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. 6707

December 12, 1991

CONSTITUTIONAL LAW: Const 1963, art 4, Sec. 22--requirements for legislation

Const 1963, art 4, Sec. 33--Executive veto

Const 1963, art 5, Sec. 19--Executive line item veto

Const 1963, art 9, Sec. 17--Requirements for payment out of the state treasury

A partial veto restoration may not be accomplished without the enactment of a supplemental appropriation bill.

Where the Governor vetoes the only item of appropriation for a program and the Legislature does not re-pass the item as prescribed in Const 1963, art 4, Sec. 33, there is no item of appropriation from which payment may be made to state employees working in the program after the October 1, 1991, start of the new fiscal year.

Where the Governor vetoes the only item of appropriation for a program and the Legislature does not re-pass the item in accordance with Const 1963, art 4, Sec. 33, there is no line item of appropriation from which payment may be made to persons or entities providing services or supplies purchased and provided after the October 1, 1991, start of the new fiscal year.

1991 PA 109 through 1991 PA 111, and 1991 PA 113 through 1991 PA 126, became effective on October 11, 1991.

The Governor may veto a line item in an appropriation bill by marking his disapproval of the item on the bill after he has signed the bill but prior to it being filed with the Secretary of State.

Monies appropriated from the horse racing revenue special funds and vetoed by the Governor, unless the vetoed items are re-passed by the Legislature in accordance with Const 1963, art 4, Sec. 33, remain in the special funds and do not lapse into the general fund at the conclusion of the 1991-1992 fiscal year. These funds may be expended only in accordance with future appropriations made by law.

Whether certain provisions in the State School Aid Act of 1979 are invalid appropriations because they were not reenacted in Enrolled HB 4572 has been answered in Letter Opinion of the Attorney General to Senator DeGrow and Representative O'Neill, dated December 3, 1991.

The question of whether, pursuant to 1991 PA 111, the Department of Social Services may expend funds from the "County emergency and medical care block grant" line item to provide for a state-operated emergency needs program has become moot.

1987 PA 266 does not require the State to provide funding for the Wayne County patient care management system for the 1991-1992 fiscal year.

The Department of Social Services does not have the legal authority to make payments for the disability and family assistance programs at the lower level in effect for the general assistance program on September 1, 1991, rather than at the higher level in effect on January 1, 1991.

The question of whether the grant levels the Department of Social Services provides for Aid to Families with Dependent Children will jeopardize the approval of pending amendments to the Medicaid State Plan by the United States Department of Health and Human Services has become moot.

Department of Social Services payment of higher Medicaid reimbursement rates for county medical care facilities than for private nursing homes is compelled by a federal court order.

Optional Medicaid services may be funded in the 1991-1992 fiscal year pursuant to 1991 PA 111.

The vetoes of section 214, subsections (b), (d), (g) and (i) of SB 225 are valid. The veto of section 214, subsection (a) of SB 225, as it applies only to the program for "Training only to local units", is valid. The vetoes of section 214, subsection (a) as it applies to other "Law enforcement officers training council" programs and the vetoes of subsections (c), (e), (f) and (h) of section 214 of Enrolled SB 225 are invalid.

Honorable Lewis N. Dodak

Speaker of the House

The Capitol

Lansing, Michigan

Honorable Dominic Jacobetti

Chair of House Appropriations

The Capitol

Lansing, Michigan

You have asked fourteen questions, many of which relate to the Governor's veto of certain portions of appropriation bills for the 1991-1992 fiscal year.

Your first question may be stated as follows:

May partial veto restorations be accomplished without the enactment of a supplemental appropriation bill?

The veto by the Governor of an item of appropriation setting forth a specific purpose and setting aside a specific sum of money for that purpose, whether in an individual line of the appropriation act or within a paragraph, unless re-passed by the Legislature in accordance with Const 1963, art 4, Sec. 33, makes the item of appropriation void and without force or effect. OAG, 1977-1978, No 5394, p 695, 696 (November 29, 1978); OAG, 1989-1990, No 6562, p 24, 26 (January 24, 1989).

