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

MIKE COX, ATTORNEY GENERAL

GOVERNOR:

APPOINTMENTS:

MICHIGAN GAMING CONTROL AND REVENUE ACT:

PUBLIC OFFICERS AND EMPLOYEES:

LEGISLATURE:

ADVICE AND CONSENT:

Length of term of office of Executive Director of Michigan Gaming Control Board and manner of appointment to office

The Governor is authorized to appoint the Executive Director of the Michigan Gaming Control Board to serve a six-year term under section 4(8) of the Michigan Gaming Control and Revenue Act, MCL 432.204(8).

An individual appointed by the Governor as Executive Director of the Michigan Gaming Control Board under MCL 432.204(8) may not assume the duties of the office immediately upon executing the oath of office required by Const 1963, art 11, 1 but rather must wait to assume the duties of the office until after the appointment is approved by the Senate by a record roll call vote.

Opinion No. 7200

February 23, 2007

Honorable Jennifer M. Granholm
Governor
The Capitol
Lansing, MI

You have asked two questions concerning the office of Executive Director of the Michigan Gaming Control Board. Your questions pertain to the length of the Executive Director's term of office and the process by which appointment to this office is approved by the Senate.

You first ask whether the Governor is authorized to appoint the Executive Director of the Michigan Gaming Control Board to the six-year term provided for in the applicable statute or is limited by Const 1963, art 5, 3 and OAG, 2005-2006, No 7178, p ___ (August 2, 2005), to appointing the Executive Director to a four-year term. Your letter indicates that you intend to fill a current vacancy in this office soon. This response, accordingly, has been prepared on an expedited basis.

The Michigan Gaming Control and Revenue Act (Act), MCL 432.201 et seq, is an initiated law that took effect on December 5, 1996. The Legislature substantially amended the Act in 1997 with the requisite supermajority vote by enacting 1997 PA 69. Section 4(1) of the Act establishes the Michigan Gaming Control Board, and section 4(2) describes its membership: "The board shall consist of 5 members . . . to be appointed by the governor with the advice and consent of the Senate . . . ." MCL 432.204(1) and (2). Under section 4(3): "The members shall be appointed for terms of 4 years." MCL 432.204(3). The Act also dictates that one member "shall be designated by the governor to be chairperson." MCL 432.204(2).

A different subsection of section 4 of the Act, MCL 432.204(8), establishes the position of Executive Director of the Board, a gubernatorial appointee who serves a six-year term of office and performs those duties assigned by the Board:

The governor shall appoint the executive director of the board to serve a 6-year term. After the effective date of the act that added this subsection, the appointment of the executive director shall require the approval of the senate by a record roll call vote. The executive director shall perform any and all duties that the board shall assign him or her. The executive director shall be reimbursed for all actual and necessary expenses incurred by him or her in discharge of his or her official duties. The executive director shall keep records of all proceedings of the board and shall preserve all records, books, documents, and other papers belonging to the board or entrusted to its care. The executive director shall devote his or her full time to the duties of the office and shall not hold any other office or employment. A vacancy in the position of executive director shall be filled as provided in this subsection for a new 6-year term. [Emphasis added.]

Your first inquiry seeks to resolve whether the six-year term of office for the Executive Director established in MCL 432.204(8) violates the four-year limitation on "[t]erms of office of any board or commission" created or enlarged after the effective date of the 1963 Constitution stated in Const 1963, art 5, 3. That section provides, in its entirety:

The head of each principal department shall be in a single executive unless otherwise provided in this constitution or by law. The single executives heading principal departments shall include a secretary of state, a state treasurer and an attorney general. When a single executive is the head of a principal department, unless elected or appointed as otherwise provided in this constitution, he shall be appointed by the governor by and with the advice and consent of the senate and he shall serve at the pleasure of the governor.

When a board or commission is at the head of a principal department, unless elected or appointed as otherwise provided in this constitution, the members thereof shall be appointed by the governor by and with the advice and consent of the senate. The term of office and procedure for removal of such members shall be as prescribed in this constitution or by law.

Terms of office of any board or commission created or enlarged after the effective date of this constitution shall not exceed four years except as otherwise authorized in this constitution. The terms of office of existing boards and commissions which are longer than four years shall not be further extended except as provided in this constitution. [Emphasis added.]

