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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. 6184

September 22, 1983

APPROPRIATIONS:

Authority of Legislature to transfer moneys appropriated to Department of Civil Service to another executive agency

CIVIL SERVICE, DEPARTMENT OF:

Availability of one percent appropriation for expenditure by another department

CONSTITUTIONAL LAW:

Const 1963, art 11, Sec. 5--diversion of one percent appropriation to Department of Civil Service

1983 PA 170, Sec. 90(1), which purports to transfer a portion of the one percent appropriation to the Department of Civil Service to the Department of Management and Budget for payroll personnel system upgrade, is unconstitutional as violative of Const 1963, art 11, Sec. 5.

Mr. John F. Hueni, Jr.

State Personnel Director

Department of Civil Service

Lewis Cass Building

Lansing, Michigan

Mr. Douglas Roberts

Acting Director

Department of Management and Budget

Lewis Cass Building

Lansing, Michigan

My opinion has been requested relating to 1983 PA 170, the general government appropriation bill for fiscal year 1983-1984. 1983 PA 170, Sec. 1, inter alia, provides for an appropriation of one percent of the aggregate payroll of the state classified civil service for the preceding fiscal year to the Department of Civil Service, and deducts therefrom an appropriation of $481,700 to the Department of Management and Budget for upgrading the personnel payroll system. In 1983 PA 170, Sec. 90, the Legislature has provided:

'(1) The $481,700.00 appropriated in section 1 payroll personnel system upgrade, department of management and budget, is to be totally financed by an interagency grant from the department of civil service. Expenditures for this project shall not be impeded or delayed by an action of any state official regarding the financing of this project.

'(2) If the attorney general issues an opinion declaring the interagency grant unenforceable in whole or part, then $387,500.00 of state general fund/general purpose funds may be used to finance this project.'

In essence, you have asked whether the Legislature may, in an appropriation bill, utilize a portion of the constitutionally required one percent funding for the Civil Service Commission and appropriate moneys therefrom to the Department of Management and Budget for the legislatively designated purpose.

Const 1963, art 11, Sec. 5, in pertinent part, provides:

'To enable the [civil service] commission to exercise its powers, the legislature shall appropriate to the commission for the ensuing fiscal year a sum not less than one percent of the aggregate payroll of the classified service for the preceding fiscal year, as certified by the commission. Within six months after the conclusion of each fiscal year the commission shall return to the state treasury all moneys unexpended for that fiscal year.'

The Civil Service Commission possesses plenary powers within its sphere of authority and is not subject to control by the Legislature. Plec v Liquor Control Commission, 322 Mich 691; 34 NW2d 524 (1948); Viculin v Department of Civil Service, 386 Mich 375; 192 NW2d 449 (1971); Council No 11, American Federation of State, County, & Municipal Employees, AFL-CIO, v Civil Service Commission, 87 Mich App 420; 274 NW2d 804 (1978), aff'd 408 Mich 385; 292 NW2d 442 (1980). The actions of the Civil Service Commission in regard to its enumerated powers may not be restricted, controlled or regulated by the direct or indirect action of the Legislature. OAG, 1961-1962, No 4080, p 445 (July 16, 1962).

A provision similar to Const 1963, art 11, Sec. 5 was contained in Const 1908, art 6, Sec. 22. In Civil Service Commission v Auditor General, 302 Mich 673; 5 NW2d 536 (1942), the Supreme Court considered the constitutional validity of a limitation contained in an appropriation bill that prevented the Auditor General from issuing his warrant for any salary or wage of any state employee in any state department or agency for which deficiency appropriations were made if such salary or wage included an increase fixed by the Civil Service Commission. The court held:

'Although the appropriation bill must be initiated by the legislature, the legislature cannot attach unconstitutional conditions. The amendment clearly states that the commission should 'fix rates of compensation.' In the spending of the money appropriated by the legislature, the commission's control is perhaps even greater than the regents of the university of this State. In Board of Regents of the University of Michigan v Auditor General, 167 Mich. 444, although we said that conditions may be attached to appropriations for the university, we added that the regents may accept or reject such appropriations as they see fit. We indicated that legislative provisions as to accounting must be complied with, but 'beyond that the money passes to the regents, and becomes the property of the university, to be expended under the exclusive direction of the regents.'

'The opinion of Justice McDonald in State Board of Agriculture v. Auditor General, 226 Mich. 417, is informative. At page 425, he states:

"Clearly, in saying that the legislature can attach to an appropriation any condition which it may deem expedient and wise, the court had in mind only such a condition as the legislature had power to make. It did not mean that a condition could be imposed that would be an invasion of the constitutional rights and powers of the governing board of the college. It did not mean to say that, in order to avail itself of the money appropriated, the State board of agriculture must turn over to the legislature management and control of the college, or of any of its activities. . . .'

In view of the foregoing and in accordance with the plain intent and meaning of the amendment, we hold that section 3 of the appropriation bill is unconstitutional and void, and shall be disregarded by the auditor general. The interposition of this section into the act in question, not impliedly but in express terms, undertakes to usurp the authority vested in the civil service commission by the constitutional amendment to fix rates of compensation of employees of the State who are under civil service classification.' Civil Service Commission v Auditor General, supra, 302 Mich 685-687.

In 1959, the Legislature enacted Enrolled House Bill 108, which purported to deduct from the one percent appropriation to the Civil Service Commission the sum of one percent of the payroll represented by personnel administrative officers (state classified employees) in various executive departments and agencies. I OAG 1959, No 3435, p 134 (July 9, 1959), reviewed the question and concluded that Enrolled House Bill 108 violated Const 1908, art 6, Sec. 22 and was, therefore, unconstitutional. The Legislature, in 1962, enacted 1962 PA 242, Sec. 12, which barred the use of moneys appropriated to various executive departments to pay salaries and wages of employees performing personnel administrative services and ordered payment for same to be made from one percent appropriation made to the Civil Service Commission, OAG, 1961-1962, No 4080, p 445 (July 16, 1962), concluded that Const 1908, art 6, Sec. 22 was violated and the provision was declared unconstitutional.

1983 PA 170, Sec. 90(1) undertakes to do indirectly what may not constitutionally be done. By providing that $481,700 is to be transferred to the Department of Management and Budget, the Legislature has equivalently reduced the appropriation to the Department of Civil Service.

It is my opinion, therefore, that the transfer of funds provided for by 1983 PA 170, Sec. 90(1) from the Department of Civil Service to the Department of Management and Budget may not be effected without violating Const 1963, art 11, Sec. 5.

Frank J. Kelley

Attorney General


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