Under Const 1963, art 4, Sec. 22, "[a]ll legislation shall be by bill." Pursuant to Const 1963, art 9, Sec. 17, "[n]o money shall be paid out of the state treasury except in pursuance of appropriations made by law." Thus, the only method of partial restoration of an amount in an appropriation bill which has been vetoed by the Governor and not re-passed by the Legislature under Const 1963, art 4, Sec. 33, would be by enacting a supplemental appropriation bill.

It is my opinion, in answer to your first question, that a partial veto restoration may not be accomplished without the enactment of a supplemental appropriation bill.

Your second question may be stated as follows:

Out of what line item appropriation may state employees who were previously working in programs that have been line item vetoed be paid after the October 1, 1991, start of the new fiscal year?

In all, the Governor vetoed items in fourteen appropriation bills for the fiscal year ending September 30, 1992. Since your request does not identify a specific program in a specific appropriation bill vetoed by the Governor, our analysis will be general.

As stated above, the veto by the Governor of an item of appropriation, whether in an individual line of the appropriation act or within a paragraph, unless re-passed by the Legislature in accordance with Const 1963, art 4, Sec. 33, makes the item of appropriation void and without force or effect. OAG, No 5394, supra, at p 696.

Const 1963, art 9, Sec. 17, proscribes the payment of any money "out of the state treasury except in pursuance of appropriations made by law." Applying the identical provision in Const 1908, art 10, Sec. 16, the court in Lewis v State, 352 Mich 422, 430 n 0 NW2d 856 (1958), stressed that "this constitutional mandate refers to and hinges upon appropriations made by law."

Payment to state employees for services rendered must be made from appropriated funds and if no appropriation has been enacted, no payment is authorized. 1 OAG, 1955, No 1946, p 66 (February 16, 1955). Moreover, MCL 18.1369; MSA 3.516(369), precludes any funding of vetoed items "from any other source without a new specific appropriation." Payment for such services may only be made upon certification that it is "within the scope of the appropriation to which charged, and is not in excess of the unexpended or unencumbered balance of the appropriation." MCL 18.1421(d); MSA 3.516(421)(d).

Assuming the only item of appropriation for a particular program was vetoed by the Governor, the Legislature has not re-passed the vetoed item as provided in Const 1963, art 4, Sec. 33, and the Legislature has not passed a supplemental appropriation for the program, there is no sum of money appropriated from which to pay state employees working in that program after the October 1, 1991, start of the new fiscal year.

It is my opinion, in answer to your second question, that where the Governor vetoes the only item of appropriation for a program and the Legislature does not re-pass the item as prescribed in Const 1963, art 4, Sec. 33, there is no item of appropriation from which payment may be made to state employees working in the program after the October 1, 1991, start of the new fiscal year.

Your third question may be stated as follows:

Out of what line item may providers and suppliers be paid for those services/supplies which were purchased and provided after the October 1, 1991, start of the new fiscal year for programs which have been eliminated as a result of an item veto?

As indicated in the answer to your second question, your letter of request does not identify any specific program in any specific appropriation bill vetoed by the Governor. Our analysis, therefore, must be general.

The same reasoning employed to answer your second question is applicable here. Where the Governor vetoes a line item in an appropriation bill for a program and the Legislature has not re-passed the vetoed item, the appropriation for the program is void and without force or effect. Const 1963, art 5, Sec. 19; OAG, No 5394, supra, at 696. In such event, there is no line item of appropriation from which payment may be made to providers and suppliers for services or supplies purchased and provided between October 1, 1991, and October 11, 1991, for the vetoed program. Also, MCL 18.1369; MSA 3.516(369), precludes any funding of vetoed items "from any other source without a new specific appropriation."

