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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. 6486 January 7, 1988 CONSTITUTIONAL LAW: Const 1963, art 9, Sec. 29--state funding of new activity or service of a municipal fire department Const 1963, art 9, Sec. 29, does not require that the state reimburse a municipal fire department for sums expended in compliance with Sec. 14i of the Michigan Occupational Safety and Health Act to formulate a plan for executing the fire department's responsibilities with respect to each site within the fire department's jurisdiction where hazardous chemicals are used. Honorable Christopher D. Dingell State Senator The Capitol Lansing, MI 48909 Honorable Harry Gast State Senator The Capitol Lansing, MI 48909 You have inquired as to whether Const 1963, art 9, Sec. 29, requires that the state reimburse a municipal fire department for sums expended to comply with Sec. 14i of the Michigan Occupational Safety and Health Act, 1974 PA 154, as last amended by 1986 PA 80, MCL 408.1001 et seq; MSA 17.50(1) et seq, hereafter MIOSHA. MCL 408.1014i; MSA 17.50(14i), provides: "The chief of each organized fire department shall prepare and disseminate to each fire fighting employee of the organized fire department a plan for executing the department's responsibilities with respect to each site within the organized fire department's jurisdiction where hazardous chemicals are used or produced." Const 1963, art 9, Sec. 29, provides: "The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of Local Government by state law. A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs. The provision of this section shall not apply to costs incurred pursuant to Article VI, Section 18." (Emphasis added.) In order for a unit of local government to be compensated for complying with Sec. 14i, it must be determined whether a new activity or service or an increase in service required by existing law is involved. The question of whether fire protection services are required by state law was decided in City of Ann Arbor v Michigan, 132 Mich App 132; 347 NW2d 10 (1984), where the Court of Appeals determined that firefighting is not an activity or service required by state law. The Court of Appeals, in City of Ann Arbor, relied upon MCL 21.234(5)(h); MSA 5.3194(604)(5)(h), one of the statutory provisions implementing the so-called Headlee Amendment, and pointed out that a statute or rule allowing a local unit of government to perform an activity or service, but not requiring it, is not a "requirement of state law." The language of Sec. 14i of MIOSHA would appear to be a mandate to the chief of each organized fire department. However, as noted in City of Ann Arbor at 136, there is no state law requiring that a municipality have a fire department: "Nothing in the Act [the home rule cities act, MCL 117.1 et seq; MSA 5.2071 et seq], however, specifically requires that home rule cities provide fire protection. Indeed, fire protection has long been considered a purely local matter. Davidson v Hine, 151 Mich 294; 115 NW 246 (1908). This conclusion is also supported by other statutes which recognize that it is optional for cities to have fire departments." Citing City of Ann Arbor, the Court of Appeals in Saginaw Firefighters Ass'n, Local 422, Int'l Ass'n of Firefighters, AFL-CIO v City of Saginaw, 137 Mich App 625, 630; 357 NW2d 908 (1984), ruled: "[S]tate law does not require that fire protection be provided by a municipal corporation." Cities are authorized by statute to provide fire protection, but are not required to do so. Thus, Const 1963, art 9, Sec. 29, does not require that the state reimburse a municipal fire department for sums expended to comply with section 14i of the Michigan Occupational Safety and Health Act because state law does not require that fire protection be provided by a municipal corporation. It is my opinion, therefore, that Const 1963, art 9, Sec. 29, does not require that the state reimburse a municipal fire department for sums expended in compliance with Sec. 14i of the Michigan Occupational Safety and Health Act to formulate a plan for executing the fire department's responsibilities with respect to each site within the fire department's jurisdiction where hazardous chemicals are used. Frank J. Kelley Attorney General
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