STATE OF MICHIGAN

While the Department of Information Technology has responsibility for the day-to-day technical operations of the Michigan Public Safety Communications System (MPSCS), the Director of the Michigan Department of State Police is responsible for MPSCS public safety policy and program direction under the Michigan Public Safety Communications System Act.

An executive directive issued in the exercise of the Governor's supervisory authority under Const 1963, art 5, � 8, does not have the force and effect of law and cannot amend a state statute consistent with the separation of powers doctrine embodied in Const 1963, art 3, � 2. Executive Directive 2003-13 simply communicates internal policy and procedure regarding the operation of the Michigan Public Safety Communications System by the Director of the Michigan State Police "consistent with . . . MCL 28.281 to 28.283." It does not purport to amend or have the effect of amending a law and, accordingly, does not violate Const 1963, art 3, � 2.

The responsibilities of the Director of the Michigan State Police described in Executive Directive 2003-13 are consistent with the then current management and operation of the Michigan Public Safety Communications System; accordingly, the Governor did not by executive directive attempt to effectuate an interdepartmental transfer of functions within the executive branch requiring an executive order under Const 1963, art 5, � 2.

Executive Directive 2003-13 replaces Executive Directive 2003-12 as originally issued in its entirety and supersedes the initial directive.

Executive Directive 2003-13 provides for a governmental public safety agency's assumption of liability for any damage caused by the agency's equipment to the Michigan Public Safety Communications System, but it does not preclude modification of this provision or more detailed implementation of the directive's general policy by mutual written agreement of the parties.

The provision of Executive Directive 2003-13 defining the meaning of "governmental public safety agency" and "Agency" as used in the directive to be the same as "governmental public safety agency" under the Michigan Public Safety Communications System Act merely establishes that the directive intends the meaning of the terms to be consistent. In that executive directives represent the exercise of the Governor's supervisory authority and do not acquire the force and effect of law, any confusion as to the meaning of the terms used in the directive can best be resolved between the Governor and the parties over whom the supervisory authority is exercised.

Opinion No. 7157

June 2, 2004

Honorable Michael Bishop
State Senator
The Capitol
Lansing, MI 48909

You have asked a number of questions concerning Executive Directives 2003-12 (ED 2003-12) and 2003-13 (ED 2003-13). The Governor issued the executive directives to modify the policy of the executive branch regarding the utilization of the Michigan Public Safety Communications System (MPSCS or System) by governmental public safety agencies (Agencies).

An historical review of the MPSCS and the state agency and departments involved in its operation and evolution is helpful in responding to your questions.

In the 1980s, the Legislature evaluated studies of the then current Michigan State Police radio communications system as provided for under the Radio Broadcasting Stations Act, 1929 PA 152, MCL 28.281 et seq, and concluded that it was outdated and inadequate. Bryne v Michigan, 463 Mich 652, 653; 624 NW2d 906 (2001). This led the Department of Management and Budget (DMB), on behalf of the Department of State Police, to enter into a contract in 1994 to design and construct the MPSCS for approximately $187,000,000. The System's purpose was to modernize communications for the Michigan State Police and link law enforcement and public safety agencies throughout the State. Id., at 654. Construction of the MPSCS infrastructure began in 1996. Homeowners who did not want the MPSCS communication towers placed in their communities challenged the construction of the MPSCS. Bryne v Michigan, supra. To address these legal challenges and facilitate the construction of the MPSCS, the Legislature, through 1996 PA 538, amended MCL 28.281 to 28.283 of the Radio Broadcasting Stations Act (MPSCS Act).

Construction of the MPSCS infrastructure was completed in 2003. The result is a state-of-the-art public safety wireless mobile communications system consisting of a network of 181 interrelated communications towers sites and supporting facilities across the state. MSP developed an agreement entitled "Michigan's Public Safety Communications System (MPSCS) Membership Agreement" to provide a mechanism for Agencies to join the MPSCS. Under these agreements, a "member" is defined as a:

The System was financed with bonds issued by the State Building Authority (SBA). The SBA is an autonomous state agency created by the Legislature under 1964 PA 183, MCL 830.411 et seq (SBA Act), as a "body corporate, separate and distinct from the state." MCL 830.412(1). In accordance with the requirements of section 6 of the SBA Act, the SBA retains ownership of the System and leases it to the State. MCL 830.416. The System, therefore, is owned and operated through the relationship between the SBA as owner/lessor and DMB as the lessee.

