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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. 6312

August 12, 1985

COUNTIES:

Provision of workers' disability compensation insurance coverage for employees of county drain commissioner

DRAINS AND DRAINAGE:

County drain commissioner--authority to provide workers' disability compensation insurance coverage for employees

Since employees of the county drain commissioner are employees of the county, workers' disability compensation insurance coverage for such employees shall be furnished by the county rather than by the county drain commissioner.

Honorable Jerry C. Bartnik

State Representative

The Capitol

Lansing, Michigan

You request my opinion as to the authority of a county drain commissioner to provide workers' disability compensation insurance coverage for drain commissioner employees separate from that provided by the county for other county employees.

MCL 418.611; MSA 17.237(611), in pertinent part, establishes the requirement of an employer to secure payment of compensation:

'(1) Each employer under this act, subject to the approval of the director, shall secure the payment of compensation under this act by 1 of the following methods:

'(a) By receiving authorization from the director to be a self-insurer. The director may grant that authorization upon a reasonable showing by the employer of the employer's solvency and financial ability to pay the compensation and benefits provided for in this act and to make payments directly to the employer's employees as the employees become entitled to receive the payment under the terms and conditions of this act. If the director determines it to be necessary, the director shall require the furnishing of a bond or other security in a reasonable form and amount.

'(b) By insuring against liability with an insurer authorized to transact the business of worker's compensation insurance within this state.'

Your question concerns the definition of a public employer under MCL 418.151; MSA 17.237(151), which provides in pertinent part:

'(1) The following constitutes employers subject to this act:

'(a) The state; each county, city, township, incorporated village, and school district; each incorporated public board or public commission in this state authorized by law to hold property and to sue or be sued generally . . ..'

It must, therefore be ascertained whether a county drain commissioner meets this definition of employer. It is axiomatic that the office of the the county drain commissioner is purely statutory and, therefore, its authority is limited to that provided by the Legislature. OAG, 1963-1964, No 40155, p 453 (august 31, 1964).

1 OAG, 1955, No 2138, p 579 (November 1, 1955), considered the relationship of employees of the county drain commissioner and the county. The opinion noted that county drain commissioner's employees were excluded from membership in the particular county retirement system since such employees were not paid with county general funds. The opinion concluded that such employees were not common-law employees of the county and, therefore, may not be considered county employees for old age and survivors' insurance purposes.

In OAG, 1963-1964, No 4037, p 1, 9 (January 2, 1963), the problems inherent in the relationship between a county drain commissioner's employees and the county were identified and it was suggested that the Legislature provide a solution:

'As indicated by the foregoing analysis of your questions, the problem is mainly to find an entity recognized by law and which can be identified as the legally responsible employer. Secondarily, it becomes necessary to ascertain the source of funds from which the employer's contribution for Social Security coverage may be paid. It lies within the power of the legislature to supply these deficiencies by the enactment of appropriate legislation.'

The status of drain commissioner employees has been the subject of several amendments to the Drain Code of 1956, defining the relationship of the county and the county drain commissioner. MCL 280.27; MSA 11.1027, requires the county to furnish the county drain commissioner with an office. MCL 280.28; MSA 11.1028, mandates county payment of the salaries of the county drain commissioner and a clerk.

The Legislature resolved the problem relative to social security coverage for the county drain commissioner's employees through the passage of 1966 PA 109, MCL 280.32; MSA 11.1032, by providing:

'The board of supervisors of each county having a drain commissioner may adopt a resolution authorizing the county to enter into an agreement with the secretary of health, education and welfare pursuant to the provisions of Act No. 205 of the Public Acts of 1951, as amended, being sections 38.851 to 38.870 of the Compiled Laws of 1948, to allow the drain commissioner and all the employees of the drain commissioner's office to obtain the benefits provided by the federal social security act. The funds necessary for this coverage shall be appropriated from the county general fund or from the revolving drain fund.'

In 1976, the Legislature passed two acts which had the effect of treating the county drain commissioner's employees as county employees. MCL 280.33(1); MSA 11.1033(1), relates to county payment of the county drain commissioner's office employees:

'The salary of the commissioner, deputy commissioners, and clerks and employees of the drain commissioner's office shall, except as otherwise provided in this act, be paid from the general fund of the county in the same manner and at the same time as other county employees are paid.'

Subsection 6 of MCL 280.196; MSA 11.1196, addressed payment of field employees of the county drain commissioner:

'The salaries, expenses, and fringe benefits of clerical, administrative, and engineering employees of the drain commissioner or drainage board working incidental to the operation, repair, or maintenance of a drain shall be chargeable to and paid as budgeted from the county general fund and not chargeable to or by the drain revolving fund.'

MCL 280.33(2); MSA 11.1033(2), effective December 21, 1982, specifically provided that all maintenance employees of the county drain commissioner are county employees:

'The drain commissioner may, with the approval of the county board of commissioners, hire drain maintenance employees. Such drain maintenance employees shall be considered county employees and shall be compensated from the general fund of a county in the same manner and at the same time as other county employees.'

The evolution of this legislation clearly demonstrates a legislative intent to treat county drain commissioner's employees as county employees. Conversely, the Legislature has provided no basis upon which to conclude that the county drain commissioner should be considered the employer of such employees for purposes of providing workers' compensation disability insurance. Consistent therewith, the Legislature has authorized the county to provide all insurance at county expense regarding liability of the drainage districts pursuant to MCL 280.25; MSA 11.1025:

'The commissioner and his bondsmen shall be liable for all the acts and defaults of the deputy or deputies when appointed as herein provided. After entry of the order designating drainage districts as provided in section 54 and section 105 of this act, the drainage district as designated shall be responsible for and liable for all acts an defaults of such commissioner and his deputy or deputies, except for acts of malfeasance or misfeasance.

'The board of supervisors may adopt resolutions providing that public liability or other insurance may be purchased at the expense of the county to cover such potential liabilities of the various drainage districts under the supervision of the county drain commissioner.'

It is my opinion, therefore, that inasmuch as the county is the employer of the county drain commissioner's employees, the county and not the county drain commissioner must provide workers' disability compensation insurance coverage for the county drain commissioner's employees.

Frank J. Kelley

Attorney General

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