STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6472

October 6, 1987

APPROPRIATIONS:

Provision transferring general fund appropriations made in other acts as intent to make future supplemental appropriations

GOVERNOR:

Veto power over provision evincing intent to make future supplemental appropriations

1987 PA 125, Sec. 14, does not contain an appropriation by the Legislature from moneys available in the general fund and merely evinces an intent to make future supplemental appropriations.

The Governor may not veto a provision that merely evinces an intent to make a future supplemental appropriation.

Honorable Harry Gast

State Senator

The Capitol

Lansing, Michigan 48913

You have requested my opinion on the following questions:

1987 PA 125, Sec. 1, makes appropriations for the Department of Social Services and for public welfare services purposes for the fiscal year ending September 30, 1988 in the adjusted gross amount of $4,391,002,700 from the following funds: federal revenues, $2,106,101,100; private revenue funds, $160,803,000; local revenue funds, $97,121,800; and the state general fund, $2,026,976,800.

Section 14 of 1987 PA 125 provides:

1987 PA 125, Sec. 14, is not a new provision. Substantially similar provisions for transfer to the Department of Social Services of unexpended general fund appropriations for state government may be found in 1986 PA 134, Sec. 14, and in 1984 PA 246, Sec. 127, the appropriation acts for the respective ensuing fiscal year. The Department of Management and Budget advises that no unexpended funds were made available from other state appropriation acts for the respective fiscal year to fund aid to families with dependent children, general assistance, and medical assistance programs under either Act.

It is also noted that 1985 PA 111, Sec. 149, created a contingency fund from unexpended appropriations for the Department of Social Services only, to be used proportionately for aid to families with dependent children, general assistance and medical assistance programs if the programs exceed the levels used to develop the appropriation and 1983 PA 171, Sec. 78, authorized the use of certain funds appropriated therein for caseload contingency account purposes for use for general assistance and ADCF programs if the number of cases rose beyond the estimated caseloads.

The meaning and intent of the Legislature in the enactment of 1987 PA 125, Sec. 14(1), is not entirely clear since it is susceptible to three different interpretations: (1) the Legislature has authorized the transfer of unexpended balances of appropriations from the general fund from the respective appropriations acts for state government listed above at any time during the 1987-1988 fiscal year when expenditures for such purposes exceed the appropriations made in 1987 PA 125, Sec. 1, for such purposes due either to average payments or caseloads exceeding the estimates upon which the appropriations in Sec. 1 are based, (2) the transfer of such unexpended general fund appropriations may only be made at the end of the 1987-1988 fiscal year when unexpended funds may be determined with any finality, and (3) merely an intent to appropriate moneys for such purposes from the general fund should the need arise.

Where the language of a statute is ambiguous, the intent of the Legislature should be ascertained in light of the evident purpose of the statute. Oakland County v. State Land Office Bd, 296 Mich 368, 374; 296 NW 292 (1941). Unclear statutory wording should be interpreted in the most reasonable manner to effect the legislative purpose. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich 184, 190; 253 NW2d 646 (1977). A statute should be construed in a manner to preserve, if possible, its constitutionality. Workman v. Detroit Automobile Inter-Insurance Exchange, 404 Mich 477, 507; 274 NW2d 373 (1979).

Unlike 1987 PA 125, Sec. 1, which makes appropriations from specified funds, including the general fund, Sec. 14 purports to appropriate $22,764,400 in federal funds and an amount up to $37,407,400 not from moneys presently in the general fund, but rather, from unexpended general fund/general purpose appropriations authorizations for state government contained in other appropriations acts for the fiscal year ending September 30, 1988.