OAG No 7178 examined art 5, 3 and determined that the above-italicized language in the third paragraph of art 5, 3 applied to limit to four years the statutorily prescribed six-year terms of office of members of the Michigan Historical Commission, whose membership was enlarged after the effective date of Const 1963. Because the Michigan Gaming Control Board was created after the effective date of Const 1963, its members may likewise serve terms of no longer than four years.1  The question then becomes whether, under the Michigan Gaming Control and Revenue Act, the Executive Director is a member of the Michigan Gaming Control Board. If the Executive Director is a member of the Board, his or her term of office may extend no longer than four years, and the six-year term provided for under the Act may not be constitutionally realized, but if the Executive Director is not a member of the Board, then appointment to this office is for the six-year term.

A review of all the provisions of the Act leads to the conclusion that the Executive Director is not a member of the Board and, therefore, may lawfully serve the six-year term established by the Act. The membership of the Board is established in a different subsection of the Act than is used to establish the office of Executive Director. The Executive Director is appointed for a six-year term, whereas members of the Board are appointed to a four-year term. The Executive Director's appointment requires approval of the Senate by a record roll call vote, whereas a board member's appointment requires the advice and consent of the Senate. The Board is given responsibility for the implementation of the Act, including the authority to decide casino license applications, promulgate rules, and provide for the levying and collection of fines and penalties for violations of the Act, MCL 432.204(17), whereas the Executive Director performs the duties that the Board assigns him or her. MCL 432.204(8). Moreover, other provisions of the Act refer to board members and the Executive Director as separate officers in the same sentence, providing further textual evidence that board members and the Executive Director serve in distinct positions. See e.g., MCL 432.204(11) and (13), and MCL 432.204d(22).2  All these distinctions reflect that the Legislature did not intend the Executive Director of the Board to serve as a "member" of the Board.

Complete analysis of your first question, however, requires consideration of one additional issue. It must be observed that the third paragraph of art 5, 3 is worded in such a way that, technically speaking, the four-year term-of-office limitation applies to "any board or commission" created or enlarged after Const 1963 took effect, and not to the "the members of" any such board or commission.3  Even though it is not a board or commission itself but rather its members who, logically, may serve a term of office, this could raise a question whether the third paragraph of art 5, 3 is meant to apply to more than a board's or commission's members alone.

When interpreting a constitutional provision, the task is to give effect to the common understanding of the text:

"A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. 'For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.' (Cooley's Const Lim 81)." Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). [Lapeer County Clerk v Lapeer Circuit Court, 469 Mich 146, 155; 665 NW2d 452 (2003); brackets omitted.]

Courts usually examine the plain meaning of the provision's terms to derive the common understanding. Wayne County v Hathcock, 471 Mich 445, 468-469; 684 NW2d 765 (2004). While the intent of the people must be inferred from the language used, it is not the meaning of the particular words in the abstract or their strictly grammatical construction that governs. The words are to be applied to the subject matter and to the general scope of the provision, and they are to be considered in light of the general purpose sought to be accomplished by the provision. White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979) (citation omitted). In applying the rule of common understanding, the task is to search for "contextual clues" about a provision's meaning. People v Nutt, 469 Mich 565, 574 n 7; 677 NW2d 1 (2004). A provision's meaning may also be clarified by considering the circumstances surrounding the provision's adoption and its intended purpose. Federated Publications, Inc v Michigan State Univ Bd of Trustees, 460 Mich 75, 85; 594 NW2d 491 (1999). But if the meaning of a provision is apparent from the plain language of its text, it is unnecessary to consider its history and the circumstances surrounding its adoption. County Rd Ass'n of Michigan v Governor, 474 Mich 11, 17; 705 NW2d 680 (2005).

Reading art 5, 3 as a whole demonstrates that the phrase "[t]erms of office of any board or commission" refers to the terms of office of any board's or commission's constituent members. The first paragraph of art 5, 3 refers to single executives serving as heads of principal departments. The second paragraph addresses boards or commissions that serve as heads of principal departments. That paragraph also specifically addresses members of those boards or commissions: they must be appointed by the Governor and their terms of office and procedure for their removal must be as prescribed in the constitution or by law.

Paragraph three then begins by placing the four-year limitation on the terms of office of any board or commission created after the effective date of the constitution. Given that the sentence immediately preceding this limitation addresses the terms of office and procedure for removal of members of boards and commissions, the interpretation that paragraph three also addresses members effectuates the sense best regarded as "most obvious to the common understanding." Lapeer County Clerk, 469 Mich at 155 (italics omitted). A "board" is comprised of its members, and any other interpretation would improperly assign a strained and "abstruse" meaning to the words of the provision. Id. Thus, art 5, 3's reference to the term of office of the board means the term of office of its members.