It is my opinion, in answer to your third question, that where the Governor vetoes the only item of appropriation for a program and the Legislature does not re-pass the item in accordance with Const 1963, art 4, Sec. 33, there is no line item of appropriation from which payment may be made to persons or entities providing services or supplies purchased and provided after the October 1, 1991, start of the new fiscal year.

Your fourth question may be stated as follows:

What is the effective date of the appropriation acts for the fiscal year ending September 30, 1992, signed into law by the Governor after October 1, 1991?

1991 PA 109 through 1991 PA 111, inclusive, and 1991 PA 113 through 1991 PA 126, inclusive, the appropriation acts for the fiscal year ending September 30, 1992, were signed by the Governor on October 11, 1991. The Governor exercised his authority to veto certain items in bills which he signed and which became 1991 PA 113 through 1991 PA 126, respectively. Each of these appropriation acts contains a provision giving it immediate effect rather than becoming effective only at the expiration of 90 days from the end of the legislative session at which these acts were passed. Const 1963, art 4, Sec. 27.

OAG, 1983-1984, No 6201, p 230 (January 30, 1984), considered a similar question in the context of an act given immediate effect by the Legislature. Quoting Const 1963, art 4, Sec. 33, which specifies that upon approval of the Governor, he shall "sign and file it with the secretary of state and it shall become law", the opinion concluded that a bill given immediate effect by the Legislature and signed by the Governor becomes law upon its filing with the Secretary of State.

Each of these 1991-1992 appropriation acts was signed by the Governor on October 11, 1991, and each was filed with the Secretary of State on October 11, 1991.

It is my opinion, in answer to your fourth question, that 1991 PA 109 through 1991 PA 111, and 1991 PA 113 through 1991 PA 126, became effective on October 11, 1991.

Your fifth question may be stated as follows:

May the Governor veto a line item in an appropriation bill by marking his disapproval of the item on the bill after he has signed the bill but prior to it being filed with the Secretary of State?

Const 1963, art 5, Sec. 19, allows the Governor to approve parts of an appropriation bill and to disapprove distinct items. It is axiomatic that a bill, or part of a bill, that becomes law is no longer subject to the Governor's veto. Therefore, the answer to this question turns on when a bill becomes law.

Const 1963, art 4, Sec. 33, provides the Governor "14 days measured in hours and minutes" to consider a bill. "If he approves, he shall within that time sign and file it with the secretary of state and it shall become law." The meaning of this sentence was considered in OAG, No 6201, supra. Giving the words of this sentence their usual and ordinary meaning, that opinion concluded that a bill signed by the Governor becomes law when it is filed with the Secretary of State.

It is noted that the constitutional convention debates suggest that the Governor's signing of the bill is the constitutionally operative act. See 1 Official Record, Constitutional Covention 1961, p 1720. However, the conclusion reached in OAG, No 6201, supra, is compelled by the primary rule of constitutional construction, that of "common understanding" described by Justice Cooley:

"A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. 'For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding ...' (Cooley's Const Lim 81)." (Emphasis added.)

Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971).

Moreover, the predecessor provision to Const 1963, art 4, Sec. 33, was Const 1908, art 5, Sec. 36, which provided: "If he approve, he shall sign it; if not, he shall return it ..." The requirement that the Governor "file it with the secretary of state" was a discrete addition in the 1963 Constitution and should be read so as to give effect to the additional words. Romano v Auditor General, 323 Mich 533, 539; 35 NW2d 701 (1949). Accordingly, it must be concluded that the Governor's power to disapprove an item in an appropriation bill continues until his authority to consider the bill ends by its being filed with the Secretary of State and becoming law or the 14 day period expires.

It is my opinion, in answer to your fifth question, that the Governor may veto a line item in an appropriation bill by marking his disapproval of the item on the bill after he has signed the bill but prior to it being filed with the Secretary of State.

