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

ADMINISTRATIVE PROCEDURES ACT:

CORRECTIONS DEPARTMENT:

JAILS:

Applicability of APA rule-making procedures to policies adopted by local lockup advisory board


Model policies developed and promoted by a local lockup advisory board within the Michigan Department of Corrections are not subject to the rule-making or the guideline-making requirements of the Administrative Procedures Act of 1969.


Opinion No. 6950

August 29, 1997


Peter A. Letzmann, Chairman
Michigan Local Lockup Advisory Board
500 West Big Beaver Road
Troy, MI 48084


You have asked whether model policies developed and promoted by a local lockup advisory board within the Michigan Department of Corrections are subject to the rule-making requirements of the Administrative Procedures Act of 1969.

1984 PA 102, MCL 791.262 et seq; MSA 28.2322 et seq, amended the Department of Corrections act to remove local lockup facilities, except county jails, from the rule-making authority of the Michigan Department of Corrections (MDOC). Section 62(1)(e) and (5), respectively, defines lockup and remove MDOC's authority to promulgate rules governing local lockups:

(1)(e) "Lockup" means a facility that is operated by a local unit of government for the detention of persons awaiting processing, booking, court appearances, or transportation to a jail, for not to exceed 72 hours.

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(5) Except as provided in subsection (3), the department shall not supervise and inspect, or promulgate rules and standards for the administration of, holding cells, holding centers, or lockups. However, the department shall provide advice and services concerning the efficient and humane administration of holding cells, holding centers, and lockups at the request of a local unit of government.

Section 62a establishes a local lockup advisory board within the MDOC and requires the board to develop and promote a model policy for use in administering local lockups:

(1) A local lockup advisory board is created within the bureau of prisons. The board shall consist of 7 members appointed for a period of 4 years. . . .

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(4) The local lockup advisory board shall develop and promote a model policy for use in the administration of local lockups, holding cells, and holding centers. The model policy shall be developed within 6 months after the date of the first meeting. The advisory board shall convene annually to review the model policy.

The foregoing 1984 amendments to section 62 make it explicit that the MDOC's authority does not extend to local lockups, other than county jails. Although this statute creates the local lockup advisory board, it only provides the board with the authority to develop and promote a model policy and does not provide the board, or any other entity, with authority to require adoption of, or compliance with, the model policy. Section 62 provides the MDOC with authority to promulgate rules for the administration of county jails and lockups but specifically removes such authority for any other local lockups.

The Administrative Procedures Act of 1969 (APA), MCL 24.201 et seq; MSA 3.560(101) et seq, provides for the effect of processing, promulgation, publication and inspection of state agency rules. APA section 7 defines the term rule as follows:

"Rule" means an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or rescission of the law enforced or administered by the agency.

Model policies adopted and promoted by the MDOC's local lockup advisory board do not implement or apply law enforced or administered by the MDOC, nor do they prescribe the organization, procedure, or practice of the MDOC. Accordingly, model policies adopted and promoted by the advisory board do not constitute rules within the meaning of the APA and, therefore, are not subject to the APA's rule-making procedures.

It should also be noted that the model policies adopted and promoted by the MDOC's local lockup advisory board do not constitute guidelines subject to APA's guideline-making procedures in section 24. APA section 3(6) defines the term guideline as follows:

"Guideline" means an agency statement or declaration of policy which the agency intends to follow, which does not have the force or effect of law, and which binds the agency but does not bind any other person.

Model policies adopted and promoted by the MDOC's local lockup advisory board, not being binding on the advisory board or the MDOC, do not constitute guidelines within the meaning of the APA and, therefore, are not subject to the APA's guideline-making procedures.

It is my opinion, therefore, that model policies developed and adopted by a local lockup advisory board within the Michigan Department of Corrections are not subject to the rule-making or the guideline-making requirements of the Administrative Procedures Act of 1969.


FRANK J. KELLEY
Attorney General