of the Legislative and Executive Branches will do their duty and exercise a proper judgment. The courts will respect that judgment unless there has been a clear abuse of discretion. Obviously, if the state or county were to make a valuable grant for next to no consideration, the courts would be forced to regard that not as an exercise of discretion, but an abuse of discretion.'

Accordingly, OAG, No 5402, supra, held that it was necessary that an agreement between the county and the non-profit historical landmark corporation be entered into providing how the funds would be utilized by the private, non-profit organization, embracing such aspects, for example, as the continued existence of the historical landmark and its availability to the public. See also, OAG, 1977-1978, No 5212, p 199 (August 17, 1977).

In OAG, 1979-1980, No 5664, p 630 (February 20, 1980), it was held that under Const 1963, art 9, Sec. 18, supra, the Legislature may authorize the Department of Natural Resources to remit funds from the Fish and Game Protection Fund to non-profit organizations for the maintenance of suitable habitat in Canada for migratory birds, pursuant to contract between the Department and such non-profit organizations. OAG, No 5664, supra, concluded that such agreement could require that any funds appropriated be expended on fresh waterfowl which breed or migrate through Michigan; the continued existence of the non-profit organization; submission of annual reports on project expenditures; copies of annual audits and annual assurance of tax-exempt status, and if appropriate, availability of the waterfowl propagation area to the public.

It is concluded that under Const 1963, art 9, Sec. 18, supra, that local officers will perform their statutory duties and exercise proper judgment in the determination of consideration received for value transferred, pursuant to appropriate contractual terms, and that judgment shall be respected unless a clear abuse of discretion is demonstrated.

1851 PA 156, MCLA 46.1 et seq; MSA 5.321 et seq, provides for county boards of supervisors (Commissioners). 1851 PA 156, supra Sec. 11, as last amended by 1978 PA 629, provides county boards of commissioners with these pertinent powers:

'(p) Represent the county and have the care and management of the property and business of the county where no other provisions are made.

'(q) Establish rules and regulations in reference to the management of the interest and business concerns of the county, as the board considers necessary and proper in all matters not especially provided for in this act or under the laws of this state.'

See OAG, 1941-1942, No 20152, p 210 (June 24, 1941).

The Michigan Election Law, 1954 PA 116, ch 28; Sec. 770; MCLA 168.770; MSA 6.1770 provides:

'The governing body of any governmental unit in this state may contract with the governing body of any other governmental unit in this state with regard to the use of voting machines owned by either of the contracting units.'

1954 PA 116, ch 28, supra, Sec. 771, authorizes the purchase by a county of voting machines.

Thus, 1954 PA 116, ch 28, Sec. 779, supra, provides authority for a county board of commissioners to contract with the governing body of any other governmental unit in the state for the use of voting machines owned by either contracting unit. Thus, the county may enter into a contract with the board of education of a school district to permit the school district to utilize the county voting machines. Such contract, authorized by 1954 PA 116, ch 28, Sec. 770, supra, would be effectuated pursuant to 1851 PA 156, Sec. 11(p)(q), supra, a matter within the sound judgment of the county board of commissioners. OAG, No 5402, supra. Similarly, in the exercise of its authority over county property, the county board of commissioners, pursuant to 1851 PA 156, Sec. 11(p)-(q), supra, in its discretion may authorize usage of county voting machines by public or private non-profit organizations located within the county, pursuant to agreement with the county board of commissioners. OAG, Nos 5402 and 5664, supra.

It must be noted that it is within the sound discretion of the county board of commissioners, pursuant to 1851 PA 156, Sec. 11(p)-(q), supra, to determine whether a non-governmental entity in the county may be permitted the use of county voting machines. Should a county board of commissioners determine to permit the use of county voting machines by non-governmental entities within the county, such determination should be established by decision of the board in its legislative capacity. Absent such approval by the county board of commissioners, pursuant to contract with another governmental entity, as authorized by 1954 PA 116, ch 28, Sec. 770, supra, or as otherwise authorized by the board with respect to other non-governmental entities within the county, the lending of county voting machines is not authorized.

Assuming that a county board of commissioners legislatively determines to authorize the use of county voting machines by non-governmental entities in the county, such authorization, in each instance, must be formalized by agreement with the entity which desires the use of the county voting machines. In order to comport with Const 1963, art 9, Sec. 18, supra, any such agreement should provide for an appropriate usage fee or charge including labor and transportation costs incurred in the transporting of the voting machines to the site of the election in question, an appropriate refundable damage deposit, as well as other additional terms deemed proper. It must be emphasized that it is within the county board of commissioners discretionary powers to determine whether the county, in the first instance, wishes to permit the usage of county voting machines by governmental or non-governmental entities located within the county. (1)

It is, therefore, my opinion that consistent with Const 1963, art 9, Sec. 18, supra, and where authorized by a policy of the county board of commissioners, a county may enter into a contract whereby non-governmental entities are permitted usage of county voting machines.

Frank J. Kelley

Attorney General

(1) In the situation you have posited, the action of the county clerk in allowing the union to utilize the county's election machines was subsequently ratified by the county board of commissioners.

 


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