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 - http://www.ag.state.mi.us)



STATE OF MICHIGAN

DANA NESSEL, ATTORNEY GENERAL

CONSTITUTIONAL LAW:

CONST 1963, ART XI, § 5

INSURANCE CODE:

CIVIL SERVICE

The executive director of the Automotive Theft Protection Authority and the State’s classified service.

The position of executive director of the Automotive Theft Protection Authority is included in the State’s classified service pursuant to Chapter 61 of the Insurance Code of 1956, 1956 PA 218, MCL 500.6101 et seq, and article 11, § 5 of the Constitution.

Opinion No. 7312                                     December 18, 2020                                    

The Honorable Aaron Miller

State Representative

The Capitol

Lansing, MI  48909

The Honorable Joseph Tate

State Representative

The Capitol

Lansing, MI  48909

You have asked whether the executive director of the Michigan Automobile Theft Prevention Authority is a member of the State’s classified service

Your question regarding the position of executive director of the Automobile Theft Prevention Authority (ATPA), and whether the position is within the State’s classified service, requires consideration of both the dictates of the Michigan Constitution establishing the classified service and the statutory framework of the ATPA.

Michigan’s Constitution is the starting point for any question of whether an employment position is within the State’s classified service.  Article 11, Section 5 of the Michigan Constitution provides that “[t]he classified state civil service shall consist of all positions in the state service.”  There are limited, specific exceptions to this general rule, including the heads of principal departments, members of boards and commissions, and the principal executive officer of boards and commissions heading principal departments.  Const 1963, art 11, § 5.  Each principal department is also accorded two additional exempt positions, one of which must be policy-making.  Id.  In short, “all positions in the state service shall be in the classified state civil service” unless an explicit exemption applies.  OAG, 1965–1966, No. 4484, p 153 (October 13, 1965).

Turning to the statutory authorization granted by the Legislature to the ATPA, the Legislature created the ATPA pursuant to Chapter 61 of the Insurance Code of 1956, 1956 PA 218, as amended by 1992 PA 174, MCL 500.6101 et seq.  The ATPA was established to perform various tasks regarding automobile theft in the State, including evaluating how automobile thefts impact the citizens of Michigan.  MCL 500.6111.  The ATPA was created as a “public body corporate and politic” with the purposes, powers, and duties of the authority vested in a board of directors.  MCL 500.6103(1), (2).  A previous Attorney General Opinion, which evaluated the validity of a reduction in spending authority of the ATPA by Executive Order, affirmed the status of the ATPA as a public body corporate and politic that is neither a private corporation nor a municipal corporation, but is in “a class of artificial entities that have been designated ‘quasi corporations.’ ” [OAG, 2007-2008, No. 7203, p 41, at 43 (April 25, 2007), citing Advisory Opinion re Constitutionality of 1966 PA 346, 380 Mich 554 (1968).[1]  Quasi-corporations such as the ATPA may operate independently to the extent authorized by the Legislature, but Michigan law treats the ATPA as an instrumentality of the State.[2]       

As noted, the Constitution provides that heads of principal departments, members of boards and commissions, and the principal executive officers of boards or commissions that head principal departments are excepted from the classified service.  Const 1963, art 11, § 5.  The position of executive director of the ATPA does not fit within any of these categories.  Unlike the Department of State Police, which is a principal department of state government, headed by a department director who is excepted from classified service, MCL 16.104(5), 16.251, the ATPA is not an independent principal department.  Instead, the Legislature designated that the ATPA is housed within the Department of State Police, and the department controls several aspects of the ATPA’s function, including budgeting, procurement, and administrative responsibilities for ATPA employees.  MCL 500.6103(7).  The members of the ATPA board are excepted from the classified service by the terms of the Constitution, but any executive director position within the ATPA is not a “principal executive officer” of a board heading a principal department, because the ATPA is not an independent principal department.   

Further, the Legislature did not specifically create an executive director position within ATPA; rather, the Legislature created a board of directors to exercise the statutory ATPA powers.  MCL 500.6103.  Finally, no information provided with your request indicates that the Department of State Police designated the position of ATPA executive director as one of its limited, constitutionally-exempt positions.  Const 1963, art 11, § 5.

In your request, you noted the Michigan Supreme Court’s decision in City of Dearborn v Michigan Turnpike Authority, 344 Mich 37 (1955), and asked whether the Court’s reasoning applies to the ATPA.  It does not.  In that case, the Legislature created the Michigan Turnpike Authority, which was to be funded by toll roads, and authorized the authority to employ personnel and to fix their compensation.  The Turnpike Authority Act specifically provided that the authority’s funding “shall not be subject to supervision or regulation by any other commission, board, bureau or agency of the state.”  Id. at 57.  Because the Court concluded that the Turnpike Authority was completely independent of any state agency, its employees were exempt from the classified service.  Id. at 57–58.  As noted earlier, the ATPA is not completely independent from the Department of State Police, which controls the ATPA’s budgeting, procurement, and the administrative responsibilities for its employees.  MCL 500.6103(7). 

The position of executive director of the ATPA is not excepted from the classified service under the Constitution because the ATPA is not a principal department of government, nor is it independent of state government.  Rather, the ATPA is a state instrumentality subject to a degree of supervision and control by the Department of State Police, and, thus, its employees are subject to the Civil Service Rules and Regulations.  Further, the position of executive director of the ATPA has not been designated as one of the limited exempt positions within the Department of State Police.  It is our understanding that this conclusion is consistent with past practice between the Department of State Police and the Civil Service Commission, in that the executive director position for the ATPA was approved in 2016 as part of the classified service as a “State Police First Lieutenant” position

It is my opinion, therefore, that the position of executive director of the Automotive Theft Protection Authority is included in the State’s classified service pursuant to Chapter 61 of the Insurance Code of 1956, 1956 PA 218, MCL 500.6101 et seq, and article 11, § 5 of the Constitution.

Sincerely,

 

  

 

DANA NESSEL
Attorney General



[1] Advisory Opinion re Constitutionality of 1966 PA 346, 380 Mich 554 (1968), the Supreme Court considered the constitutionality of the Michigan State Housing Development Authority Act, which the Legislature gave similar authority to that of the ATPA and likewise established as a “public body politic and corporate.”  MCL 125.1421.  The Court concluded that the Act did not violate the Constitution, stating that MSHDA: 

… is merely a Quasi corporation, that is the clothing of an agency or instrumentality of state government with corporate powers to perform some public work in the course of the administration of civil government.  [380 Mich at 570.]

 

[2] In a recent unpublished decision, the United States District Court for the Eastern District of Michigan evaluated the status of the ATPA as a government entity entitled to immunity, and concluded that the ATPA is an arm of the State of Michigan and entitled to Eleventh Amendment immunity.  Joumaah v McMahon, No. 16-11802, 2016 WL 7337248, at *5 (ED Mich, Dec. 19, 2016).