The MPSCS Act placed the MPSCS and all of its real and personal property in the Department of Michigan State Police (MSP or Michigan State Police). MCL 28.281. The MPSCS Act gave the directors of MSP and DMB joint responsibility for the construction, implementation, operation, and maintenance of the MPSCS. MCL 28.282(1). MCL 28.282(2) vests sole responsibility for the siting of MPSCS facilities in the MSP Director and provides a process for resolving tower-siting issues.

The MPSCS Act imposes on the MSP the duty to broadcast over its System police dispatches and reports that have a reasonable relation to or connection with the apprehension of criminals, the prevention of crime, or the maintenance of peace, order, and public safety. MCL 28.283(1). The MSP Director "may authorize any governmental public safety agency to utilize the [MPSCS]." MCL 28.283(2).

In October 1997, pursuant to their joint responsibility under MCL 28.282(1), the directors of DMB and the Michigan State Police entered into a memorandum of understanding regarding the MPSCS. The memorandum of understanding authorized the Michigan State Police to coordinate the real estate activities associated with the construction of Michigan's MPSCS.

EO 2001-3, in section I.D defined "information technology services":

Significantly, EO 2001-3 makes no mention of the MPSCS or the MPSCS Act. Nor, based on the stated purpose of EO 2001-3 and its definitions of information technology services, is it clear that the MPSCS, a public safety communication system integral to public safety and crime prevention, was included within the definition of "Information Technology Services" as used in EO 2001-3.

We are advised that in October 2002, however, during the time EO 2001-3 continued to be implemented throughout state government, the MSP Director, along with others within DIT, agreed upon an implementation plan whereby the day-to-day operation of the MPSCS, including service, maintenance, and related management functions, came under the control of the DIT. While DIT assumed the responsibility of the day-to-day technical operations and maintenance of the System, the MSP Director retained public safety program management responsibility over MPSCS policy matters, including the authority to determine which entities may utilize the MPSCS.

In 2003, in order to update their 1997 memorandum of understanding in light of changes effectuated by EO 2002-20, the DMB and MSP consummated a memorandum addendum, with the concurrence of DIT, to authorize DIT to coordinate the disposal of certain old communication sites no longer utilized by the Michigan State Police in connection with the MPSCS. The memorandum of understanding, as amended, remains in effect.

It is against this backdrop of statutory provisions, executive orders, and a memorandum of understanding that ED 2003-12 was first issued by the Governor. It directed the "[r]esponsible department directors and autonomous agency heads" to change their former policy regarding the utilization of the MPSCS. The former policy had required Agencies to become members of the MPSCS pursuant to a membership agreement that granted the Agency access to the statewide communications network. Under the former policy, an Agency was not permitted to install its own equipment on MPSCS towers to enhance its ability to utilize a telecommunications system owned by the Agency unless it was a member. ED 2003-13 amended ED 2003-12 to clarify and further modify the policy of the executive branch regarding the use of the MPSCS by Agencies and Agency access to MPSCS towers and facilities. Under ED 2003-13, the Director of the Michigan State Police "is directed . . . to permit an Agency to use the MPSCS by installing public safety communications equipment upon MPSCS towers and related facilities" if certain conditions are satisfied.

Throughout ED 2003-12, as originally issued, an Agency seeking to use the MPSCS was instructed to demonstrate to "the department or agency responsible for the operation of the MPSCS" that its proposed use of the MPSCS met the directive's requirements. See ED 2003-12, section A, subsections 3, 4, 5, 6, and 7, and section E. ED 2003-13, however, now states more clearly which department operates the MPSCS. Through ED 2003-13, the Governor directs the "Director of the Department of State Police" to take certain actions relating to Agency access to the MPSCS upon a showing that specified conditions are satisfied and also identifies the DMB or DIT by name where those agencies play a role in the process.

