[nfbmi-talk] important revisions here but still applies

Wed Jul 18 11:43:18 UTC 2012

Commentary on Violations of Executive Organization Act with AG Opinion

July 14, 2012

This Michigan Attorney General Opinion and cases are binding. This is very important to note that a Commission such as the Commission for the Blind enacted

Under PA 260 can only be abolished with a Type III Transfer. Yet in Executive Order 2012-10 the Governor abolishes the Commission and the Act with a Type

II Transfer to itself. It is clear the intent of this is to abolish Public Act 260 which establishes the Michigan Commission for the Blind as well as abolishing the roll of the board of MCB along with its policy making and quasi-judicial powers.

 That is beyond the statutory authority of The Executive Organization Act itself which gives all Michigan Governors rather broad authorities,

but not this broad! Actually as all case law shows the Michigan Constitution of 1963 is not “self executing”. What executes it in these regards is The Executive Organization Act of 1965. Thus EO 2012-10 and all actions flowing from it violated statute on its face and indeed violated the Michigan Constitution itself by exceeding authorities granted to any Michigan Governor through that statute.

This is black letter law!

Sincerely,

Joe Harcz

Opinion #6675

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

Opinion No. 6675

February 19, 1991

GOVERNOR:

Authority to abolish boards and commissions under Const 1963, art 5, Sec. 2

CONSTITUTIONAL LAW:

Authority of Governor to abolish boards and commissions under Const 1963, art 5, Sec. 2

The people have in Const 1963, art 5, Sec. 2, given the Governor the authority to abolish boards and commissions subject to legislative disapproval.

Honorable John Engler

Governor of Michigan

The Capitol

Lansing, Michigan

You have sought my opinion regarding your authority as Governor to make changes both in the organization of the executive branch and in the assignment of

functions within executive branch departments and agencies. Specifically, you have asked whether the people have in Const 1963, art 5, Sec. 2, given the

Governor the authority to abolish boards and commissions.

Const 1963, art 5, Sec. 2, provides in its second paragraph:

Subsequent to the initial allocation, the governor may make changes in the organization of the executive branch or in the assignment of functions among

its units which he considers necessary for efficient administration. Where these changes require the force of law, they shall be set forth in executive

orders and submitted to the legislature. Thereafter the legislature shall have 60 calendar days of a regular session, or a full regular session if of shorter

duration, to disapprove each executive order. Unless disapproved in both houses by a resolution concurred in by a majority of the members elected to and

serving in each house, each order shall become effective at a date thereafter to be designated by the governor.

In the Address to the People, the Constitutional Convention commented regarding this provision as follows:

The section ... would retain in the hands of the legislature and the governor considerable discretion as to internal organization within principal departments.

The initial allocation of departments (see Schedule and Temporary Provisions) is left to the legislature.... Subsequently, the governor may make changes

in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration.

These changes become effective unless they are disapproved within 60 days by a majority of the members in both houses of the legislature.

2 Official Record, Constitutional Convention 1961, pp 3378-3379.

In Soap & Detergent Association v Natural Resources Commission, 415 Mich 728, 330 NW2d 346 (1982), the Michigan Supreme Court considered at length the Governor's

authority to transfer powers between executive agencies. At issue was the Governor's authority to transfer the rulemaking power to further restrict the

nutrient content of cleaning agents from the Water Resources Commission, where it had been placed by the Legislature, to the Natural Resources Commission.

The Court stated:

The constitutional provision of art 5, Sec. 2, was given effect in 1965 when the Legislature enacted the Executive Organization Act, MCL 16.101 et seq;

MSA 3.29(1) et seq. The act established 19 principal departments and made the initial allocation of functions among the d partments.

[O]n various occasions, the Governor has utilized his power to issue executive reorganization orders. [ Id., pp 742-743.]

The record of the constitutional convention indicates that the convention's purpose in including art 5, Sec. 2, was to facilitate economy and efficiency

in the executive agencies. 2 Official Record, Constitutional Convention 1961, p 1847 (comments of Mr. Pollock); p 1836 (comments of Mr. Martin); p 1837

(Comments of Mr. Bentley). The convention felt that the Legislature previously had failed to effectuate a reorganization itself, and that the Governor

was in the best position to accomplish the desired ends, having intimate knowledge of the problems. 2 Official Record, Constitutional Convention 1961,

p 1846 (comment of Mr. Pollock). The convention recognized that the reorganization power granted the Governor in p 2 of art 5, Sec. 2, was clearly legislative.

2 Official Record, Constitutional Convention 1961, p 1846 (comments of Mr. Heideman and Mr. Hutchinson). [ footnote omitted] Nonetheless, the delegates

chose to include this delegation to the Governor in the constitution, subject to vigorously debated checks deemed necessary to restrain the broad grant

of power. 2 Official Record, Constitutional Convention 1961, pp 1843-1854.

[T]he convention's purpose ... was to grant the Governor full legislative power to promote the most efficient possible executive department. [ Id., pp 745-747.]