While the meaning of this provision is apparent from the language of its text when read in context, its history and the circumstances surrounding its adoption add further support to the conclusion that paragraph three of art 5, 3 was directed solely at members of a board or commission. County Rd Ass'n of Michigan, 474 Mich at 17. Although not conclusive, the debates at the Constitutional Convention are the "most instructive tool for discerning the circumstances surrounding the adoption of [a] provision." House Speaker v Governor, 443 Mich 560, 580-581; 506 NW2d 190 (1993).

The Official Record indicates that the third paragraph of art 5, 3 originated as part of a larger amendment to Committee Proposal 71. As initially introduced, the pertinent part of the amendment stated:

"Approval of the governor [of an appointment made by a board or commission] shall not be required with respect to the chief executive officer of an appointed board or commission heading a principal department.

No member of any board or commission created or enlarged after adoption of this constitution shall have a term longer than 4 years. The terms of members of existing boards and commissions, other than as provided in this constitution, which are greater than 4 years shall not be further extended." [2 Official Record, Constitutional Convention 1961, p 1871.]

Without doubt, those who introduced the amendment intended that it would apply only to members of boards or commissions.

The impact of this amendment was discussed at length in the Official Record. The first paragraph of the amendment, some delegates claimed, was directed primarily at the state board of education. Id., at 1871 (statement by Delegate Durst). The second paragraph of the amendment more broadly applied to any new or enlarged board or commission and was aimed at giving the Governor some control over boards and commissions:

Now, if they have terms of more than 4 years, they may very well be in a position where they can act contrary to the policy or the philosophy of the governor, and we feel that where boards are heading principal departments, it is preferable that he have the appointive power over them, and that they be, in a sense, responsive to his general overall supervision; which would be much more difficult if the terms of the commissioners or board members exceed a 4 year period. [Id., at 1871-1872 (statement by Delegate Hatch).]

Delegate Hatch later added,

Now, where you have boards and commissions which the legislature may establish and give a term, we feel that they should not have a term longer than the term of the governor himself. The idea is to strengthen the position of the governor with respect to the boards and commissions in the executive branch. [Id., at 1874.]

When this amendment first came to a vote, a majority of the delegates rejected it. Id., at 1883. The following slightly different form of the amendment was later passed:

"No member of any board or commission created or enlarged after adoption of this constitution shall have a term longer than 4 years. The terms of members of existing boards and commissions, other than as provided in this constitution, which are greater than 4 years shall not be further extended." [Id., at 2205, 2206-2207.]

Thereafter, the provision was referred to the committee on style and drafting, which suggested the changes that removed the references to "members" in the provision. Id., at 2742-2744.

In eventually adopting the change of "terms of office of members" to "terms of office of boards or commissions," it appears that the delegates did not perceive the shift in language as broadening the scope of the provision. (Emphasis added.) See Id., at 1871 (statements of Delegate Durst and Delegate Hatch), 1874 (statement of Delegate Hatch), 1876 (statement of Delegate Martin), 1879 (statement of Delegate Faxon), and 2205 (statement of Delegate Durst) (all using "terms of office of members" and "terms of office of boards" interchangeably).4

Because the phrase "[t]erms of office of any board or commission" in art 5, 3 applies only to board members, it does not encompass the office of the Executive Director of the Michigan Gaming Control Board and has no effect on the statutorily prescribed six-year term of the Executive Director of the Michigan Gaming Control Board.

It is my opinion, therefore, in answer to your first question, that the Governor is authorized to appoint the Executive Director of the Michigan Gaming Control Board to serve a six-year term under section 4(8) of the Michigan Gaming Control and Revenue Act, MCL 432.204(8).

Your second question asks whether an individual appointed by the Governor as Executive Director of the Michigan Gaming Control Board may assume the duties of the office immediately upon executing the oath of office mandated by Const 1963, art 11,  1 5 or must wait to assume the duties of the office until after the appointment is approved by the Senate by a record roll call vote.

