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



RETIREMENT AND PENSIONS:

STATE SUPERINTENDENT OF PUBLIC INSTRUCTION:

Membership of the superintendent of public instruction on the Michigan public school employees' retirement board after enactment of 1996 PA 488


The membership of the Michigan public school employees' retirement board under section 22 of the Public School Employees Retirement Act of 1979 continues to include the superintendent of public instruction after amendatory 1996 PA 488, MCL 38.1322; MSA 15.893(132).


Opinion No. 6944

July 16, 1997


Honorable John Engler
Governor
The Capitol
Lansing, MI 48933


You have asked whether the membership of the Michigan public school employees' retirement board under section 22 of the Public School Employees Retirement Act of 1979 continues to include the superintendent of public instruction after amendatory 1996 PA 488, MCL 38.1322; MSA 15.893(132).

1980 PA 300, MCL 38.1321 et seq; MSA 15.893(131) et seq (Act), created the Michigan public employees' retirement system for public school employees. To implement the retirement system, the Act created a nine-member Michigan public school employees' retirement board (board) consisting of the state superintendent of public instruction and the state treasurer serving ex officio, plus seven members appointed by the Governor with the advice and consent of the Senate. Section 22(1).

1996 PA 488, effective March 31, 1997, amended section 22 of the Act to, among other things, eliminate the state treasurer's membership on the board, enlarge the board from nine to twelve members, and provide that board members serve for five years rather than four years. The proposed amendment to section 22 was introduced on the floor of the House of Representatives as 1996 HB 6230, and was thereafter passed by both houses and enacted into law as 1996 PA 488. The changes wrought by 1996 PA 488 are best illustrated by quoting HB 6230. In HB 6230 the new language is in capital letters and the deleted language has a line through it, as follows:

"Sec. 22. (1) The Michigan public school employees' retirement board is created in the department and shall consist of the superintendent of public instruction, the state treasurer, and 7 11 members appointed by the governor with the advice and consent of the senate. At least 1 of the retirement board members shall be a public school employee whose primary assignment is a classroom teacher, and at least 1 shall be a nonteaching public school employee. One of the retirement board members shall be a member or retirant of a first class school district. The number of nonteaching members of the retirement board shall not exceed the number of teaching members on the board. At least 1 retirement board member shall be a retirant, and at least 1 retirement board member shall be from the general public with experience in the insurance, actuarial, or institutional investment field and neither a public school employee nor a member of the retirement system AS FOLLOWS:
(A) TWO MEMBERS WHO ARE WORKING AS CLASSROOM TEACHERS.
(B) ONE NONTEACHER MEMBER WHO IS WORKING IN A NONCERTIFIED EDUCATIONAL SUPPORT POSITION OR A RETIRANT WHO RETIRED FROM A NONCERTIFIED EDUCATIONAL SUPPORT POSITION.
(C) ONE MEMBER WHO IS A SCHOOL SYSTEM SUPERINTENDENT.
(D) ONE MEMBER WHO IS WORKING IN A SCHOOL SYSTEM IN A FINANCE OR OPERATIONS MANAGEMENT POSITION, BUT WHO IS NOT A SCHOOL SYSTEM SUPERINTENDENT.
(E) ONE RETIRANT WHO RETIRED FROM A CLASSROOM TEACHER POSITION.
(F) ONE RETIRANT WHO RETIRED FROM A FINANCE OR OPERATIONS MANAGEMENT POSITION.
(G) ONE ADMINISTRATOR OR TRUSTEE OF A COMMUNITY COLLEGE, WHICH COMMUNITY COLLEGE IS A REPORTING UNIT.
(H) TWO FROM THE GENERAL PUBLIC, 1 OF WHICH SHALL HAVE EXPERIENCE IN HEALTH INSURANCE OR ACTUARIAL SCIENCE AND 1 OF WHICH SHALL HAVE EXPERIENCE IN INSTITUTIONAL INVESTMENTS. AN INDIVIDUAL APPOINTED UNDER THIS SUBDIVISION SHALL NOT BE A MEMBER, DEFERRED MEMBER, RETIRANT, OR RETIREMENT ALLOWANCE BENEFICIARY UNDER THIS ACT.
(I) ONE ELECTED MEMBER OF A REPORTING UNIT'S BOARD OF CONTROL.
***