Further support for the logic of this interpretation of the constitution is found in the Executive Organization Act. In McDonald v Schnipke, 380 Mich 14,

26; 155 NW2d 169 (1968), this Court held that art 5, Sec. 2, of the constitution was not self-executing, but that the Executive Organization Act served

as the enabling act of that provision. [ footnote omitted]

The Executive Organization Act establishes 19 principal departments. The act also provides a general mechanism for placing existing agencies into the framework

of the 19 principal departments. Three types of transfers could be effectuated. [ Id., p 748.]

Under a Type III transfer, the agency is abolished. MCL 16.103(c); MSA 3.29(3)(c). [ Id., p 749.]

No specific considerations are provided in the Executive Organization Act for the art 5, Sec. 2, activities--the subsequent reallocations by the Governor.

Yet in McDonald this Court held that the act was the implementing legislation for the constitutional section. The fair implication of this interpretation

is that the Governor, in exercising his powers, should use the transfer mechanism established in the Executive Organization Act, i.e., the provisions regarding

Type I through Type III transfers and the relationship between the departments and the transferred agencies. [ Id., p 750.]

The Court then considered the argument that if the Governor has the power to reorganize the executive branch such power would violate the doctrine of separation

of powers by commingling executive and legislative functions within the executive branch.

The Court held:

[W]hile art 3, Sec. 2, of the constitution provides for strict separation of power, [footnote omitted] this has not been interpreted to mean that the branches

must be kept wholly separate. [ citations omitted] Additionally, where, as in art 5, Sec. 2, the constitution explicitly grants powers of one branch to

another, there can be no separation of powers problem. [ citation omitted]

Article 5, Sec. 2, does not by any means vest "all"' or any considerable legislative power in the executive. While it is true that broad legislative power

has been delegated to the Governor to effectuate executive reorganization, this power is clearly limited. Three limitations must be emphasized. First,

the area of executive exercise of legislative power is very limited and specific. Second, the executive branch is not the sole possessor of this power;

the Legislature has concurrent power to transfer functions and powers of the executive agencies. Third, the Legislature is specifically granted the power

to veto executive reorganization orders before they become law.

Therefore, the specific intent of the constitutional convention in fashioning art 5, Sec. 2, having been to delegate a very limited and specific legislative

power to the executive, and this provision having been adopted into the constitution with sufficient checks to restrain an improper exercise of this power,

we find no constitutional infirmity negating the Governor's ability to transfer rulemaking authority from one agency to that agency's department head.

[ Id., pp 752-753.]

As the Supreme Court opinion, in n 10, p 746, states:

The nature and extent of the power granted to the Governor in art 5, Sec. 2, was most thoroughly discussed by the convention in the context of what restraints

should be placed upon the Governor's exercise of the power.

In fact, there was an effort made to reduce the Governor's reorganization authority by giving both the House and the Senate the individual power to veto

an executive order issued pursuant to art 5, Sec. 2.

Delegate Hutchinson spoke to the "tremendous political power"' the Governor would possess under art 5, Sec. 2:

Whoever has the power by an executive order to organize and to rearrange the departments of his government to suit his will has a tremendous political power,

because if, for instance, a particular function is being carried on in one department in a way which doesn't suit the governor and still he doesn't think

it politically wise, you know, to remove the head of the department or anything, he can, by a reorganization plan, simply take that function which is being

performed in a manner not suitable to him out of that department and place it someplace else. That is a tremendous political power.

2 Official Record, Constitutional Convention 1961, p 1844.

Delegate Pollock, speaking on this same issue, said:

[T]he governor is in a much better position to know what is needed within his own administrative structure than anybody else. I think certainly the legislature

should have the power to veto any proposal that is not in the public interest, but I do not think that this should be made easy, and I think it is not

too difficult by requiring a majority of both houses.

2 Official Record, Constitutional Convention 1961, p 1846.

Delegate Binkowski followed, saying:

However, I think basically the reason for having this form is to place the responsibility with the executive, who should know all about these administrative

agencies, and to allow him to initiate the programs, and therefore present them to the legislature. I think the reason for executive reorganization is

simply economy and efficiency in government.

If you are going to go ahead, as we have done, and give the executive the responsibility of lowering appropriations, then I think you have to give him the

responsibility in this area of his executive departments, so that he can eliminate or consolidate in the best interests of the state.

[T]he legislature does appropriate funds, so that if they are unhappy with any extension of power, so called power by the governor, if the governor should

create a new agency which they are dissatisfied with, they can effectively reduce the effectiveness of that organization. [ Emphasis added.]

2 Official Record, Constitutional Convention 1961, p 1848.

As the Supreme Court pointed out in Soap & Detergent Association, supra, it held in McDonald, supra, that the Executive Organization Act, supra, is the

enabling act of art 5, Sec. 2. In the Executive Organization Act the Legislature has provided that:

[A] type III transfer means the abolishing of an existing department, board, commission or agency.... [Emphasis added.]

MCL 16.103(c); MSA 3.29(3)(c).

It is my opinion, therefore, that the people have in Const 1963, art 5, Sec. 2, given the Governor the authority to abolish or eliminate boards and commissions.

Further, the Legislature has provided in the Executive Organization Act the procedure to be followed in doing so. Such action is, of course, subject to

the Legislature's right to disapprove an executive order doing so.

Frank J. Kelley

Attorney General

http://opinion/datafiles/1990s/op06675.htm

State of Michigan, Department of Attorney General

Last Updated 11/10/2008 16:49:34

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