Your question presents circumstances that arise after the effective date of 1997 PA 69, the act that added subsection 8 of section 4 to the Michigan Gaming Control and Revenue Act. It therefore requires examination of the following controlling provision of the Act: "After the effective date of the act that added this subsection, the appointment of the executive director shall require the approval of the senate by a record roll call vote." MCL 432.204(8). This phraseology for describing Senate approval of a gubernatorial appointment appears to be unique to the Michigan Gaming Control and Revenue Act. Its interpretation presents an issue of first impression.

The fundamental rule of statutory construction is to give effect to the Legislature's intent. "If the intent is clear, and the statute is unambiguous, the statute must be read as the Legislature wrote it." Dewan v Khoury, 477 Mich 888, 889; 722 NW2d 215 (2006), citing Weakland v Toledo Engineering Co, Inc, 467 Mich 344, 347; 656 NW2d 175 (2003). Words and phrases must be read in context, and a statute must be read in its entirety. Sweatt v Dept of Corrections, 468 Mich 172, 179; 661 NW2d 201 (2003).

The words "approval of the senate" applicable to the appointment of the Executive Director are plain in stating a requirement that an appointment must be approved by the Senate, but this does not alone resolve the issue of timing at the heart of your question. When these words are read in full context, however, it is instructive to observe that they stand in contrast to the language used by the Legislature concerning appointment to membership on the Michigan Gaming Control Board, which requires "the advice and consent of the senate." Compare MCL 432.204(8) with MCL 432.204(2).

Const 1963, art 5, 6 provides a constitutional definition of "appointment by and with the advice and consent of the senate":

Appointment by and with the advice and consent of the senate when used in this constitution or laws in effect or hereafter enacted means appointment subject to disapproval by a majority vote of the members elected to and serving in the senate if such action is taken within 60 session days after the date of such appointment. Any appointment not disapproved within such period shall stand confirmed.

As explained in the Address to the People: "This procedure provides ample opportunity for the senate to render a negative judgment on appointees. At the same time, it permits appointments to become effective unless the senate is willing to go on record as rejecting the appointees. It prevents withholding of confirmation simply by failure to act on appointments." 2 Official Record, Constitutional Convention 1961, p 3379.

Thus, as discussed in numerous Attorney General opinions, the constitutional definition of "appointment by and with the advice and consent of the senate" squarely addresses the timing by which an appointee whose appointment is subject to advice and consent may assume the duties of office. Upon filing the oath of office, a person whose appointment to office by the Governor requires the advice and consent of the Senate may assume the duties of the office immediately and may continue to hold office unless within 60 session days following submission of the appointment to the Senate, the Senate rejects the appointment. See, e.g., OAG, 1983-1984, No 6120, pp 7, 9 (January 13, 1983), citing OAG, 1965-1966, No 4531, p 393 (December 27, 1966).

This approach represents a change from the practice that prevailed under the 1908 Constitution, under which an appointment requiring advice and consent of the Senate made by the Governor while the Senate was in session was not effective until confirmed, as explained in OAG, 1939-1940, pp 141, 142-143 (July 7, 1939). That opinion described the principle as "well established" that, "where the law requires the approval or confirmation of an appointment by a governing legislative body, the appointment is not complete until such approval or confirmation is made." Id., at 142 (citations omitted). See also OAG No 4531 at 401-405. This former practice is similar to that followed by the President of the United States pursuant to the appointing power conferred on him under the federal constitution, under which an appointment was more in the nature of a nomination and approval by the Senate was a condition precedent to the complete investiture of the office. OAG No 4531 at 401-402.

Under this former practice, preventing the appointee from taking office until after the Senate had affirmatively granted approval created the potential for disruptive delays or, if the Senate chose not to act at all, the office remained vacant. The Attorney General noted in OAG No 4531 the "painstaking care with which the drafters of the Constitution of 1963 undertook to define the function of advice and consent of the senate" to reflect their concern over the "unsatisfactory practice in this regard which had developed under the Constitution of 1908." Id., at 405-406. The delegates to the Constitutional Convention cited preventing this delay as one reason for including the definition of advice and consent now found in art 5, 6 of the 1963 Constitution. Id., at 397-399, 405-406.

The question then becomes whether, by requiring the "approval" of the Senate in connection with the appointment of the Executive Director under MCL 432.204(8) instead of the "advice and consent" of the Senate, the Legislature meant for a different practice – and different timing – to apply than would have been required if the "advice and consent" words of art 5, 6 had been used. 6  In construing statutes, it is presumed that the Legislature uses each word for a purpose. Niles Twp v Berrien County Bd of Comm'rs, 261 Mich App 308, 315; 683 NW2d 148 (2004). Similarly, it cannot be assumed "'that the Legislature inadvertently made use of one word or phrase instead of another.'" Id., quoting Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000).

