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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. 6237 July 31, 1984 CONSTITUTIONAL LAW: Const 1963, art 9, Sec. 29--obligation of the state to pay for a new activity required of local units of government MUNICIPAL CORPORATIONS: Utilization of licensed professionals on public works projects 1980 PA 299, Sec. 2011, as last amended by 1981 PA 83, in prohibiting local units of government from engaging in certain public works projects without the utilization of licensed architects, engineers and land surveyors, imposes no obligation to engage in public works projects resulting in any new activity or service requiring a state appropriation to fund the same. Honorable Lad S. Stacey State Representative The Capitol Lansing, Michigan You have requested my opinion whether Const 1963, art 9, Sec. 29, applies to the provisions of 1980 PA 299, Sec. 2011, as last amended by 1981 PA 83; MCLA 339.2011; MSA 18.425(2011), which specifies that local governmental units may not engage in public works projects without the assistance of licensed architects, engineers, and land surveyors where the cost of such projects is $15,000 or more. Const 1963, art 9, Sec. 29, as ratified by the people effective December 23, 1978, states, in pertinent part: 'A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs.' As of December 22, 1978, the prohibition against public works projects not having professional preparation and supervision was set forth in 1937 PA 240, Sec. 18, as amended by 1970 PA 20; MCLA 338.568; MSA 18.84(18), as follows: 'It is unlawful for this state, or for any of its political subdivisions, or any county, city, town, township, village or school district to engage in the construction of any public work involving architecture or professional engineering, unless the plans and specifications and estimates have been prepared by, and the construction executed under the direct supervision of, a registered architect or a registered professional engineer, and unless any survey of land on which any such public work has been or is to be constructed shall be made under the supervision of a registered land surveyor. However, nothing in this section shall be held to apply to any public work wherein the contemplated expenditure for the completed project does not exceed $5,000.00.' [Emphasis added.] The foregoing provision was repealed by 1980 PA 299, supra, Sec. 2601, effective October 21, 1980. 1980 PA 299, Sec. 2011, supra, provided as originally enacted in 1980: '(1) The state or a county, city, township, village, school district, or other political subdivision of this state shall not engage in the construction of a public work involving architecture or professional engineering unless all of the following requirements are met: '(a) The plans and specifications and estimates have been prepared by a licensed architect or licensed professional engineer. '(b) The review of the materials used and completed phases of construction is made under the direct supervision of a licensed architect or licensed professional engineer. '(c) Each survey of land on which the public work has been or is to be constructed is made under the supervision of a licensed land surveyor. '(2) This section does not apply to a public work for which the contemplated expenditure for the completed project is less than $50,000.00.' [Emphasis added.] The revision to 1980 PA 299, Sec. 2011, supra, by 1981 PA 83, was to strike '$50,000.00' in subsection (2) and insert in its place '$15,000.00.' A plain reading of Const 1963, art 9, Sec. 29, supra, reveals that it is concerned with new, and increased levels of, activities being required of units of local government. By contrast, 1908 PA 299, Sec. 2011, supra, involves a command of prohibition instructing local units not to engage in public works unless certain conditions are fulfilled. As such, Const 1963, art 9, Sec. 29, supra, on its face, has no application. This interpretation is consistent with the provisions of 1979 PA 101; MCLA 21.231 et seq; MSA 5.3194(601) et seq, which the Legislature adopted to implement Const 1963, art 9, Sec. 29, supra, in that it excluded in section 4(5) the following circumstances from the definition of 'state requirements' imposing new or increased levels of activity: '(h) A requirement of a state law which does not require a local unit of government to perform an activity or service but allows a local unit of government to do so as an option, and by opting to perform such an activity or service, the local unit of government shall comply with certain minimum standards, requirements, or guidelines. '(i) A requirement of a state law which changes the level of requirements, standards, or guidelines of an activity or service that is not required of a local unit of government by existing law or state law, but that is provided at the option of the local unit of government.' [Emphasis added.] Applying 1979 PA 101, Sec. 4(5)(h) and (i), supra, to your question, it is clear that no obligation is imposed therein upon local governmental units to engage in public works projects. Thus, no new or increased activity or service is required by the amendatory legislation. It is my opinion, therefore, that 1980 PA 299, Sec. 2011, supra, as amended by 1981 PA 83, is not impacted by Const 1963, art 9, Sec. 29, because no new or increased activity or service is required by the amendatory act. Frank J. Kelley Attorney General
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