Your sixth question may be stated as follows:

Assuming that the veto of a number of grants which are funded out of restricted funds, i.e. horse racing revenues, had the effect of preventing the appropriations from taking effect, will the restricted funds be carried forward as restricted funds or will they be lapsed into the general fund at the conclusion of the 1991-1992 fiscal year?

Enrolled SB 212, hereinafter SB 212, makes appropriations for the Department of Agriculture for the fiscal year ending September 30, 1992. In section 101, the Legislature sought to make certain grants in the total amount of $17,324,600, payable in part from horse racing revenue special funds, the general fund, and the private-oil company overcharge settlement monies. The Governor signed Enrolled SB 212 on October 11, 1991, but vetoed certain of the grants, totalling $11,749,600. Upon filing with the Secretary of State, it became 1991 PA 113.

The Racing Law of 1980, MCL 431.61 et seq; MSA 18.966(31) et seq, provides that all monies received by the Racing Commissioner shall be paid into the general fund of the state except certain monies received from racing license fees and specific taxes on all sums wagered on certain horse races and breaks shall be placed in special funds to be used for certain designated purposes. MCL 431.73; MSA 18.966(43). Among the special statutory funds established by MCL 431.73; MSA 18.966(43), are the thoroughbred racing special fund [subsections (5) and (10) ], and the standardbred racing special fund [subsections (4) and (9) ].

The special funds established are statutory funds and the monies from these funds must be appropriated annually by the Legislature in such amount or amounts as it may determine before they may be expended. OAG, 1983-1984, No 6216, p 277 (April 9, 1984); Const 1963, art 9, Sec. 17. Any appropriation of such special funds is, of course, subject to the item veto authority of the Governor in accordance with Const 1963, art 5, Sec. 19.

The grants vetoed by the Governor in SB 212, section 101, are "void and ineffective unless re-passed by two-thirds of the members of each house of the Legislature in the manner prescribed by Const 1963, art 4, Sec. 33." OAG, No 5394, supra, p 696. See also OAG, No 6562, supra, p 26. Unless re-passed by the Legislature, the vetoed appropriations are void, and the monies purported to be appropriated from the horse racing revenue special funds remain in those funds.

MCL 431.73; MSA 18.966(43), contains no provision for lapsing of horse racing revenue special funds into the general fund.

It is my opinion, in answer to your sixth question, that monies appropriated from the horse racing revenue special funds and vetoed by the Governor, unless the vetoed items are re-passed by the Legislature in accordance with Const 1963, art 4, Sec. 33, remain in the special funds and do not lapse into the general fund at the conclusion of the 1991-1992 fiscal year. It is my further opinion that these funds may be expended only in accordance with future appropriations made by law.

Your seventh question regarding whether certain provisions in the State School Aid Act of 1979, MCL 388.1601 et seq; MSA 15.1919(901) et seq, are invalid appropriations because they were not reenacted in Enrolled House Bill 4572 has been answered in Letter Opinion of the Attorney General to Senator DeGrow and Representative O'Neill, dated December 3, 1991, a copy of which is attached hereto.

Your eighth question dealt with whether the Department of Social Services may expend funds from the "County emergency and medical care block grant" line item to provide a state-operated emergency needs program under 1991 PA 111. That question has become moot by the passage of 1991 PA 139 which repealed the line item appropriation that was the subject of your question.

Your ninth question may be stated as follows:

Does 1987 PA 266 require the State to utilize county and emergency medical care block grant funds appropriated by 1991 PA 111 to provide a grant to Wayne County for indigent medical care?

1987 PA 266, MCL 400.66(j); MSA 16.466(10), authorizes counties to establish a patient care management system (PCMS) as an alternative method of administering general assistance medical care and county hospitalization services for indigent residents, which services are authorized under sections 55(k), 66a and 66i of the Social Welfare Act, MCL 400.55(k), 400.66a, 400.66i; MSA 16.455(k), 16.466(1), 16.466(9). Pursuant to MCL 400.66j(3); MSA 16.466(10)(3), a county with a patient care management system establishes rates of reimbursement for hospitals and other health care providers. The county then contracts with such hospitals and other health care providers for medical care of persons determined by the county to be eligible for such services. This office has been informed by the Department of Social Services that only Wayne County operates a PCMS.