General fund/general purpose appropriations authorized for state government for the 1987-1988 fiscal year are contained in 1987 PA 131, Sec. 1, for the legislative branch, judicial branch, the executive office, and the Departments of Attorney General, Civil Service, Civil Rights, Management and Budget, State, and Treasury. Similarly, appropriations from such fund are made in 1987 PA 139, Sec. 1, for colleges and universities, in 1987 PA 137, Sec. 1, for community and junior colleges, in 1987 PA 133, Sec. 1, for the Department of Education, in 1987 PA 126, Sec. 1, for the Department of Agriculture, in 1987 PA 127, Sec. 1, for the Departments of Commerce, Labor, and Licensing and Regulation, in 1987 PA 132, Sec. 1, for the Department of Mental Health, in 1987 PA 140, Sec. 1, for the Department of Military Affairs, in 1987 PA 130, Sec. 1, for the Department of Public Health, and in 1987 PA 129 for the Department of State Police.

A review of the enumerated appropriations acts reveals no provision in any of them to authorize and to spell out the method for the transfer of any unexpended moneys appropriated therein from the general fund to the Department of Social Services upon any contingency. Nor do the titles to the respective appropriations acts give notice thereof to the members of the Legislature and the people of such transfers to the Department of Social Services.

The power of the Legislature to appropriate moneys from the general fund is not open to question. Similarly, the Legislature may amend an appropriation act to reduce the amount of appropriations made from the general fund in that act. Having appropriated moneys from the general fund for state government in 1987 PA 131, 126, 139, 137, 133, 132, 140, 129, 127, and 130, the Legislature may not reappropriate any portion of those funds, however worthy the purpose, without amending the respective appropriation act in compliance with Const 1963, art 4, Secs. 24 and 25.

In Const 1963, art 4, Sec. 24, the people have provided:

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

If one or more of the appropriations acts for state government for the fiscal year ending September 30, 1988 is to have its general fund appropriations reduced during the fiscal year so as to make the funds available for aid to families with dependent children, general assistance, and medical assistance programs, the Legislature must re-enact and publish the line item or items subject to reduction in compliance with Const 1964, art 4, Sec. 25. Further, the title to such amendatory legislation must provide the requisite notice of the intended amendment to the members of the Legislature and the people in conformity with Const 1963, art 4, Sec. 24.

1987 PA 125, Sec. 14, speaks of the transfer of unexpended funds in various appropriations acts for state government to the Department of Social Services for aid to families with dependent children, general assistance, and medical assistance program purposes. It does not contain any mechanism for selecting the particular general fund appropriation line item in any particular appropriation act for such transfer. It imposes no duty on any state officer or board to make the transfer.

The Legislature has authorized the State Budget Director to make "transfers of appropriations within any department" as provided in 1984 PA 431, Sec. 393, MCL 18.1393; MSA 3.516(393). (Emphasis added.) Transfers between departments are authorized only "for federal and other restricted flow-through funds when funds are appropriated in the budget of both departments." MCL 18.1393(7); MSA 3.516(393)(7). The State Budget Director is prohibited from making transfers between items appropriated, except as authorized in 1984 PA 431, Sec. 393. MCL 18.1393(9); MSA 3.516(393)(9).

A study of the provisions of the Management and Budget Act, 1984 PA 431, indicates that the State Budget Director is the only state officer empowered to make transfer between items appropriated, and such transfers must be permitted by 1984 PA 431, Sec. 393. No authority is contained therein which would authorize general fund appropriations transfers between 1987 PA 131, 1987 PA 139, 1987 PA 137, 1987 PA 133, 1987 PA 126, 1987 PA 127, 1987 PA 132, 1987 PA 140, 1987 PA 130, and 1987 PA 129 and 1987 PA 125, Sec. 14.

Because the Legislature, by means of 1987 PA 125, Sec. 3, made the appropriations contained in 1987 PA 125 expressly subject to all the provisions of 1984 PA 431, MCL 18.1101-18.1594; MSA 3.516(101)--3.516(594), it was aware that the State Budget Director could not order such transfers.

