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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. 6452

July 20, 1987

APPROPRIATIONS:

Validity of provision requiring preference to local community based firms

CONSTITUTIONAL LAW:

Const 1963, art 4, Sec. 25

1986 PA 213, Sec. 30, which requires a preference to be given local community based firms as a condition upon the expenditure of funds appropriated in 1986 PA 213 for the Department of Corrections for health care service, food service, or other goods and service purposes, does not violate Const 1963, art 4, Sec. 25.

Stephen Weiss

Acting Director

Department of Management and Budget

Lewis Cass Building

Lansing, Michigan 48909

My opinion has been requested on the following question:

Whether 1986 PA 213, Sec. 30, violates the provisions of Const 1963, art 4, Sec. 25, by amending, altering, and revising the Management and Budget Act, 1984 PA 431, Sec. 261(1), without having re-enacted or published the amended act at length.

Const 1963, art 4, Sec. 25, provides:

"No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length."

1986 PA 213 makes appropriations for the Department of Corrections for the fiscal year ending September 30, 1987. 1986 PA 213, Sec. 30, provides:

"Preference is to be given to local community based firms when the department has reason to expend amounts appropriated under section 1 for health care, food services, or other goods and services outside the department. Of the estimated $4,000,000.00 appropriated in section 1 for a secure health care unit, preference is to be given to a local community for such health care service."

The Management and Budget Act, 1984 PA 431, Sec. 261(1), MCL 18.1261(1); MSA 3.516(261), provides:

"The department shall provide for the purchase of, or the contracting for, the providing of supplies, materials, services, equipment, and printing as needed by state agencies. The department, in making purchases and entering into contracts, shall encourage and promote the competitive viability of the private sector in providing products and services to the public. In all purchases made by the department, all other things being equal, preference shall be given to products manufactured or services offered by Michigan-based firms, where consistent with federal statutes.

The spending directives contained within 1986 PA 213, Sec. 30, do not apply to all purchasing by the Department of Management and Budget, but, rather, only direct the manner of expenditure of those appropriations made for the Department of Corrections which are contained within 1986 PA 213, Sec. 1.

In OAG, 1985-1986, No 6337, p 215 (January 22, 1986), the question of whether the provisions of an appropriations bill, 1985 PA 104, Sec. 105, added a second distinct and unrelated object to the act in contravention of Const 1963, art 4, Sec. 24, was addressed. The opinion stated:

"It is not entirely clear whether the Legislature intended 1985 PA 104, Sec. 105, to apply to all state contracts and not only those contracts for which the Act appropriates funds. If 1985 PA 104, Sec. 105 is read to require its provisions to apply to all state contracts, the same conclusion as ennuciated in OAG, 1981-1982, No 5930, [p 245 (July 1, 1981) ], is required in answer to your question. 1985 PA 104 was enacted as an appropriation act for the principal purpose of approriating funds for the 1985-1986 fiscal year. The establishment of new requirements for the purchasing division of the Department of Management and Budget to follow in negotiating and awarding all state contracts is not directly related to the principal object of this appropriation act.

"It is possible, however to read 1985 PA 104, Sec. 105, to apply only to the contracts which will be funded with appropriations contained in the Act. Such a construction is a reasonable and permissible interpretation in the absence of legislative command that 1985 PA 104, Sec. 105, shall apply to all state contracts. Courts are obligated to save legislation from unconstitutionality wherever possible by observing a reasonable and permissible interpretation. Fritts v Krugh, 354 Mich 97 114; 92 NW2d 604 (1958), Lichtman v Detroit, 75 Mich App 731; 255 NW2d 750 (1977), People v Gilliam, 108 Mich App 695; 310 NW2d 843 (1981).

"In the event the Legislature desires to make such a requirement applicable to all state contracts, appropriate legislation will have to be enacted. Moreover, 1985 PA 104, Sec. 105 is effective only for the fiscal year ending September 30, 1986."

It is my opinion, therefore, that 1986 PA 213, Sec. 30, construed to apply only to those expenditures funded by appropriations contained in 1986 PA 213, Sec. 1, does not violate Const 1963, art 4, Sec. 25.

Frank J. Kelley

Attorney General


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