Your question assumes that 1987 PA 266 requires the state to appropriate funds to Wayne County for the operation of the PCMS. 1987 PA 266 added sections 66j and 66n to the Social Welfare Act. A review of MCL 400.66n; MSA 16.466(14), reveals that "the state shall appropriate for fiscal year 1988-89" a sum of money to operate a PCMS in Wayne County. Although there are provisions requiring the county to maintain certain county funding ratios in relationship to the state appropriations, the statute does not purport to require the state to appropriate any funds to the Wayne County PCMS beyond 1988-89.

Even if 1987 PA 266 had contained language mandating the state to appropriate funds to Wayne County for the operation of the PCMS, such language would not be operative for succeeding years and would only indicate an intent to have a future Legislature appropriate funds for the program. In Bd of Educ of Oakland Schools v Superintendent of Public Instruction, 392 Mich 613, 620-621; 221 NW2d 345 (1974), the Michigan Supreme Court held:

Although the Michigan Legislature may at times place authorization provisions and appropriation provisions in the same bill, we believe that any provision that does not take initial effect during the ensuing fiscal year is intended to function only as an authorization--an intention to appropriate. The dynamics of the budget change from year to year on the basis of the revenues derived and the expenditures required by the people of Michigan. Responsible fiscal policy consequently also requires a yearly reassessment of revenues, spending goals and priorities. [Footnote deleted. Emphasis added.]

See also, Advisory Opinion on constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich 465, 499-502; 242 NW2d 3 (1976).

The question also appears to assume that the "County emergency and medical care block grant" program authorized by 1991 PA 111 was intended to include funding for the Wayne County PCMS. As noted above, 1991 PA 139 repealed the line item appropriation in 1991 PA 111 for the "County emergency and medical care block grant." That line item appropriation was replaced in 1991 PA 139 by two line item appropriations for an "Emergency needs program" and "Indigent medical care." Neither of these line items contains an appropriation for the Wayne County PCMS.

Historically, the funding for the Wayne County PCMS program has always been provided by means of a separate line item with supporting boilerplate. For example, section 101 of 1990 PA 200, the appropriations act for the Department of Social Services for the fiscal year ending September, 30, 1991, contained the following line item:

Wayne county patient care management system .. $39,275,500

The supporting boilerplate provision governing this line item was set forth in section 1303 of the Act as follows:

The department of social services may agree to provide certain administrative or payment functions, or both, on behalf of the Wayne county patient care management system as agreed to by the county and the department. If such an agreement is reached, the department shall withhold from the state share of the county patient care management system funds appropriated in section 101, an amount equal to the estimated cost to be incurred by the department, including accrued liability for services provided but not yet paid. These funds shall be available to the department of social services and shall be appropriated and allowed to the department as they are received. A final reconciliation of costs shall be completed by October, 1992. The county shall remain liable for any costs in excess of the amount withheld and shall be entitled to receive any funds remaining after a final expenditure reconciliation is completed.

Similarly, the 1989 Department of Social Services appropriations act, 1989 PA 200 appropriated $39,700,000 for the PCMS and contained virtually identical supporting boilerplate. See 1989 PA 200, sections 101 and 1303.

It is my opinion, in answer to your ninth question, that 1987 PA 266 does not require the State to provide funding for the Wayne County PCMS for the 1991-1992 fiscal year.

Your tenth question may be stated as follows:

Does the Department of Social Services have the legal authority to make payments for the disability and family assistance programs at the lower level in effect for the general assistance program on September 1, 1991, rather than at the higher level in effect on January 1, 1991?