(4) (3) The 7 members appointed and serving on the retirement board provided in former Act No. 136 of the Public Acts of 1945, on the effective date of this act, ON JULY 1, 1997 shall HAVE THEIR RESPECTIVE TERMS EXTENDED BY 2 YEARS AND SHALL serve for the remainder of their appointed EXTENDED terms. AS EACH BOARD MEMBER'S TERM EXPIRES UNDER THIS SUBSECTION, THE NEW APPOINTMENT SHALL BE MADE IN ACCORDANCE WITH SUBSECTION (1). ON JANUARY 1, 1997, 2 NEW INDIVIDUALS SHALL BE APPOINTED AS MEMBERS OF THE RETIREMENT BOARD IN ACCORDANCE WITH SUBSECTION (1). THE INITIAL TERMS OF OFFICE OF THESE 2 NEW MEMBERS SHALL BE SET BY THE GOVERNOR SO THAT 1 TERM EXPIRES ON MARCH 30, 2001 AND 1 TERM EXPIRES ON MARCH 30, 2003. THE SUPERINTENDENT OF PUBLIC INSTRUCTION AND THE STATE TREASURER SHALL BE CONSIDERED TO HAVE TERMS THAT EXPIRE ON MARCH 30, 1997. ON MARCH 31, 1998, 2 NEW INDIVIDUALS SHALL BE APPOINTED AS MEMBERS OF THE RETIREMENT BOARD IN ACCORDANCE WITH SUBSECTION (1). THE INITIAL TERMS OF OFFICE OF THESE 2 NEW MEMBERS SHALL EXPIRE ON MARCH 30, 2003."

1996 Journal of the House, 2319 (No. 79, December 5, 1996).

The only possible confusion over whether the superintendent of public instruction remains as a board member arises from newly added section 22(4) of the Act, which states in part: "The superintendent of public instruction and the state treasurer shall be considered to have terms that expire on March 30, 1997." The inclusion of an expiration date for the terms of both ex officio members of the board could be read as an indication that the Legislature intended to also eliminate the superintendent's membership on the board. But the third sentence of section 22(4) dispels any inconsistency by specifying that as each member's term expires, "the new appointment shall be made in accordance with subsection (1)," referring back to section 22(1) which expressly mandates the superintendent's membership. In interpreting a statute, the rule in pari materia requires that all of its provisions relating to the same subject be construed as complementary and not contradictory. State Bar of Michigan v Galloway, 124 Mich App 271, 335 NW2d 475 (1983); In re Estate of Meredith, 279 Mich 298, 272 NW 683 (1937). Application of this rule requires that sections 22(1) and 22(4) be read together so as to reconcile any possible inconsistency.

If a statute is unclear, the legislative history may be examined to assist in determining legislative intent. Luttrell v Dep't of Corrections, 421 Mich 93, 103; 365 NW2d 74 (1984). As is apparent from the above version of HB 6230, the amendment to section 22(1) of the Act eliminates the state treasurer's membership on the board, but mandates that the superintendent of public instruction "shall" serve on the board. This conclusion is supported by the legislative analysis for HB 6230, which states "[i]n addition, the bill would enlarge the retirement board from nine to twelve members." House Legislative Analysis, HB 6230, January 13, 1997. In order for there to be twelve board members as required by the amended Act, the superintendent of public instruction must be counted as a member. Legislative bill analyses may be utilized as evidence of legislative intent. See, In re Forfeiture of $5,204, 432 Mich 242, 255-257; 439 NW2d 246 (1989).

An additional principle of statutory construction is the presumption against repeal by implication between conflicting statutes, or between conflicting provisions within the same statute. Underlying this presumption is the rationale that had the Legislature intended that one act or provision would repeal another act or provision, it would expressly so provide in the later statute or provision. People v Waterman, 137 Mich App 429, 433; 358 NW2d 602 (1984); OAG 1981-1982, No 5885, p 140, 142 (April 22, 1981). Moreover, a legislative intent to repeal by implication must be expressed in particularly clear terms. Ficano v Lucas, 133 Mich App 268, 281; 351 NW2d 198 (1983). In this case, section 22(4) of the Act does not contain the clear expression of intent necessary to repeal by implication, the superintendent's membership on the board. To the contrary, the superintendent's membership on the board remains expressly mandated by section 22(1), which was amended contemporaneously with the addition of section 22(4) to the Act. Had the Legislature intended to eliminate the membership of the superintendent, it could easily have done so by deleting the section 22(1) reference to the superintendent, just as it did do with the reference to the state treasurer. The Legislature's failure to do so compels the conclusion that it did not intend to eliminate the superintendent's membership on the Michigan public school employee's retirement board.

It is my opinion, therefore, that the membership of the Michigan public school employees' retirement board under section 22 of the Public School Employees Retirement Act of 1979 continues to include the superintendent of public instruction after amendatory 1996 PA 488, MCL 38.1322; MSA 15.893(132).

FRANK J. KELLEY
Attorney General