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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. 6546

November 4, 1988

CONSTITUTIONAL LAW:

Const 1963, art 9, Sec. 29--new or increased services of local correctional facilities

CORRECTIONAL INSTITUTION:

Standards for certification of local correctional officers

The Correctional Officers Training Act of 1982 does not require local correctional officers to be certified by the Commission of Corrections.

The Correctional Officers Training Act of 1982 has imposed no new or increased activities or services upon local units of government necessitating state funding under Const 1963, art 9, Sec. 29.

Robert Brown, Jr.

Director

Department of Corrections

Stevens T. Mason Building

Lansing, Michigan

You have requested my opinion on two questions relating to the formulation of minimum standards and requirements for certification of local correctional officers, as provided for by the Correctional Officers Training Act of 1982 (COTA), 1982 PA 415, MCL 791.501 et seq; MSA 28.2355(1) et seq.

Your first question asks whether 1982 PA 415 violates Const 1963, art 9, Sec. 29, commonly referred to as the Headlee Amendment, by requiring, in the absence of state funding, minimum standards and requirements for the certification of local correctional officers to be established by the Correctional Officers Training Council created pursuant to MCL 791.503; MSA 28.2355(3).

MCL 791.502(f) and (g); MSA 28.2355(2)(f) and (g), define the two distinct groups of correctional officers for purposes of COTA as follows:

"(f) 'Local correctional officer' means any person employed by a unit of local government in a correctional facility as a correctional officer, or that person's immediate supervisor.

"(g) 'State correctional officer' means any person employed by the department in a correctional facility as a correctional officer or a corrections medical aide, or that person's immediate supervisor."

MCL 791.509; MSA 28.2355(9), mandates that a person shall not be a state correctional officer unless he or she is certified by the Commission of Corrections. There is no comparable language in COTA which commands that local correctional officers meet certain standards and requirements for certification in order to be employed as local correctional officers. The only reference to standards and requirements for certification of local correctional officers in COTA is contained in MCL 791.514; MSA 28.2355(14), which provides:

"Not later than 3 years after the effective date of this act, the council shall develop minimum standards and requirements for certification, recertification and decertification of local correctional officers."

While MCL 791.514; MSA 28.2355(14), plainly requires that the Correctional Officers Training Council establish standards and requirements for the certification of local correctional officers, the Legislature has not specified that local correctional officers be certified as a condition of employment as is required of state correctional officers in MCL 791.509; MSA 28.2355(9).

It is noted that the Department of Corrections has been given the responsibility to establish and fund with moneys appropriated by the Legislature a central training academy for state and local correctional officers. MCL 791.515; MSA 28.2355(15). Further, 1982 PA 302, MCL 18.421 et seq; MSA 3.519(101) et seq, provides for the Michigan Justice Training Commission and Michigan Justice Training Fund. The Department of Corrections has obtained grants from the Michigan Justice Training Fund to aid local units of government in utilizing the training available to local correctional officers. These grants provide varying amounts of financial assistance relating to food, lodging and travel expenses for local correctional officers who attend the training programs offered.

The training of local correctional officers is offered without charge to the local units of government. Financial assistance is also available in the form of grants to lessen the expenses of attending such training. These serve as an inducement for local units of government to take advantage of such training. Such inducements cannot, however, be construed as a mandate that local correctional officers meet the standards and requirements for certification when the language of COTA contains no such requirement.

Examination of the legislative history of COTA confirms the conclusion that the standards and requirements for certification of local correctional officers were not intended to be mandatory requirements.

1982 Journal of the House 1454 reveals that the Committee on Corrections recommended the following amendment to 1982 HB 5475:

"2. Amend page 8, following line 7, by inserting:

"Sec. 15. If a county, acting through its board of commissioners by resolution, approves the minimum standards and requirements developed under section 14 for certification and recertification of local correctional officers, that approval constitutes an exercise of the county's option to provide a new activity or service or to increase the level of an activity or service offered in the county beyond that required by existing law, as the elements of that option are defined by Act No. 101 of the Public Acts of 1979, being sections 21.231 to 21.244 of the Michigan Compiled Laws, and a voluntary acceptance by the county of all expenses which may result from certification and recertification of local correctional officers."

The amendment was not adopted. 1982 Journal of the House 1923, 1966. While the proposed amendment may have represented an attempt to secure voluntary compliance by counties as provided in 1979 PA 101, Sec. 4(5)(h); MCL 21.234(5)(h); MSA 5.3194(604)(5)(h), the implementation statute for Const 1963, art 9, Sec. 29, COTA imposes no duty whatsoever upon local governmental units to provide new or increased activities or services implicating Const 1963, art 9, Sec. 29.

It is also noted that House Legislative Analysis, HB 5475 (February 7, 1983), stated:

"The bill would create a new act that would establish a correctional officers' training council and a central training academy for correctional officers. It would establish minimal statutory prerequisites for employment as a state correctional officer and would mandate the council to establish more detailed standards for state and local officers."

It is my opinion, in answer to your first question, that the Correctional Officers Training Act of 1982 does not require that local correctional officers be certified.

Turning to your second question, 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."

As indicated in the analysis in the answer to your first question, COTA imposes no new or increased activities or services upon local governmental units. Const 1963, art 9, Sec. 29, therefore, is not implicated.

It is my opinion, in answer to your second question, that the Correctional Officers Training Act of 1982 does not impose new or increased activities or services upon local units of government requiring state funding under Const 1963, art 9, Sec. 29.

Frank J. Kelley

Attorney General


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