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. 6799 May 18, 1994 OPEN MEETINGS ACT: Application of the Open Meetings Act to the hazardous waste management site review decision process of the Department of Natural Resources The meetings of site review boards remain subject to the Open Meetings Act, despite the Type II transfer of these boards by Executive Order 1991-31. Honorable Kirk A. Profit State Representative The Capitol Lansing, Michigan You have asked whether the meetings of site review boards are subject to the Open Meetings Act (OMA), 1976 PA 267, MCL 15.261 et seq; MSA 4.1800(11) et seq, in light of Executive Order 1991-31, which reorganized the Department of Natural Resources, and in light of the Michigan Supreme Court's ruling, in House Speaker v Governor, 443 Mich 560; 506 NW2d 190 (1993), sustaining the validity of that Executive Order. First, it should be noted that the site review boards were not abolished by Executive Order 1991-31 but instead were transferred by a Type II transfer to the newly reorganized Department of Natural Resources: [T]he functions, duties and responsibilities of the Site Review Boards authorized by Section 17 of the Hazardous Waste Management Act, Act No. 64 of the Public Act of 1979, as amended, being Section 299.517 of the Michigan Compiled Laws, are transferred by a Type II transfer, as defined by Section 3 of Act No. 380 of the Public Acts of 1965, being Section 16.103 of the Michigan Compiled Laws; and a Site Review Board shall be advisory to the director of the new Michigan Department of Natural Resources. Executive Order 1991-31, p 14. A Type II transfer is defined in section 3(b) of the Executive Organization Act of 1965 as follows: Under this act, a type II transfer means transferring of an existing department, board, commission or agency to a principal department established by this act. Any department, board, commission or agency assigned to a type II transfer under this act shall have all its statutory authority, powers, duties and functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and procurement, transferred to that principal department. MCL 16.103(b); MSA 3.29(3)(b). Under the above definition, a board reassigned pursuant to a Type II transfer still exists. OAG, 1965-1966, No 4479A, p 262, 263-264 (May 2, 1966). Thus, site review boards were not abolished. Site review boards are subject to the OMA, as mandated by section 17(4) of the Hazardous Waste Management Act, which dictates that "[a]ll meetings of the board shall be conducted pursuant to the open meetings act." MCL 299.517(4); MSA 13.30(17)(4). Since all of a board's duties follow the board to the new department under a Type II transfer, site review boards remain bound by section 17(4) of the Hazardous Waste Management Act, and their meetings are still subject to the OMA. (1) Even though Executive Order 1991-31, p 14, states that "a Site Review Board shall be advisory to the director of the new Michigan Department of Natural Resources," a different result is not required. Generally, purely advisory bodies that are incapable of exercising governmental authority are not subject to the OMA. See, Booth Newspapers, Inc v University of Michigan Board of Regents, 444 Mich 211, 225; 507 NW2d 422 (1993), and OAG, 1977-1978, No 5183, p 21, 40 (March 8, 1977). However, site review boards remain subject to the OMA, despite being advisory to the Director of the Department of Natural Resources, since the clear statutory directive of section 17(4) of the Hazardous Waste Management Act requires these boards to comply with the OMA in conducting their meetings. It is my opinion, therefore, that meetings of site review boards remain subject to the Open Meetings Act, despite the Type II transfer of these boards by Executive Order 1991-31. Frank J. Kelley Attorney General (1 Your opinion request refers to the Environmental Science Board created by Executive Order 1992-19)