Sections 805(3) and 816 of 1991 PA 111, the Department of Social Services appropriations act for the fiscal year ending September 30, 1992, respectively provide as follows:

Payment standards for the state disability assistance program shall be those that were in effect for the general assistance program on January 1, 1991. [Emphasis added.]

 

 

Family assistance shall be provided in instances where aid to families with dependent children eligibility could be met. The eligibility policies and payment standards in effect January 1, 1991 for general assistance families shall be utilized for determining family assistance eligibility and payments. [Emphasis added.]

It is evident from the above-quoted language that the Legislature has mandated that the grant levels for the disability and family assistance programs be based upon the levels that were in effect for the general assistance program on January 1, 1991. These provisions are in effect for fiscal year 1991-1992.

It is my opinion, in response to your tenth question, that the Department of Social Services does not have the legal authority to make payments for the disability and family assistance programs at the lower level in effect for the general assistance program on September 1, 1991, rather than at the higher level in effect on January 1, 1991.

Your eleventh question may be stated as follows:

If the Department of Social Services makes Aid to Families with Dependent Children (AFDC) payments below the level of payments in effect on May 1, 1988, will that jeopardize the approval of pending amendments to the Medicaid State Plan by the United States Department of Health and Human Services?

42 USC Sec. 1396a(c) of the Social Security Act states:

(c) Notwithstanding subsection (b), the Secretary shall not approve any State plan for medical assistance if--

(1) the State has in effect, under its plan established under part A of title IV, [42 USCS Secs. 601 et seq.], payment levels that are less than the payment levels in effect under such plan on May 1, 1988;

Part A of Title IV is the AFDC section of the Social Security Act.

42 USC Sec. 1396a(c) does not set a federal minimum AFDC grant level. Instead, this provision encourages states to maintain at least the May 1, 1988 AFDC grant levels by placing certain restrictions upon a state's ability to make changes to its Medicaid State Plan.

Recently in Babbitt v State of Michigan, (WD Mich), Docket No. 4:91-CV-56 on October 29, 1991, the Court held:

Section 1396a(c) does not prohibit the Defendants from reducing AFDC benefits, but merely provides for possible consequences should Defendants do so. Accordingly, I find that the State of Michigan's reduction of the AFDC grants to levels below those in effect on May 1, 1988 do not violate 42 U.S.C. Sec. 1396a(c).

Slip opinion, p 15.

This office has been informed by the Department of Social Services that the May 1, 1988, AFDC grant levels were reinstated beginning November 1, 1991. Therefore, your question whether the Medicaid State Plan amendments are jeopardized by the pre-November, 1991, AFDC grant levels appears to have become moot. The increase in the grant levels eliminates the restriction on the federal approval of pending Medicaid State Plan amendments contained in 42 USC Sec. 1396a(c).

Your twelfth question may be stated as follows:

In light of section 912 of 1991 PA 111 which requires that the Medicaid reimbursement rates for county medical care facilities be the same as those for private nursing homes, does the Department of Social Services have the authority to continue to reimburse the county nursing homes at their present higher rates?

The higher Medicaid reimbursement rates for medical care facilities operated by counties are being paid in order to comply with a temporary injunction issued by the federal district court in Lapeer County Medical Care Facility, et. al. v. State of Michigan, et. al., (WD Mich) No. 1:91-CV-333, on April 30, 1991. This injunction was entered in response to a class action complaint filed by a number of county medical care facilities which sought to enjoin the Department of Social Services from lowering their Medicaid reimbursement rates to a level comparable to the rates paid to private nursing homes. The injunction specifically orders the state to restore reimbursement rates to county medical care facilities to the rates previously set by the Medical Services State Plan. Under the Supremacy Clause of the United States Constitution, the Department of Social Services is required to obey this federal court order even though there is a contrary state statute. Missouri v Jenkins, 495 US 33; 110 S Ct 1651; 109 L Ed 2d 31 (1990).

