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. 6828

December 22, 1994

MUNICIPALITIES:

Proxy voting by a member of a board of trustees of a municipal health facilities corporation

A member of a board of trustees of a municipal health facilities corporation organized under 1987 PA 230 may not vote by proxy at regularly scheduled board meetings or at committee meetings during which a quorum is present.

Honorable Bill Bobier

State Representative

The Capitol

Lansing, MI

You have asked if a member of a board of trustees of a municipal health facilities corporation organized under 1987 PA 230 may vote by proxy at regularly scheduled board meetings or at committee meetings during which a quorum is present.

1987 PA 230, the Municipal Facilities Corporations Act, MCL 331.1101 et seq; MSA 14.1148(101) et seq (the Act), authorizes counties, cities, or villages to incorporate municipal health facilities corporations to own and operate certain health care facilities. The corporation is governed by a board of trustees of not fewer than 5 nor more than 15 trustees, appointed by the legislative body of the county, city or village. Each person appointed a trustee must take the constitutional oath of office prescribed in Const 1963, art 11, Sec. 1. See sections 209(1) and (4) and 258(1) and (4) of the Act.

Municipal health facilities corporations established under or governed by the Act are public bodies. Petrus v. Dickinson County Bd of Comm'rs, 184 MichApp 282, 297; 457 NW2d 359, lv den 435 Mich 879 (1990). Thus, the members of the boards of trustees of these public corporations are public officers.

The Legislature has expressly subjected the boards of trustees of municipal health facilities corporations to the Freedom of Information Act, MCL 15.231 et seq; MSA 4.1801(1) et seq, and the members of these boards are subject to the conflict of interest act, MCL 15.321 et seq; MSA 4.1700(51) et seq, as public servants. See sections 211, 212(3), 260 and 261(3) of the Act.

A board of trustees is empowered to establish, operate, manage and discontinue health facilities, including hiring physicians and other health care providers and to fix fees and charges for health care services under chapter 3, sections 301 to 307 of the Act. Under chapter 4, sections 401 through 415 of the Act, a board of trustees may borrow money and issue notes and bonds.

In section 210 of the Act, setting forth the requirements for taking action by a board of trustees, the Legislature has provided:

A majority of the trustees serving on a board or subsidiary board shall constitute a quorum for the transaction of business of the corporation or subsidiary corporation, respectively. Except as otherwise specifically provided in this act, actions taken by a board of trustees or subsidiary board shall be by a vote of a majority of the members serving on the board or subsidiary board.

Research discloses no Michigan statute authorizing proxy voting by public officials nor any Michigan appellate court decision on that precise question. However, that question was squarely addressed in Collins v Nix, 188 SE2d 235, 237; 125 GaApp 520 (1972). In rejecting proxy voting by public officials, the Georgia Court ruled:

In the cross appeal error is enumerated on that portion of the order holding that the Authority is a public body, the members of which must act in person and not by proxy. While there appears to be a dearth of authority on the point, we think that since such authorities are in effect instrumentalities of the State discharging essential governmental obligations, it would be contrary to the public interest to hold that the members of boards of such Authorities could discharge their solemn responsibilities by way of proxies. Consequently this portion of the order must be affirmed. [ Emphasis added; citations omitted.]

In Tarrant County v Smith, 81 SW2d 537, 538 (TexCivApp, 1935), the Court rejected the appointment by a sheriff of deputies subject to approval of a commissioners court composed of several members. The approval of the commissioners court was based upon the statement of one member of the court made at a local drug store and the vote of another member at a different commercial establishment. The appointment was rejected because the commissioners court must meet as a body to transact business in open session, where "the members may have the benefit of the knowledge and opinions of the other members, as well as that the public may know when and where its affairs are being transacted."

While research has not disclosed any Michigan appellate precedent directly on point, the available Michigan precedent is consistent with the cases cited above from other jurisdictions. In Dingwall v Detroit Common Council, 82 Mich 568, 571; 46 NW 938 (1890), the city council counted and recorded the vote of absent members in appointing election inspectors. The Michigan Supreme Court rejected these appointments, ruling that "the counting of absent members and recording them as voting in the affirmative on all questions, was also an inexcusable outrage."

A member of a township board may not, absent legislative authorization, appoint a substitute or proxy to attend a meeting of the board and vote for the absent member. OAG, 1945-1946, No 0-3629, p 378 (June 14, 1945).

Applying these authorities, it must be concluded that the statutory authority conferred by the Legislature upon a municipal health facilities corporation board of trustees may only be exercised by the board when it is lawfully convened in a meeting where a quorum is present and the board acts by majority vote of members serving on the board who are in attendance. Neither 1987 PA 230, supra, nor any other statute authorize a member not in attendance at the meeting to vote by proxy. The same rule applies to attendance and voting of members at a meeting of a committee of the board.

It is my opinion, therefore, that a member of a board of trustees of a municipal health facilities corporation organized under 1987 PA 230 may not vote by proxy at regularly scheduled board meetings or at committee meetings during which a quorum is present.

Frank J. Kelley

Attorney General