Nor may a grant of such authority in the State Budget Director be implied in 1987 PA 125, Sec. 14. If the Legislature intended to confer such authority by implication, thereby amending 1984 PA 431, Sec. 393, such an amendment would add a second purpose to 1984 PA 125 contrary to Const 1963, art 4, Sec. 24, OAG, 1981-1982, No. 5930, p 245 (July 1, 1981); see also, OAG, 1985-1986, No 6337, p 215 (January 22, 1986), and amend 1984 PA 431, Sec. 393, without re-enacting and publishing the statute as required by Const 1963, art 4, Sec. 25. OAG, 1981-1982, No 5951, p 304 (August 10, 1981); OAG, 1985-1986, No 6325, p 177 (December 11, 1985).

The inherent constitutional infirmities in a construction of 1987 PA 125, Sec. 14(1), which would permit transfer at any time during the fiscal year between the general fund appropriation items in the enumerated appropriation acts for state government and the general fund item contemplated by 1987 PA 125, Sec. 14(1), requires the rejection of such a construction, for it cannot pass constitutional muster.

The second interpretation would construe 1987 PA 125, Sec. 14(1), to require transfer of unexpended general fund appropriations of state government at the end of the 1987-1988 fiscal year made expressly subject, inter alia, to the lapse provisions of the Management and Budget Act, 1984 PA 431, Sec. 451, MCL 18.1451; MSA 3.516(451), which requires the unencumbered balance of each general fund appropriation in each of the aforesaid appropriations acts for state government for the fiscal year ending September 30, 1988 to lapse to the general fund from which appropriated at the end of the 1987-1988 fiscal year. The Legislature may not amend that statute without re-enacting and publishing it in conformity with Const 1963, art 4, Sec. 25. If it was the intent of the Legislature to do so by implication in 1987 PA 125, Sec. 14, it would add a second purpose to 1987 PA 125 contrary to Const 1963, art 4, Sec. 24.

Moreover, the appropriations from the general fund for state government in each of the above enumerated acts contain express provision that they are subject to the Management and Budget Act, 1984 PA 431, MCL 18.1101 et seq; MSA 3.516(101) et seq. (See, e.g., 1987 PA 131, Sec. 3.) In this regard, the Department of Management and Budget advises that the amount of unexpended balances of general fund appropriations for state government in the respective current appropriations acts may not be finally determined until three months after the close of the 1987-1988 fiscal year, or approximately January 1, 1989. 1984 PA 431, Sec. 451, MCL 18.1451; MSA 3.516(451), expressly requires the lapsing of every unencumbered balance of each general fund appropriation into the general fund "at the close of the fiscal year." (Emphasis added.) Under the second construction, assuming the transfers were lawful, 1987 PA 125 would have expired by its own terms by the time the transfers were effected and there would be no authority to expend such funds. The second construction must also be rejected because of its constitutional infirmities.

A third possible construction of 1987 PA 125, Sec. 14, which will pass constitutional scrutiny is to read its provisions as evincing merely an intent to make supplemental appropriations in the event that the moneys appropriated in 1987 PA 125, Sec. 1 for aid to families with dependent children, general assistance and medical assistance programs prove insufficient to meet needs of these programs. Traditionally, the Legislature has passed supplemental appropriations, in its discretion, to meet unanticipated needs. This construction is to be favored.

The authority of the Governor conferred by the people in Const 1963, art 4, Sec. 33, applies to approval or disapproval of "distinct items" containing appropriations in appropriations bills. Wood v. State Administrative Bd, 255 Mich 220; 238 NW 16 (1931). It does not extend to a provision stating an intent to make future supplemental appropriations.

Applying the third analysis, it is my opinion, in answer to your first question, that 1987 PA 125, Sec. 14, does not contain an appropriation by the Legislature from moneys available in the general fund and merely evinces an intent to make future supplemental appropriations. It is my further opinion that the Governor may not veto a provision that merely evinces an intent to make a future supplemental appropriation.

In light of the answer to your first question, answer to your remaining two questions is unnecessary.

Frank J. Kelley

Attorney General