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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. 6487 January 14, 1988 LEGISLATURE: Senate Fiscal Agency governing board subject to Open Meetings Act OPEN MEETINGS ACT: Application to Senate Fiscal Agency governing board The governing board of the Senate Fiscal Agency is a public body subject to the provisions of the Open Meetings Act. Honorable William Faust State Senator The Capitol Lansing, Michigan 48909 You have requested my opinion on the question of whether the Open Meetings Act, 1976 PA 267; MCL 15.261 et seq; MSA 4.1800(11) et seq, applies to the Senate Fiscal Agency. The Legislative Council Act, 1986 PA 268, Sec. 501(1); MCL 4.1501; MSA 2.138(501), provides for the creation of the Senate Fiscal Agency and the agency's governing board: "There is created a nonpartisan agency to be known as the senate fiscal agency to be of service to the appropriations committee of the senate and other members of the senate. The senate fiscal agency shall be governed by a board of 5 members, including the majority and minority leaders of the senate, the chairperson of the appropriations committee of the senate and 2 other members of the appropriations committee of the senate to be appointed by the chairperson of the appropriations committee with the concurrence of the majority leader of the senate, 1 from the minority party." MCL 4.1501; MSA 2.138(501). Pursuant to its mandate to "be of service to the appropriations committee and other members of the senate," the Senate Fiscal Agency's responsibilities include providing technical, analytical, and preparatory support for all appropriations bills considered by the Senate Appropriations Committee, and analyses of all bills and administrative rules considered by the Legislature. In addition, the Senate Fiscal Agency reviews and evaluates programs and services supported by the state, provides revenue analysis and economic forecasting services for the Senate, monitors intergovernmental relations between federal-state and state-local governments, monitors state issuance of long-term and short-term debt, and reviews state capital outlay programs for the Joint Capital Outlay Subcommittee. As distinguished from the responsibilities of the Senate Fiscal Agency, the agency's governing board has authority under the Legislative Council Act to "discipline, transfer, demote, suspend, or summarily discharge an employee" of the Senate Fiscal Agency. MCL 4.1501(4); MSA 2.138(501)(4). The governing board is also empowered to appoint the director of the Senate Fiscal Agency, to make final decisions as to the hiring and firing of personnel within the agency, to authorize salary and merit increases, and to determine the policies and procedures for the operation of the Senate Fiscal Agency. The Open Meetings Act generally requires, subject to limited exceptions, that meetings of a "public body" be open to the public. MCL 15.263(1); MSA 4.1800(13)(1). Section 2(a) of the Open Meetings Act defines a "public body" as: "any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function,...." MCL 15.262(a); MSA 4.1800(12)(a). Whether a body falls within the above definition of "public body" depends upon the nature of that body. A number of previous Attorney General opinions have distinguished between bodies that are advisory in nature, capable only of making recommendations concerning the exercise of governmental authority, and bodies which exercise decision-making and policy-making authority. For example, OAG, 1977-1978, No 5183, pp 21, 40 (March 8, 1977), concluded that: "the act does not apply to committees and subcommittees of public bodies which are merely advisory or only capable of making 'recommendations concerning the exercise of governmental authority.' These bodies are not legally capable of rendering a 'final decision.' " See also OAG, 1981-1982, No 6053, p 616 (April 13, 1982). On the other hand, OAG, 1977-1978, No 5256, p 329 (January 23, 1978), considered the question of whether watershed councils are subject to the requirements of the Open Meetings Act and concluded that, insofar as watershed councils are empowered to direct the expenditures of public money in carrying out their functions, the councils are legally capable of rendering final decisions on matters affecting the public and are not merely advisory in nature. Consequently, watershed councils are public bodies performing a governmental function within the meaning of the Open Meetings Act. Examination of the powers of the governing board of the Senate Fiscal Agency, as set forth above, indicates that the board is not merely advisory in nature, but rather, is a decision-making and policy-making body responsible for administering the Senate Fiscal Agency. Under the Legislative Council Act, the governing board of the Senate Fiscal Agency is vested with final decision-making authority with regard to personnel matters within the Senate Fiscal Agency. In addition, the board determines the policies and procedures for the operation of the Senate Fiscal Agency. It is my opinion, therefore, that the governing board of the Senate Fiscal Agency is a "public body" within the meaning of Sec. 2(a) of the Open Meetings Act and is subject to the requirements of that Act. Frank J. Kelley Attorney General
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