STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6504

March 4, 1988

EMPLOYEE RIGHT TO KNOW ACT:

Personnel record of a public officer

PUBLIC OFFICERS:

Worker's compensation magistrate a public officer

WORKER'S DISABILITY COMPENSATION:

Magistrates--confidentiality of surveys, comments or information as to performance

Worker's compensation magistrates are state officers.

Surveys, comments, and other information received by the Qualifications Advisory Committee in its performance evaluation of worker's compensation magistrates are confidential and exempt from disclosure under the Freedom of Information Act and are not subject to release as personnel records under the Bullard-Plawecki Employee Right to Know Act.

Ms. Elizabeth P Howe

Director

Department of Labor

309 North Washington

Lansing, Michigan 48909

You have requested my opinion as to whether surveys, comments, or other information concerning worker's compensation magistrates which are received by the Qualifications Advisory Committee under the Worker's Disability Compensation Act of 1969, 1969 PA 317, Sec. 212, as added by 1985 PA 103, MCL 418.212; MSA 17.237(212), may be held confidential.

The Legislature created the Qualifications Advisory Committee pursuant to Act 317, Sec. 209, as added by 1985 PA 103, MCL 418.209; MSA 17.237(209). Among the duties assigned to the committee is the performance evaluation of the worker's compensation magistrates as set forth in Act 137, Sec. 212(1), which provides, in pertinent part:

Act 317, Sec. 212(1)(g), provides that such evaluations are to be based, in part, upon a review of:

In addition, Act 317, Sec. 212(2), sets forth the following duties of the Qualifications Advisory Committee:

Your letter suggests that the surveys and comments are confidential and exempt under the Freedom of Information Act (FOIA), 1976 PA 442, MCL 15.231 et seq; MSA 4.1801(1) et seq, but 'there may be other laws or regulations which would prevent such surveys or comments from being held strictly confidential.'

As to FOIA, your conclusion of confidentiality is correct--the Legislature has in Act 317, Sec. 212(1)(g), specifically exempted this information from disclosure under FOIA.

However, Act 317, Sec. 212(1)(g), does not exempt this information from any other law or regulation which may require disclosure. My review of Michigan law reflects only one other relevant statute concerning disclosability of this information, namely, the right of access to personnel information by an employee from his/her employer pursuant to the Bullard-Plawecki Employee Right to Know Act, 1978 PA 397, MCL 423.501 et seq; MSA 17.62(1) et seq (hereinafter Act 397).

While it is clear that the state is an employer under Act 397, Sec. 1(2)(b), it is essential to determine whether a magistrate is an employee as contemplated under Act 397, Sec. 1(2)(a), which provides:

A determination of whether a worker's compensation magistrate is an employee under Act 397 compels an examination of the terms of 'public officer' and 'public employee' and a conclusion as to which of these two categories the magistrate belongs.

The Legislature and courts of this state have long recognized the distinctions between the terms 'public officer' and 'public employee' and it is clear that the terms are not interchangeable. OAG, 1983-1984, No 6253, p 399, 400-401 (October 25, 1984), in discussing the distinctions between a public officer and public employee, reiterated the essential elements of a public officer viz-a-viz a public employee:

See also Burnett v Moore, 111 Mich App 646, 649; 314 NW2d 458 (1981).

The Worker's Compensation Board of Magistrates was created by the Legislature as an autonomous entity in the Department of Labor consisting of 30 member-magistrates appointed by the Governor with the advice and consent of the Senate pursuant to Act 317, Sec. 213(1), MCL 418.213(1); MSA 17.237(213)(1). This fulfills the first requirement that the office be created by constitution or the Legislature. The position of magistrate carries with it the delegation of a portion of the sovereign power of government in that the magistrate is primarily responsible for hearing and deciding contested claims for worker's disability compensation benefits filed by members of the public. Further, in deciding such claims, the magistrate is required to prepare a concise written opinion including findings of fact and conclusions of law. Act 317, Sec. 847, MCL 418.847; MSA 17.237(847). 'The decision of a workers' compensation magistrate will, however, stand as the decision of government, and will not be reviewable de novo.' Civil Service Comm v Dept of Labor, 424 Mich 571, 613; 384 NW2d 728 (1986). Therefore, both the second and third requirements of the criteria are fulfilled. The decision entered by a worker's compensation magistrate is subject to appellate review for errors of law and whether it is supported by substantial evidence on the whole record. Civil Service Comm v Dept of Labor, 424 Mich at 620-623. Thus, the fourth requirement is satisfied. Lastly, the position possesses permanency and continuity in that the persons appointed to these positions are appointed for a definite period of time. Act 317, Sec. 213(1). Thus, based upon the foregoing, a worker's compensation magistrate is a public officer.

It is my opinion, therefore, that a worker's compensation magistrate is a public officer. It is my further opinion that the surveys and comments received by the Qualifications Advisory Committee in its performance evaluation of a worker's compensation magistrate are confidential and exempt from disclosure under the Freedom of Information Act and are not subject to release as personnel records under the Bullard-Plawecki Employee Right to Know Act.

Frank J. Kelley

Attorney General