Your thirteenth question may be stated as follows:

May optional Medicaid services continue to be funded in the 1991-1992 fiscal year pursuant to 1991 PA 111?

Your request letter notes that the Governor's letter to the Senate dated October 11, 1991, indicates that reimbursement will be continued for certain optional Medicaid services including "vision, physical and occupational therapy, hearing and speech, durable medical equipment, orthotics and prosthetic, diabetic education, and hospice care." You ask how these payments may continue when neither the Governor's budget recommendations nor 1991 PA 111 contain funding for these optional Medicaid services.

This office has been informed that, historically, these services have been funded from broad line items in the medical services section of the Department of Social Services appropriations acts. These services have not been specified in either line items or boilerplate provisions. Traditionally, these medical services have been paid from the following line items:

Medical Service Line Item

--------------------------------- -----------------------------

vision auxiliary medical services

physical and occupational therapy hospital services and therapy

physical and occupational therapy physician services

hearing and speech auxiliary medical services

durable medical equipment pharmaceutical services

orthotics and prosthetic pharmaceutical services

diabetic education hospital services and therapy

hospice care home health services

These same line items appear in section 101 of the current Department of Social Services appropriations act, 1991 PA 111:

MEDICAL SERVICES

Full-time equated classified positions .................................. 516.8

Hospital services and therapy .................................. $1,096,486,800

Hospital disproportionate share payments .......................... 489,081,400

Physician services ................................................ 337,633,300

Medicare premium payments .......................................... 50,714,500

Pharmaceutical services ........................................... 245,572,100

Home health services ............................................... 16,266,700

Transportation ...................................................... 4,878,800

Auxiliary medical services ......................................... 25,873,800

Nursing home services ............................................. 417,696,200

Chronic care units and county medical care facilities ............. 102,521,400

Health maintenance organizations .................................. 172,986,400

Early periodic screening, diagnosis, and treatment contract ......... 4,181,900

Early periodic screening, diagnosis and treatment-department of

social services ..................................................... 756,600

Caring program for children ......................................... 4,546,400

Maternal and child health services .................................. 6,424,500

Operations-516.8 FTE positions ..................................... 36,705,300

--------------

GROSS APPROPRIATION $3,012,326,100

A review of 1991 PA 111 fails to disclose any provision prohibiting or restricting the coverage or the payment for these services out of the line items which have traditionally been used to fund these services.

The Michigan Medicaid program is authorized by the Social Welfare Act at MCL 400.10; MSA 16.410, and MCL 400.105 et seq; MSA 16.490(15) et seq, which direct the Department of Social Services to operate the program in accordance with Title XIX of the Social Security Act, 42 USC Sec. 1396 et seq. 42 USC Sec. 1396a provides that the Medicaid program will be operated in accordance with an approved state plan which is basically the state's operational blueprint for Michigan's Medicaid program. This office has been advised by the Department of Social Services that the current approved Medicaid State Plan does provide for the coverage of the above-mentioned medical services. Thus, these services are authorized by the state and federal acts as implemented by the approved state plan.

In summary, there is state and federal authority to provide these medical services. Moreover, 1991 PA 111 contains appropriations for the same line items which have been historically used to provide these services and does not contain any language prohibiting the use of these funds to provide the services noted above.

It is my opinion, in answer to your thirteenth question, that the optional Medicaid services noted above may be funded in the 1991-1992 fiscal year pursuant to 1991 PA 111.

Your fourteenth question may be stated as follows:

Did the Governor have the legal authority to veto section 214 of Enrolled SB 225?

Enrolled SB 225, hereinafter SB 225, is a bill to make appropriations for the Department of State Police and for certain other purposes. Section 214 of SB 225 provides:

In the event that the funds appropriated in section 101 for the civil infraction surcharge are not received and collected by the department, the department shall maintain programs from other available resources in the following order of priority:

(a) Training division and law enforcement officers training council.

