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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)



Opinion No. 6281

March 28, 1985


Promulgation of rule imposing fees


Authority to promulgate rule imposing fees

In the absence of legislative authorization, the Law Enforcement Council may not promulgate rule imposing fees.

Mr. Wesley H. Hoes

Deputy Executive Secretary

Law Enforcement Council

7426 North Canal Road

Lansing, Michigan 48913

You have requested my opinion on the validity of proposed Rule 28.4106 of the Law Enforcement Council, Department of State Police, dated May 10, 1984, which states:

'(1) A candidate will be assessed an examination fee by the council. The fee shall be paid before the candidate is eligible to take the council's test battery. (2) The examination fee assessed by the counsel shall be used to administer, maintain, and make periodic improvements in the test battery and the regional testing system.'

The test employed to determine the legality of administrative rules is set forth in Chesapeake & Ohio R Co v Public Service Comm'r, 59 Mich App 88, 98-99; 228 NW2d 843, lv den 394 Mich 818 (1975), as follows:

'Where an agency is empowered to make rules, courts employ a three-fold test to determine the validity of the rules it promulgates: (1) whether the rule is within the matter covered by the enabling statute; (2) if so, whether it complies with the underlying legislative intent; and (3) if it meets the first two requirements, when it is neither arbitrary nor capricious.'

A review of the Michigan Law Enforcement Officers Training Act of 1965, MCL 28.601 et seq; MSA 4.450(1), does not indicate any grant of authority to the council to assess or require fees in connection with any service provided by the council. In fact, legislative intent regarding funding is stated at MCL 28.613; MSA 4.450(13), as follows:

'There is created in the state treasury a law enforcement officer's training fund, from which, the Legislature shall appropriate sums deemed necessary for the purposes of this act.'

A similar intent is set forth in MCL 28.614; MSA 4.450(14), which states that the cost for training and living expenses in connection with council training activities shall be paid by the state treasurer from annual appropriations. There is no legislative authorization for the council to impose fees on candidates or trainees.

It is my opinion, therefore, that proposed Rule 28.4106 is beyond the rule making authority of the Law Enforcement Council and may not be approved.

Frank J. Kelley

Attorney General

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