STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6249

September 26, 1984

EDUCATION, STATE BOARD OF:

Promulgation of guidelines for educational components of child care programs operated by school districts

SCHOOLS AND SCHOOL DISTRICTS:

Regulation of child care program of district

SOCIAL SERVICES:

Child care organizations--school district operating latchkey program

SOCIAL SERVICES, DEPT. OF:

Regulation of child care program operated by school district

A school district operating a latchkey program in public school buildings for elementary pupils enrolled by their working parents for their care before and after the regular school day is a child care organization subject to the requirements of 1973 PA 116 except for the fire prevention and fire safety requirements thereof.

The State Board of Education is required to promulgate guidelines concerning curriculum, educational program and staff qualifications for child care centers operated by school districts.

Honorable John Kelly

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on several questions relating to the operation of 'latchkey programs' by school districts. Some public school districts provide supervised care before and after the regular school day in public school buildings for those elementary school age children whose parents enroll them for such additional supervision. These programs meet the needs of working parents for extended adult supervision for their elementary school age children while the parents are away from home working. Such programs are commonly referred to as latchkey programs. These programs do not include elementary school age children who simply arrive at the school premises before classes commence and, while the children are subject to some supervision, they are not enrolled in such programs.

Your first question is:

OAG, 1977-1978, No 5278, p 387 (March 15, 1978), considered the respective roles of the Michigan Department of Education and the Michigan Department of Social Services in regulating day care programs operated by public school districts and concluded that the authority to promulgate administrative rules governing day care programs operated by public school districts was reposed in the Department of Education, pursuant to the School Code of 1976, 1976 PA 451, Sec. 1285; MCLA 380.1285; MSA 15.41285, rather than in the Department of Social Services pursuant to 1973 PA 116; MCLA 722.111 et seq; MSA 25.358(11) et seq.

Subsequently, the Legislature amended 1976 PA 451, Sec. 1285, supra, by enacting 1978 PA 574, effective January 2, 1979, which authorizes public school districts to establish child care centers subject to regulation by the Department of Social Services pursuant to 1973 PA 116, supra. Section 1285 of 1976 PA 451, supra, as last amended by 1983 PA 149, currently provides:

In 1973 PA 116, supra, Sec. 1(e), the Legislature has defined the term 'child care center,' as used therein, to mean:

Latchkey programs operated by public school districts in public school buildings involve providing care for school age children for more than two consecutive weeks where the parents are not immediately available to their children. As set out in the joint letter of the Superintendent of Public Instruction and the Director of the Department of Social Services addressed to public school superintendents, dated May 10, 1984, school district operated programs which care for school age children before and after the regular school day are subject to the licensing regulations of the Department of Social Services as required by 1973 PA 116, supra, and 1976 PA 451, Sec. 1285, supra. The construction given statutes by the agencies that administer the statutes, albeit very short in duration, is entitled to respectful judicial consideration and ought not be overruled without cogent reasons. Board of Education of Oakland Schools v Superintendent of Public Instruction, 401 Mich 37, 41-42; 257 NW2d 73 (1977).

Based on the amendment of 1976 PA 451, Sec. 1285, supra, by means of 1983 PA 149, and 1973 PA 116, Sec. 2(3)(e), supra, by means of 1983 PA 150, it is clear that latchkey programs housed in public school buildings are subject to the requirements of 1973 PA 116, supra, except for the fire prevention and fire safety requirements thereof with respect to which controlling provisions are those generally applicable to public school buildings as set forth in 1937 PA 306, Sec. 3; MCLA 388.853; MSA 15.1963, and in the fire safety rules, 1979 MAC R 29.1 TO R 29.298.

In answer to your first question, it is my opinion that latchkey programs operated by public school districts in public school buildings are subject to the requirements of 1973 PA 116, supra, except for the fire prevention and fire safety requirements thereof. It is my further opinion that latchkey programs are also subject to State Board of Education guidelines with respect to education curriculum, program practices, and staff qualifications.

Your second question is:

The Legislature has defined the term 'child care organization' in 1973 PA 116, supra, Sec. 1(a), as follows:

The principal function of school districts is education rather than care and supervision. OAG, 1977-1978, No 5278, supra. However, the Legislature has amended both 1976 PA 451, Sec. 1285, supra, by 1978 PA 574 and 1983 PA 149, and 1973 PA 116, supra, by 1983 PA 150, to make it clear that child care centers operated by public school districts are subject to most of the requirements of 1973 PA 116, supra. This manifest legislative intent must be effectuated. Furthermore, as stated in its title, 1973 PA 116, supra, is an act to protect children through licensing and regulating child care organizations. The statutory definition of a child care organization includes, inter alia, a child care center. Thus, it must be concluded that a school district that operates a latchkey program falling under the statutory definition of a child care center is a child care organization for the limited purpose of operating the supervisory latchkey program.

In answer to your second question, it is my opinion that a local school district that operates a latchkey program is a child care organization for the limited purpose of operating such supervisory program within the meaning of 1973 PA 116, Sec. 1(a), supra.

Your third question is:

The plain meaning of 1976 PA 451, Sec. 1285(3), supra, is that the Legislature has required the State Board of Education to adopt guidelines concerning curriculum, program practices, and staff qualifications for child care centers. The word 'shall' addressed to public officers is mandatory and, therefore, excludes the concept of choice. Ladies of the Maccabees v Commissioner of Insurance, 235 Mich 459; 209 NW 581 (1926).

In answer to your third question, it is my opinion that 1976 PA 451, Sec. 1285(3), supra, mandates the State Board of Education to adopt guidelines in the areas of curriculum, program practices, and staff qualifications for child care centers operated by public school districts.

Your fourth question is:

It must first be observed that in 1973 PA 116, Sec. 2, supra, the Legislature has authorized the Department of Social Services to promulgate administrative rules covering, inter alia, child care centers. Administrative rules adopted pursuant to legislative authorization have the effect of law. Mehrer v Michigan Department of Social Services, 24 Mich App 453, 459; 18 NW2d 345 (1970). Moreover, the former authority of the State Board of Education to promulgate administrative rules concerning day care programs operated by public school districts has been removed and replaced with the authority to establish guidelines for the operation of child care centers by public school districts in the areas of curriculum, program practices, and staff qualifications. Compare, 1976 PA 451, Sec. 1285, supra, as originally enacted, and as amended by 1978 PA 574 and 1983 PA 149. Currently there are no conflicts between the administrative rules of the Department of Social Services covering child care centers and any State Board of Education guidelines. In the event a conflict were to occur, the administrative rules adopted by the Department of Social Services would supersede any conflicting guidelines adopted by the State Board of Education concerning child care centers because duly adopted administrative rules have the force and effect of law, whereas guidelines do not since they merely bind the agency which adopts them. 1969 PA 306, Sec. 203(6); MCLA 24.203; MSA 3.560(103).

It is my opinion, in answer to your fourth question, that the rules and regulations adopted by the Department of Social Services pursuant to 1973 PA 116, Sec. 2, supra, would supersede any conflicting guidelines adopted by the State Board of Education pursuant to 1976 PA 451, Sec. 1285(3), supra, concerning child care centers operated by public school districts. It is my further opinion that the State Board of Education may, however, establish guidelines with respect to the educational curriculum, program practices, and related staff qualifications, for the operation of child care centers by public school districts.

Frank J. Kelley