The Governor's view as expressed in the amended directive that the Michigan State Police is responsible for implementing policy for the MPSCS is supported by the history recounted above. The Legislature, in section 2(1) of the MPSCS Act, vested responsibility for construction, implementation, operation, and maintenance of the MPSCS, jointly, in the MSP and DMB. MCL 28.282(1). This is consistent with the Management and Budget Act, 1984 PA 431, MCL 18.1101 et seq, which prescribes the power and duties of the DMB, and includes responsibility for state "facilities." Structures owned or leased through a building authority by the State, such as the MPSCS, are included in the definition of facility. MCL 18.1114. In addition, the MSP's management of the MPSCS is subject to the SBA Lease. Section 6.1 of the SBA Lease requires the SBA's approval of any proposed sublease or use agreement, such as the agreement contemplated between an Agency and the State described in section A.7 of ED 2003-13.

The MSP has also assumed DMB's former real estate responsibilities for the MPSCS. As previously mentioned, in 1997 DMB delegated its responsibilities relating to real estate activities associated with the operations of the MPSCS to the MSP pursuant to the memorandum of understanding. The memorandum of understanding was amended on September 29, 2003, for the purpose of delegating additional responsibility for the coordination of the disposal of surplus property and to acknowledge DIT's responsibilities in the daily technical operation of the MPSCS. At that time, the parties to the memorandum of understanding agreed that all other terms and conditions of the original memorandum of understanding were to remain in effect. Thus, the MSP has assumed full responsibility for non-surplus real estate functions related to the MPSCS.

DMB, however, maintains its support of the MPSCS in the administration of non-delegated DMB functions under the DMB Act because DMB is the department authorized to permit, by lease or license, use of property under the jurisdiction of the MSP. MCL 18.1221. This support includes DMB's role in implementing the provisions in the directive regarding the agreement between an Agency and the State described in section A.7.

To summarize, from 1997 to 2002 the MSP managed and operated the MPSCS pursuant to the memorandum of understanding and the SBA Lease. The MSP's technical operation of the MPSCS's infrastructure was transferred from the MSP's Communications Division to the DIT in October 2002. Following this transfer, we are informed that the Director of MSP retained public safety policy and program responsibility for the MPSCS under MCL 28.283 and the DIT assumed responsibility for the day-to-day technical operations of the System. In other words, DIT provides technical management services for the MPSCS infrastructure pursuant to MSP's public safety policy and program direction.

It is my opinion, therefore, in answer to your first question, that while the Department of Information Technology has responsibility for the day-to-day technical operations of the Michigan Public Safety Communications System, the Director of the Michigan Department of State Police is responsible for MPSCS public safety policy and program direction under the Michigan Public Safety Communications System Act.

Your second question asks whether the Governor has the authority to amend an existing substantive statute by executive directive consistent with the separation of powers doctrine of Const 1963, art 3, � 2. Your inquiry focuses on the provision in ED 2003-12, as originally issued, that "mandates" that responsible department directors and agency heads "shall permit any governmental public safety agency to install public safety communications equipment upon the MPSCS towers and related facilities," whereas the MPSCS Act uses discretionary language stating that the MSP Director "may authorize any governmental public safety agency to utilize the Michigan public safety communications system." Compare ED 2003-12, section A with MCL 28.283(2). (Emphasis added.)

Const 1963, art 3, � 2, provides for the separation of governmental powers, stating that "[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided by this constitution." (Emphasis added.) No provision of the constitution vests legislative power in the Governor with respect to executive directives. Accordingly, in the absence of a constitutional provision like art 5, � 2 expressly conferring legislative power on the Governor, executive directives cannot amend substantive law.

Research has disclosed no occasion on which the Attorney General has been asked for an opinion interpreting the terms of an executive directive, as opposed to an executive order. Generally speaking, the agencies identified in an executive directive can be expected to carry out the policies of the administration as communicated in the directive to the extent its directions are consistent with applicable law. To the extent any confusion or questions may arise as to the meaning of any of the directive's terms or provisions, such questions are best resolved by seeking the guidance of the Governor.

On the other hand, to the extent a question of the legality of an executive directive arises, an opinion of the Attorney General is the appropriate means for addressing such a question.

Applying these general principles to your particular question, the MSP Director is appointed by, and serves at the pleasure of, the Governor. MCL 16.252. Thus, the MSP Director, like other non-elected executive department heads, can be expected to carry out policies of the administration as communicated in this executive directive to the extent its directions are consistent with applicable law.

