STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5979

September 16, 1981

RETIREMENT SYSTEMS:

Municipal Employees' Retirement System--right of county hospital to join as member

The board of trustees of a county general hospital is without authority to elect to participate in the Municipal Employees' Retirement System.

Mr. John W. Fonger

Manager

Municipal Employees' Retirement System

Department of Management and Budget

Stevens T. Mason Building

Lansing, Michigan

You have requested my opinion concerning the following:

Your letter explains that Mecosta County General Hospital employees are presently members of the Municipal Employees' Retirement System (MERS) through Mecosta County's participation in that system. Mecosta County General Hospital wishes to become an independent participating municipality in the MERS, so that its board of trustees would control its employees' retirement program as opposed to, as is presently required, being bound to the decisions of the Mecosta County Board of Commissioners. You report further that there are at least two other county general hospitals similarly interested in obtaining independent status.

The Municipal Employees' Retirement Act, 1945 PA 135; MCLA 38.601 et seq; MSA 5.4001 et seq, established and controls the MERS. For the purposes of the MERS, the term 'participating municipality' is defined, in part, as 'a municipality which has elected to come under this act.' 1945 PA 135, supra, Sec. 2(d). 'Municipality' is defined in 1945 PA 135, supra, Sec. 2(c), as:

The status and powers of the Mecosta County General Hospital Board of Trustees are determined by the county hospital act, 1913 PA 350; MCLA 331.151 et seq; MSA 14.1131 et seq.

The county hospital act authorizes any county board of commissioners to establish a public hospital, if approved by the county's electors. The county hospital is to be supervised by a board of trustees, who 'shall constitute a body corporate and may sue and be sued.' 1913 PA 350, supra, Sec. 4. The Board of Trustees exclusively controls the funds of the hospital and exercises general supervision over the hospital's activities. 'Every hospital established under this act shall be for the benefit of the inhabitants of such county and of any person falling sick or being injured or maimed within its limits.' 1913 PA 350, supra, Sec. 10.

It is obvious that a county hospital board of trustees would, all other things being equal, constitute a governmental body of sufficient status to qualify as a 'municipality' under the MERS.

The analysis of your question, however, does not end there. The county hospital act contains specific language concerning retirement and pensions. 1913 PA 350, supra, Sec. 4a provides:

The board of trustees for a county hospital is a creature of the Legislature and has only those powers granted it by the Legislature.

The first clause of 1913 PA 350, Sec. 4a, supra, authorizes the board of trustees to include hospital employees in a 'retirement or pension plan of the county where the hospital is located.' Thus, the inclusion of the Mecosta County General Hospital's employees in the MERS under the umbrella of Mecosta County's participation in that system is legal. Does, however, the remaining language of that first sentence, '[or] it may establish its own retirement or pension plan for its employees', authorize independent participation in the MERS?

Legislative enactments must be read as a whole so as to harmonize meaning of their separate provisions and to give effect to the Legislature's intent. Washtenaw County v Saline River Intercounty Drainage Board, 80 Mich App 550; 264 NW2d 53 (1978). With that in mind, the last sentence of 1913 PA 350, Sec. 4a, supra, gains substantial significance for our analysis:

In Dussia v Monroe County Employees Retirement System, 386 Mich 244, 249; 191 NW2d 307, 309 (1971), the Supreme Court considered 1851 PA 156, Sec. 12a; MCLA 46.12a; MSA 5.333(1), ruling:

By requiring county pension plan committee approval and employing the crucial language of 1851 PA 156, Sec. 12a, supra, the Legislature has specified that, if it elects to establish a separate pension plan, a county hospital board of trustees must establish a plan consistent with 1851 PA 156, Sec. 12a, supra.

The express mention in a statute of one thing implies exclusion of other similar things. Sebewaing Industries, Inc v Village of Sebewaing, 337 Mich 530; 60 NW2d 444 (1953). Where there are two acts, one of which is specific and particular and includes the matter in question, and the other of which is general, and which, if standing alone, would include the same matter and thus conflicts with the specific act, the specific act must be viewed as an exception to the general. Flint Board of Education v Williams, 88 Mich App 8; 276 NW2d 499 (1979). If the county hospital board of trustees elect to establish a separate retirement plan for the hospital employees, it may do so only under 1851 PA 156, Sec. 12a, supra.

To conclude that the board of trustees may independently participate in the MERS would, in addition, conflict with the mandate of 1913 PA 350, Sec. 4a, supra, that the 'plan established by the board of trustees' be approved by the county pension plan committee. If the board of trustees could join the MERS, the county pension plan committee would be in the impossible position of passing on provisions of the MERS not in harmony with 1851 PA 156, Sec. 12a, supra. This conflict may only be resolved by the conclusion that the board of trustees is limited to establishing an independent plan under 1851 PA 156, Sec. 12a, supra.

The February 23, 1971 letter opinion to Mr. Frederick Clohset, chairman of West Shore Hospital, concluded that a county hospital board of trustees lacked statutory authority to establish a separate retirement and pension plan for hospital employees, but could participate in the MERS. Four months later, however, the county hospital act was amended by 1971 PA 29, which added 1913 PA 350, Sec. 4a, supra. Due to the passage of 1971 PA 29, my February 23, 1971 opinion is no longer controlling.

It is, therefore, my opinion that the Mecosta County General Board of Trustees does not have the legal authority to function as an independent participant in the Municipal Employees' Retirement System.

Frank J. Kelley