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. 6904 May 29, 1996 GOVERNOR: Gubernatorial line item veto power The veto of the last sentence of section 101(4) of the State School Aid Act of 1979, as added by HB 4083, is invalid under Const 1963, art 5, s 19. Honorable Don Koivisto State Senator The Capitol Lansing, Michigan Honorable Patrick M. Gagliardi State Representative The Capitol Lansing, Michigan Honorable Paul Tesanovich State Representative The Capitol Lansing, Michigan Honorable Michelle McManus State Representative The Capitol Lansing, Michigan Honorable Beverly A. Bodem State Representative The Capitol Lansing, Michigan Honorable David Anthony State Representative The Capitol Lansing, Michigan Honorable Michael Prusi State Representative The Capitol Lansing, Michigan Honorable Allen L. Lowe State Representative The Capitol Lansing, Michigan Honorable Tom C. Alley State Representative The Capitol Lansing, Michigan Honorable James G. Agee State Representative The Capitol Lansing, Michigan You have asked if the Governor's veto of an amendment to section 101(4) of the State School Aid Act of 1979, MCL 388.1601 et seq, MSA 15.1919(901) et seq, in Enrolled 1996 HB 4083 (hereinafter HB 4083), is contrary to Const 1963, art 5, s 19. HB 4083, which was signed on April 19, 1996, and became 1996 PA 180, makes supplemental appropriations of state aid to school districts for the 1995-1996 school year. To be eligible to receive state aid, school districts must satisfy certain conditions set forth in the State School Aid Act of 1979. Section 101(3) of the State School Aid Act of 1979 provides that each district shall provide a minimum of 180 days of pupil instruction. Section 101 as amended by HB 4083 further provides in subsection (4): (4) The first 2 days for which pupil instruction is not provided because of conditions not within the control of school authorities, such as severe storms, fires, epidemics, or health conditions as defined by the city, county, or state health authorities, shall be counted as days of pupil instruction. Subsequent such days shall not be counted as days of pupil instruction. However, for 1995-96 only, for a school district at or above townline 16, the first 5 days for which pupil instruction is not provided because of conditions described in this subsection shall be counted as days of pupil instruction. [Emphasis added.] The Governor vetoed the emphasized portion of subsection (4), which was added by HB 4083. Const 1963, art 5, s 19, authorizes the Governor to disapprove distinct items in appropriation bills. It provides: The Governor may disapprove any distinct item or items appropriating moneys in any appropriation bill. The part or parts approved shall become law, and the item or items disapproved shall be void unless re-passed according to the method prescribed for the passage of other bills over the executive veto. The law is well settled that the Governor's veto power is a power which must be narrowly construed. Wood v State Administrative Board, 255 Mich 220, 224-225; 238 NW 16 (1931). The appropriate inquiry is whether the Governor vetoed a specific "item or items" containing appropriations of money. The veto power may not be used to change the basic provisions of legislation. The limited nature of this constitutional provision was explained in OAG, 1981-1982, No 5852, p 43, 44 (February 23, 1981), as follows: Thus, in Wood v State Administrative Board, supra, the Supreme Court held that the Governor may not reduce specific items in an appropriations bill because the constitution did not specifically confer upon the Governor the power to modify a bill but merely the power to approve or disapprove. Also, in OAG, 1952-1954, No 1775, p 333 (May 3, 1954), the Attorney General concluded that Const 1908, art 5, s 37 (the predecessor of Const 1963, art 5, s 19) did not confer upon the Governor the power to veto conditions attached by the Legislature to items in an appropriations bill in that while the Governor had the power to veto a specific appropriation, the Governor could not strike language qualifying an appropriation or directing the methods of its use. Thus, it is clear that the veto power of the Governor is a limited power which may not be extended beyond the explicit grant of authority in the Constitution. The State School Aid Act of 1979 is unquestionably an appropriations act. However, section 101 does not appropriate funds but, rather, establishes conditions for the receipt of state aid funds. The section sets forth requirements for pupil membership reporting and for the minimum annual number of days and hours of instruction. The Legislature has determined in subsection (3) of section 101 that in order to receive its total allocation of state aid, a district must provide 180 days and the required number of hours of pupil instruction. Section 101(3) provides in pertinent part: (3) Each district shall provide a minimum of 180 days and the required minimum number of hours of pupil instruction.... Except as otherwise provided in this act, a district failing to hold 180 days of pupil instruction shall forfeit 1/180 of its total state aid appropriation for each day of failure. In subsection (4) the Legislature has determined that the district need not forfeit state aid for the first two or five days that pupil instruction is not provided because of the occurrence of the conditions set forth in that subsection. In State Board of Education v Houghton Lake Community Schools, 430 Mich 658; 425 NW2d 80 (1988), the Supreme Court held that the Legislature has authorized a forfeiture of state aid as the exclusive means of enforcing the 180 day instructional standard. The Supreme Court held that section 101 of the State School Aid Act of 1979 sets forth "the conditions for receipt of state financial aid" and is a financial incentive offered by the Legislature for compliance with the statewide standards, not a statutory mandate. Id, at 674. Const 1963, art 5, s 19, does not give the Governor the authority to modify a bill. Wood v State Administrative Board, 255 Mich at 224. The Governor may not use the limited veto power to change the basic provisions of legislation. OAG, 1981-1982, No 5852, supra. In subsection (4) of section 101, the Legislature has merely modified the 180 day instructional standard by providing that if pupil instruction is not provided because of certain conditions beyond the control of school authorities, the first two or five days, depending on the geographic location of the district, shall be counted by the district as days of pupil instruction. Subsection (4) of section 101 modifies the conditions attached by the Legislature for receipt of state financial aid by school districts and is a nonappropriating provision of the State School Aid Act of 1979. The veto power may not be used by the governor to object to a portion of a provision of a bill which is not an item appropriating moneys or to strike language qualifying an appropriation. OAG, 1981-1982, No 5852, supra. It is my opinion, therefore, that the veto of the last sentence of section 101(4) of the State School Aid Act of 1979, as added by HB 4083, is invalid under Const 1963, art 5, s 19. Frank J. Kelley Attorney General