ED 2003-12, as originally issued, used the mandatory "shall" in connection with allowing the installation of Agency equipment upon MPSCS towers, whereas MCL 28.283(2) uses the permissive "may." See Roberts v Mecosta County Gen Hosp, 466 Mich 57, 65; 642 NW2d 663 (2002); MSEA v Michigan Liquor Control Comm, 232 Mich App 456, 468; 591 NW2d 353 (1998) (indicating "shall" usually designates a mandatory provision and "may" ordinarily designates a permissive one). The Governor cannot, by executive directive under Const 1963, art 5, � 8, or by executive order under Const 1963, art 5, � 2, change substantive law that does not directly relate to the exercise of her reorganization authority. Changing a duty from one involving the exercise of discretion to one purporting to remove such discretion would change substantive law and exceed the Governor's authority.

ED 2003-12, however, was superseded by ED 2002-13. ED 2003-13 no longer uses the mandatory "shall" found in ED 2002-12. ED 2003-13 directs the MSP Director to permit an Agency to use the MPSCS "consistent with . . . MCL 28.281 to 28.283" and, thus, on its face, does not purport to alter the provisions of substantive law relating to the operation of the MPSCS.

It is my opinion, therefore, in response to your second question, that an executive directive issued in the exercise of the Governor's supervisory authority under Const 1963, art 5, � 8, does not have the force and effect of law and cannot amend a state statute consistent with the separation of powers doctrine embodied in Const 1963, art 3, � 2. Executive Directive 2003-13 simply communicates internal policy and procedure regarding the operation of the Michigan Public Safety Communications System by the Director of the Michigan State Police "consistent with . . . MCL 28.281 to 28.283." It does not purport to amend or have the effect of amending a law and, accordingly, does not violate Const 1963, art 3, � 2.

Your fourth and fifth questions ask whether the Governor has the authority to effectuate by executive directive, instead of by executive order, interdepartmental transfers of the Michigan Public Safety Communications System powers or duties away from the Department of Information Technology or the Department of Management and Budget to the Michigan State Police. You also ask, in the absence of such authority, what effect is to be given the unauthorized sections of the executive directive.

Your questions relate to the sections in ED 2003-13 which refer to Executive Orders 2001-3 and 2002-20. Both of these executive orders were issued in a previous administration, acquired the force and effect of law, and have not been amended or rescinded.

The DIT was created by Executive Order 2001-3 under the authority of Const 1963, art 5, � 2, to organize existing information technology management functions into a new principal state department. As noted earlier, Executive Order 2001-3 makes no mention of the MPSCS. Nor, based on the stated purpose of EO 2001-3 and its definitions of information technology services, does it appear that the MPSCS, a public safety communication system, was contemplated within the definition of "Information Technology Services" as used in EO 2001-3.

In October 2002, during the time EO 2001-3 continued to be implemented throughout state government, we are informed that the MSP Director, along with others within DIT, agreed upon an implementation plan whereby the public safety policy and program management responsibilities pertaining to the MPSCS were separated from the technical and operational side. The service, maintenance, and technical functions of the MPSCS were transferred to DIT. The MSP, however, retained and has continued to maintain responsibility for the public safety policy and program management, as vested in the MSP by the MPSCS Act.

Executive Order 2002-20 was also issued pursuant to Const 1963, art 5, � 2. The purpose of this executive order was to consolidate within one principal department, DMB, statewide real estate functions in order to promote a unified approach to real estate and improve the management, investment, and sales of real property. It applies to executive branch agencies such as the MSP and DIT that are not vested with independent real estate authority.

These real estate functions, as they related to the construction, implementation, operation, and maintenance of the MPSCS, however, were previously delegated by DMB to the MSP. As previously discussed, in 1997 the directors of DMB and the MSP entered into a memorandum of understanding in which DMB delegated and the MSP assumed sole responsibility for the real estate-related activities of the MPSCS. In 2003, DMB and the Michigan State Police amended the memorandum of understanding to delegate additional real estate responsibilities relating to the MPSCS to the MSP and DIT. The memorandum of understanding, as amended, remains in effect and was not superseded by ED 2003-13. This type of delegation is contemplated in section III.C of Executive Order 2002-20, which provides: "[f]acility does not include an existing state owned and managed buildings[sic] or structures[sic] that is mutually agreed to be excluded by the department and the state agency having jurisdiction over the building or structure."

