Alabama Advisory Opinions September 07, 1989: AGO 89-00427 (September 07, 1989)

Advisory Opinion Text

Honorable James Buskey

Member, House of Representatives

2207 Barretts Lane

Mobile, Alabama 36617

Municipalities - Elections -Funds - Referenda

Code of Alabama 1975, § 11-81-52 permits the holding of a binding bond issue referendum in the City of Mobile. There is no prohibition against a non-binding referendum, if the referendum can be held at no cost to the municipality.

Dear Representative Buskey:

This opinion is issued in response to your request for an opinion from the Attorney General.

QUESTION 1

The first opinion I would request is whether the inclusion of an item on a ballot for an election would constitute the expenditure of municipal funds as intended by your opinion of February 16, 1982.

FACTS AND ANALYSIS

Your request presents the following facts:

In connection with the upcoming municipal election for Mayor in Mobile, a question has arisen concerning whether the City of Mobile may place on an existing ballot for an election already being held an additional issue concerning the proposed convention center in Mobile. The Mayor and City Council have taken the position that it could not be placed on the ballot for an upcoming election because of an existing opinion of your office dated February 16, 1982, a copy of which I am attaching, which states that the City of Anniston could not lawfully expend municipal funds for costs and expenses incurred in conducting a non-binding city-wide referendum.

The opinion noted in your request was issued to Honorable George Monk, City Attorney, City of Anniston, under date of February 16, 1982 (82-00198). The Anniston opinion is based on an opinion to Honorable Wade Baxley, City Attorney, City of Dothan, under date of May 8, 1980 (80-00347). The opinion to Dothan, in pertinent part, states:

"Under Section 11 of Act No. 79-537 the affirmative vote of three members of the Board of Commissioners is necessary for the passage of any resolution, bylaws or ordinance. The Board of Commissioners should be responsive, insofar as possible, to the needs and desires of those who elect them and this may be done in providing for public input at meetings of the Board of Commissioners, but the legislature has not seen fit to authorize the shifting of this obligation to the voters and thus expenditure of funds for a referendum is not proper. Therefore, it is the opinion of this office that the Board of Commissioners of the City of Dothan cannot legally allocate and spend public funds to hold a city-wide referendum to decide whether or not the public is in favor of the Board adopting a dog leash law."

The principle stated in the Dothan opinion was cited in the Anniston opinion which held that municipal funds could not be allocated and spent in order to hold a non-binding city-wide referendum on the question of a 1% increase in sales tax.

The prohibition in each of these opinions is one against the allocation and spending of municipal funds for the costs of a non-binding referendum. Therefore, if a referendum could be held at no cost to the municipality, then there would be no prohibition against the holding of the referendum. Because this office cannot decide questions of fact, we cannot tell you whether or not there would be additional costs in adding the referendum to a ballot in any specific set of circumstances. However, we should note that time limitations may make it physically impossible for this issue to be placed on a ballot for an election already scheduled.

CONCLUSION

If no municipal funds are allocated and expended, there is no prohibition against the adding of a non-binding referendum to the ballot for an upcoming election.

QUESTION 2

Second, if the City of Mobile was able to place the issue on the ballot, I presume since it is a non-binding issue there are no notice provisions.

FACTS, ANALYSIS AND CONCLUSION

You are correct. There are no statutory notice requirements for a non-binding referendum.

QUESTION 3

The third opinion I would like clarification on concerns whether Section 11-81-52 which provides that a municipality may order a binding election for the determination of the issuance of bonds would not in fact override your opinion of February 16, 1982.

FACTS AND ANALYSIS

Code of Alabama 1975, § 11-81-52 states:

"The governing body of any municipality in this state may order elections to be held in such municipality for the purpose of voting upon and deciding the question as to whether or not the bonds of such municipality shall be issued for such purposes as are authorized by law whenever such governing body deems this necessary."

Therefore, it is the opinion of this office that a municipality may, pursuant to the authority of Section 11-81-52, hold a binding referendum, paid for with municipal funds, on the question of whether or not bonds of the municipality shall be issued for one of the purposes set forth in Code of Alabama 1975, § 11-81-51. The Anniston and Dothan opinions both involved non-binding referenda on questions other than the issuance of bonds and these referenda were not specifically authorized by general or local law.

We note here that the City of Mobile is organized under the provisions of Code of Alabama 1975, § 11-44C-1, et seq . It does appear, however, that under the terms of Section 11-44C-12, Section 11-81-51 would be applicable to the City of Mobile.

CONCLUSION

Code of Alabama 1975, § 11-81-51, et seq ., permit the holding of a binding bond issue referendum in the City of Mobile.

I hope this sufficiently answers your questions. If our office can be of further assistance, please do not hesitate to contact us.

Sincerely,

DON SIEGELMAN Attorney General

CAROL JEAN SMITH, Assistant \attorney General.