(b) Secondary road patrol grants.

(c) Legislative liaison.

(d) 9-1-1/central dispatch equipment grants.

(e) Toxicology analysis.

(f) Marquette laboratory.

(g) Emergency medical transportation.

(h) At-post troopers.

(i) Saginaw township training grant.

The Governor vetoed section 214 of SB 225 in its entirety, vetoed certain other items in SB 225, and approved the bill. It became 1991 PA 125.

Your question will be answered on the assumption that the legislation establishing the civil infraction surcharge referred to above has not been enacted.

In connection with your question it is in order to observe that, pursuant to Const 1963, art 5, Sec. 19, the Governor is authorized to veto "any distinct item or items appropriating moneys in any appropriations bill."

The Governor's authority to veto items in appropriations bills was dealt with in OAG, 1985-1986, No 6399, p 402, 409 (November 13, 1986), as follows:

An item in an appropriations bill contains the subject and the amount of an appropriation. The appropriations bill may contain one or more items. The line item may be a single line or contained in a numbered paragraph of an appropriations bill. The item must set apart a specific portion of money. [Citations omitted.]

The Governor may not veto conditions with respect to appropriations in the absence of vetoing the item of appropriation appearing as an individual line item or in paragraph form. Conversely, with the vetoing of an item appropriation, whether in individual line item form or in paragraph form, the conditions with respect thereto may also be vetoed. OAG, 1991-1992, No 6684, p 46 (June 11, 1991).

With the foregoing in mind, section 214 does not contain "items appropriating moneys." Const 1963, art 5, Sec. 19. Instead, it purports to list an order of priority to be observed for certain enumerated programs for which appropriations have been made in other sections of SB 225 in the event the civil fraction surcharge is not enacted into law. Nine programs are listed in section 214. It is noted that only the program listed in section 214, subsection (h), "At-post troopers", is to be funded from civil infraction surcharge funds and that program is only funded, in part, from those funds.

The Governor vetoed line items of appropriation in section 101 for the programs listed in section 214, subsections (b) and (d). The Governor also vetoed section 301, which in section form set aside a specific sum of money for each of the programs described in subsections (g) and (i) of section 214. The Governor also vetoed a line item in section 101 which funded "Training only to local units", for one of two programs described in subsection (a) of section 214. The Governor did not veto any item of appropriation for the programs described in section 214, subsections (c), (e), (f) and (h).

While section 214 does not make appropriations by setting aside sums of money for specific programs, it does contain conditions upon items of appropriation made for certain programs in other sections of SB 225. Where the Governor has vetoed items of appropriations for programs in other sections of SB 225, he may veto conditions on such vetoed programs. OAG, No 6684, supra. Therefore, the gubernatorial vetoes of section 214, subsections (b), (d), (g), and (i) are valid.

Because the Governor vetoed the item of appropriation for "Training only to local units" in section 101, but not items of appropriation for other Law Enforcement Officers Training Council programs, the veto of section 214, subsection (a) is valid only as it applies to that vetoed program.

The programs described in section 214, subsections (c), (e), (f) and (h) are funded by items of appropriation in section 101. None of these items were vetoed by the Governor. The conditions stated in section 214, subsections (c), (e), (f) and (h) may not be vetoed by the Governor in the absence of a veto of the items of appropriation for such programs in section 101. OAG, No 6684, supra.

It is my opinion, in answer to your fourteenth question, that the vetoes of section 214, subsections (b), (d), (g) and (i) of SB 225 are valid. It is my further opinion that the veto of section 214, subsection (a) of SB 225, as it applies only to the program for "Training only to local units", is valid. It is my further opinion that the vetoes of section 214, subsection (a) as it applies to other "law enforcement officers training council" programs and the vetoes of subsections (c), (e), (f) and (h) of section 214 of Enrolled SB 225 are invalid.

Frank J. Kelley

Attorney General