It is my opinion, therefore, in answer to your fourth and fifth questions, that the responsibilities of the Director of the Michigan State Police described in Executive Directive 2003-13 are consistent with the then current management and operation of the MPSCS; accordingly, the Governor did not by executive directive attempt to effectuate an interdepartmental transfer of functions within the executive branch requiring an executive order under Const 1963, art 5, � 2.

Your sixth question asks whether ED 2003-13 replaces ED 2003-12 in its entirety or only to the extent of any conflicting language between the two.

On August 6, 2003, the Governor issued ED 2003-13, which states that she deemed it "necessary to amend" ED 2003-12 and "order[s] that Executive Directive 2003-12 be amended to read as follows." Further, the title of ED 2003-13 characterizes it as an "amendment of Executive Directive 2003-12."

A comparison of the two directives reveals that ED 2003-13 restates the text of ED 2003-12 to clarify a number of its provisions. It also changes responsibilities and requirements in the implementation of the policy by the now named state departments. ED 2003-13, however, does not merely provide the text of the amended portions of ED 2003-12; it restates the text of ED 2003-12 in its entirety except for the amended portions. Thus, ED 2003-13 contains the complete recitation of the amended policy. Research discloses no legal basis upon which to construe this unambiguous language other than in accordance with its plain meaning.

It is my opinion, therefore, in answer to your sixth question, that Executive Directive 2003-13 replaces Executive Directive 2003-12 as originally issued in its entirety and supersedes the initial directive.

Your seventh question asks whether an Agency must pay for damages to the Michigan Public Safety Communications System facilities caused by the Agency's equipment even if state personnel, engaging in tasks involving the Agency's equipment, cause the damage.

Your question relates to section A.2 of ED 2003-13 which states: "[t]he governmental public safety agency seeking to utilize the MPSCS agrees to pay any damages to the MPSCS caused by the agency's public safety agency communications equipment or by the installation or maintenance of the equipment."

Section A.2 is one of several requirements to which an Agency seeking to use the MPSCS under this directive must agree in order to install its own communication equipment on MPSCS facilities. The directive as written does not provide an exception for the scenario described in your question. Section A.2, however, provides that the Agency's use of the MPSCS will be subject to an agreement governing the "cost, installation, and priority of equipment." The directive's general expression of policy does not appear to be meant to cover all questions and scenarios regarding an Agency�s use of the MPSCS. Thus, specific situations that may arise involving risks and liabilities appear intended to be resolved within the requirements of the contemplated agreement.

It is my opinion, therefore, in answer to your seventh question, that Executive Directive 2003-13 provides for a governmental public safety agency's assumption of liability for any damage caused by the agency's equipment to the MPSCS, but it does not preclude modification of this provision or more detailed implementation of the directive's general policy by mutual written agreement of the parties.

Your eighth question refers to section F of Executive Directive 2003-13, which states that, as used in the directive, "the terms 'governmental public safety agency' or 'Agency' have the same meaning as the term 'governmental public safety agency' under [the MPSCS Act]." You ask what the legal effect of this provision is in light of the Legislature not having defined the specified term in the MPSCS Act.

ED 2003-13 simply establishes that a consistent meaning is intended between the terms "Agency" and "governmental public safety agency" as used in the directive and the term "governmental public safety agency" as used in the MPSCS Act. As explained above in answer to your fourth and fifth questions, an executive directive does not have the force and effect of law, but rather it represents the exercise of the Governor's general supervisory authority over the executive branch. Thus, the directive's provisions explaining the meaning of certain terms used in the directive is of primary significance to those within the executive branch expected to carry out its directions. To the extent any confusion may arise in this regard, such questions are best resolved between the Governor and the Director of the MSP.

It is my opinion, therefore, in answer to your eighth question, that the provision of Executive Directive 2003-13 defining the meaning of "governmental public safety agency" and "Agency" as used in the directive to be the same as "governmental public safety agency" under the Michigan Public Safety Communications System Act merely establishes that the directive intends the meaning of the terms to be consistent. In that executive directives represent the exercise of the Governor's supervisory authority and do not acquire the force and effect of law, any confusion as to the meaning of the terms used in the directive can best be resolved between the Governor and the parties over whom the supervisory authority is exercised.