In the case of MCL 432.204(8), the Legislature's purposeful selection of the statutory text under review is confirmed upon examining the relevant legislative history. Tracking the progress of the bill that became 1997 PA 69 through the legislative process reveals that the Legislature considered an amendment that would have required approval of the appointment of the Executive Director by advice and consent of the Senate (as with Board members) rather than by the approval of the Senate by roll call vote and that the amendment was rejected by a vote of 35 (yeas) to 71 (nays). See 1997 Journal of the House 1527-1528. Having rejected language that would have permitted the Executive Director appointee to take office immediately upon filing the constitutional oath, without a vote of approval by the Senate, and instead requiring an affirmative vote of Senate approval by record roll call vote, the words selected convey the intent of the Legislature and must be effectuated as written.

Moreover, because MCL 432.204(8) provides that "the appointment of the executive director shall require" the Senate's approval, the Legislature has indicated that, consistent with the rule that shaped practice under the 1908 Constitution in which "appointment by and with the advice and consent of the senate" was not defined, the appointee must first receive Senate approval by roll call vote as a condition precedent to the appointment becoming complete and effective. (Emphasis added.) The appointee cannot take office before the appointment is complete and, therefore, cannot take office until after having received the Senate's approval. While this represents a break from traditional practice, and carries with it the potential for the problems and delays the framers sought to prevent by adoption of art 5, 6 in the 1963 Constitution, it is nevertheless the result that most faithfully enforces the plain text of MCL 432.204(8). 7

It is my opinion, therefore, that an individual appointed by the Governor as Executive Director of the Michigan Gaming Control Board may not assume the duties of the office immediately upon executing the oath of office required by Const 1963, art 11,  1 but rather must wait to assume the duties of the office until after the appointment is approved by the Senate by a record roll call vote.

MIKE COX
Attorney General

1 As stated above, MCL 432.204(3) establishes a four-year term for members of the Board and is thus consistent with the mandate of art 5, 3.

2
MCL 432.204(11) requires the filing of financial disclosure statements by "[e]ach member of the board, the executive director, and each key employee as determined by the board."  MCL 432.204(13) prohibits "[a] member of the board, executive director, or key employee" from holding certain interests and taking certain other actions.  Under MCL 432.204d(22), the chairperson of the board must report certain actions he or she has taken or plans to take, after which "the board may direct the executive director to take additional or different action."  The Michigan Gaming Control Board's administrative rules also distinguish between board members and the Executive Director.  See, e.g., 1998 MR 6, R 432.1215.

3 Again, the pertinent text reads:  "Terms of office of any board or commission created or enlarged after the effective date of this constitution shall not exceed four years."  Const 1963, art 5, 3.

4 Moreover, at least one publication made available before the vote on the proposed constitution informed the ratifiers that this provision referred to "members."  The Citizens Research Council of Michigan, in its publication "An Analysis of the Proposed Constitution" (December 27, 1962), described this provision:  "The term of office for any statutory board or commission 'created or enlarged' under the proposed constitution would be a maximum of four years, however.  This feature would increase the governor's power to appoint members of such boards during his four-year term."  Id., at 3-4 (emphasis added).

5 This provision requires all legislative, executive, and judicial officers, before entering upon the duties of their offices, to take and subscribe an oath to support the Constitution of the United States and this State and to faithfully discharge the duties of their offices according to the best of their abilities.

6 Your request does not ask, and this opinion does not address, the constitutionality of a statutory requirement for legislative approval of an executive appointment in a manner involving other than "the advice and consent of the Senate." See Const 1963, art 5, 6 and Const 1963, art 4, 38. It is axiomatic that statutes are entitled to a presumption of constitutionality. Rohan v Detroit Racing Ass'n, 314 Mich 326, 341-342; 22 NW2d 433 (1946).

7 This office is advised that, from the time the vacancy in the office of Executive Director first arose to the present, the duties of the office have been performed by other employees or staff members of the Board and that all necessary operations have continued. It is presumed that this status quo or an equivalent status that assures the continued operations of the Board will be maintained until such time as the vacancy in this office is filled.