STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5886

April 21, 1981

STATE TOXIC SUBSTANCE CONTROL COMMISSION:

Appointment of person holding position in state government to Commission

WORDS AND PHRASES:

'Positions in state service'

Any person employed by the state or its agencies and any person who is an elected or appointed state officer occupies a position in the state service and may not receive an appointment to the State Toxic Substance Control Commission.

Honorable William G. Milliken

Governor of Michigan

Office of the Governor

Lansing, Michigan

You have requested my opinion concerning the appointment by you of the seven (7) voting members of the State Toxic Substance Control Commission. The John C. Hertel Toxic Substance Control Commission Act, 1978 PA 116; MCLA 286.181 et seq; MSA 14.529(101) et seq, provides, in Sec. 3(2), for the composition of the membership of the State Toxic Substance Control Commission (hereafter 'Commission'):

With respect to the language of 1978 PA 116, Sec. 3(2), supra, providing that 'A voting member shall not hold any other position in state government,' you specifically inquire whether the following persons serving the state in the described positions may serve or be appointed as voting members of the commission:

In addition, Dr. Aronow is currently a member of the Pesticide Advisory Council within the Michigan Department of Agriculture, pursuant to 1976 PA 171, Sec. 20(2); MCLA 286.570(2); MSA 12.340(20)(2). Dr. Aronow was initially appointed to a one-year term on the Advisory Council on April 26, 1977, and was subsequently reappointed on May 1, 1978, for a three-year term.

1978 PA 116, Sec. 3(1), supra, pertinently states that a voting member of the Commission shall not hold any other 'position in state government.' The word 'position' is not defined in the Act. RS 1846, ch 1, Sec. 3a; MCLA 8.3a; MSA 2.212(1) relevantly states that 'All words and phrases shall be construed and understood according to the common and approved usage of the language. . . .' Webster's Third International Dictionary defines 'position' as including 'office, employment, vocation.' In Frazier v Elmore, 180 Tenn 232, 238-239; 73 SW2d 563, 565 (1943), it was held that the word 'position' was synonymous with the words office, post, and appointment. It has similarly been held that the ordinary meaning of the word 'position' in a statute encompasses a job, office (whether elective or appointive) or any position of employment. See People, ex rel Downs v Adams, 59 Ill 2d 178, 182-183; 319 NE2d 465, 468 (1974). See, also, Brown v Boyd, 33 Cal App 2d 416, 422-423; 91 P2d 926, 930 (1939). Thus, the common and ordinary meaning of the word 'position' must be held to include any person who is employed within state government, or who holds an elective or appointive office within state government. ⁽¹⁾

The ordinary and common meaning of the word 'position' as encompassing employees and appointed or elected officials is also evinced in Const 1963, art 11, Sec. 5, providing for the State Civil Service, and which pertinently states:

See Reed v Civil Service Commission, 301 Mich 137, 158-159; 3 NW2d 41, 49 (1942), where the word 'position,' of the antecedent to Const 1963, art 11, Sec. 5, supra, was described as 'places in State employment filled by persons or employees.' Thus, under Const 1963, art 11, Sec. 5, supra, all positions in the state service comprise the state classified civil service with the exception of those positions in the state service which are filled by popular election, by persons who head principal departments, by members of boards and commission, and other positions not relevant to this analysis.

Finally, it may be noted that under the State Ethics Act, 1973 PA 196, Sec. 1, as last amended by 1980 PA 481, there appears the following relevant definition of 'employee' and 'public officer':

Based on the foregoing, it is my opinion that a person holding a 'position in state government' for purposes of 1978 PA 116, Sec. 3(2), supra, means any person employed by the state or its agencies and any person who is an elected or appointed state officer.

1978 PA 606, Sec. 2, supra, provides that the Department of Public Health shall establish a State Poison Advisory Committee to be composed of a representative of each poison center in this state 'for the purpose of developing guidelines for the implementation and operation of the state plan for the state poison control center network.' The appropriation for the Department of Public Health for fiscal year 1980-1981, being 1980 PA 364, contains an appropriation of $100,000 for a poison control program.

The State's poison control network is presently comprised of two regional poison control centers housed at Childrens' Hospital of Detroit (the Detroit region) and Blodgett Memorial Hospital in Grand Rapids (the Western Michigan region). Both hospitals are private, nonprofit institutions, and are not state or local agencies. The regional centers are, in turn, linked to local poison control subcenters. The purpose of the poison control network is to provide complete toxicologic services for hospitals and physicians primarily with respect to poisons, drug overdose cases, and hazardous materials and wastes.

The $100,000 appropriation made by 1980 PA 364, supra, will be utilized to permit the two regional centers at Detroit and Grand Rapids (Western Michigan region) to assist in the provision of services by the regional centers to subcenters, hospitals and physicians.

Dr. Meester, the chairperson of the State Poison Advisory Committee, is a clinical toxicologist in the Department of Medical Research at Blodgett Memorial Hospital in Grand Rapids, which serves as the Western Michigan Regional Poison Control Center in the poision control network. Dr. Meester serves as chairperson of the Advisory Committee as a representative of the Western Michigan Regional Poison Control Center housed at Blodgett Memorial Hospital. He is not a member of the Advisory Committee through appointment by the Governor or the director of any principal department, and he is not a state employee. Accordingly, it is my opinion that Dr. Meester, as chairperson of the State Poison Advisory Committee, does not hold any other position in state government which precludes his appointment as a voting member of the State Toxic Substance Control Commission.

Dr. Aronow, as a member of the State Poison Advisory Committee, does not hold a position in state government for the reasons stated in my response to Specific Inquiry (1), supra. However, Dr. Aronow was appointed to her official position the Pesticide Advisory Council by the Director of the Department of Agriculture under 1976 PA 171, Sec. 20(2), supra. Therefore, it is my opinion that Dr. Aronow, by virtue of her appointment to the Advisory Council by the Director of the Department of Agriculture, occupies a position in state government and may not serve as a member of the State Toxic Substance Control Commission while occupying her position on the Pesticide Advisory Council.

Dr. Cooper, as the appointed chairperson of the Michigan Environmental Review Board, a state agency, occupies a position in state government under 1978 PA 116, Sec. 3(2), supra. It is my opinion that Dr. Cooper may not be appointed to the Commission.

Dr. Tody, a retired civil servant, has served on five (5) occasions, most recently on September 24, 1980, as an Oral Examiner for the Executive II classification for the Civil Service Commission. He is not under contract with the Commission; he serves at his option as needed, and receives per diem and mileage for services rendered. Thus, Dr. Tody is not, at this time, an employee or officer of the Commission. It is my opinion, therefore, that Dr. Tody does not occupy a position in state government which precludes his lawful appointment to the State Toxic Substance Control Commission. However, while he is serving on the Commission he may not be employed by the Civil Service Commission.

Frank J. Kelley