Alabama Advisory Opinions October 18, 2005: AGO 2006-007 (October 18, 2005)

Alabama Attorney General Opinions

2005.

AGO 2006-007.

Dear Dr. Hammonds:

This opinion of the Attorney General is issued in response to your request on behalf of the Board of Education of Jefferson County.

QUESTIONS

1. For purposes of holding an election pursuant to Amendment 175 with regard to the levy of a 5-mill school district ad valorem tax, must the school tax district in which the tax would be levied be the 1992 5-Mill Jefferson County School District (as defined herein) utilized for purposes of the 1992 election, or may the Board create the New 5-Mill Jefferson County School District (as defined herein) for purposes of the proposed tax levy, which new school tax district excludes those portions of the county no longer served by the Board?

2. For purposes of holding an election pursuant to Amendment 382 with regard to the levy of a 3-mill school district ad valorem tax, must the school tax district in which the tax would be levied be the 1992 3-Mill Jefferson County School District (as defined herein) utilized for purposes of the 1992 election, or may the Board create the New 3-Mill Jefferson County School District (as defined herein) for purposes of the proposed tax levy, which new school tax district excludes those portions of the county no longer served by the Board?

FACTS AND ANALYSIS

Pursuant to elections held on September 29, 1992, there are currently being levied in certain school tax districts in Jefferson County ("County") a 5-mill school district ad valorem tax ("5-Mill Tax") and a 3-mill school district ad valorem tax ("3-Mill Tax") for public school purposes. The school tax districts in which the 5-Mill Tax and the 3-Mill Tax are being levied are set forth in the 1992 resolutions of the Board requesting that the Jefferson County Commission order elections with regard to the levy of such taxes. The school tax districts, for purposes of the 5-Mill Tax and the 3-Mill Tax, are identical and are defined as all of the County outside the corporate limits of the Cities of Birmingham, Bessemer, Fairfield, Homewood, Hoover, Midfield, Mountain Brook, Tarrant City, and Vestavia Hills within the County (such school tax districts are referred to herein individually as the "1992 5-Mill Jefferson County School District" and the "1992 3-Mill Jefferson County School District," respectively, and collectively as the "1992 Jefferson County School Districts"). At the time of the said elections, the area constituting the 1992 Jefferson County School Districts was served exclusively by the Board.

The 5-Mill Tax is being levied pursuant to section 15 of the Recompiled Constitution of Alabama (amend. 175), as amended by Amendments 260 and 298 (referred to herein, as amended, as "Amendment 175"), and the said election held on September 29, 1992. Pursuant to the ballot used in said election, the 5-Mill Tax is to be levied as follows:

[F]or a period of fifteen (15) years commencing with the tax year beginning on October 1, 1992 (for which state and county taxes will become due and payable on October 1, 1993), and continuing to and including the tax year beginning on October 1, 2006 (for which state and county taxes will become due and payable on October 1, 2007).

The 3-Mill Tax is being levied pursuant to section 269.05 of article XIV of the Recompiled Constitution of Alabama (amend. 382), as amended (referred to herein as "Amendment 382"), and the said election held on September 29, 1992. Pursuant to the ballot used in said election, the 3-Mill Tax is to be levied as follows:

[F]or a period of fifteen (15) years commencing with the tax year beginning on October 1, 1992 (for which state and county taxes will become due and payable on October 1, 1993), and continuing to and including the tax year beginning on October 1, 2006 (for which state and county taxes will become due and payable on October 1, 2007).

Subsequent to the 1992 elections, with regard to the 5-Mill Tax and the 3-Mill Tax, the responsibility for public education in certain portions of the 1992 Jefferson County School Districts has been assumed by various municipal boards of education. The City of Leeds ("Leeds") and the City of Trussville ("Trussville") both formed their own school systems and assumed responsibility for those students residing in Leeds and Trussville, respectively. The City of Vestavia Hills ("Vestavia Hills") annexed a portion of the 1992 Jefferson County School Districts and assumed responsibility for those students residing in the annexed area.

For purposes of renewing these two taxes, the Board is proposing to create identical new school tax districts, for each tax, that are defined as all of the County outside the corporate limits of the Cities of Birmingham, Bessemer, Fairfield, Homewood, Hoover, Leeds, Midfield, Mountain Brook, Tarrant City, Trussville, and Vestavia Hills within the County (such school tax districts are referred to herein individually as the "New 5-Mill Jefferson County School District" and the "New 3-Mill Jefferson County School District" and collectively as the "New Jefferson County School Districts," as appropriate). The New Jefferson County School Districts would consist solely of that portion of the County served by the Board at the time of the elections regarding the renewal of these taxes. Thus, the Board would only be seeking a renewal of these taxes in that portion of the 1992 Jefferson County School Districts served by the Board at the time of renewal elections. The renewal of these two taxes in those portions of the 1992 Jefferson County School Districts that are now served by municipal boards of education would be left to the municipal boards of education serving such areas.

With regard to your first question, Amendment 175, as amended, provides as follows:

In addition to any taxes now authorized or that may hereafter be authorized by the Constitution and laws of Alabama, the several school districts of Jefferson county shall, subject to an election in each such school district as hereinafter provided, have power to levy and collect a special district tax of not exceeding fifty (50) cents on each one hundred dollars ($100) of taxable property in such district for the furtherance of education therein. A school district within the meaning of this section shall include (a) That part of Jefferson county outside of the municipalities of Birmingham, Bessemer, Fairfield, Tarrant city and Mountain Brook as one district, except that the Jefferson county board of education is authorized and empowered to designate any part of portion of said district as a separate school district, (b) the city of Birmingham as one district, (c) the city of Bessemer as one district, (d) the city of Fairfield as one district, (e) the city of Tarrant City as one district, and (f) the city of Mountain Brook as one district. No tax shall be levied hereunder unless the rate of such tax, the time such tax is to continue and the purpose thereof shall have been first submitted to the vote of the qualified electors in such district and voted for by a majority of those voting at such election. Any election on any such district tax shall be called and held, the results declared, and the tax levied and collected in the same manner as now or hereafter provided by law in the case of school district taxes authorized by amendment III to the Constitution of Alabama [§§ 269.01-269.03], except that no county-wide tax shall be required as a condition precedent for a district tax under this amendment. The holding of one election shall not preclude a later election in the same district but no election in a district shall be held within two years from the date of the last election held in such district under the authority of this amendment. The proceeds of any special district tax authorized by this amendment shall be expended for the support of education only in the special district or separate district in which the tax is levied.

Ala. Const. Local Amends., Jefferson County § 15 (amend. 175) (emphasis added).

Amendment 175, as amended, gives the Board the authority to create school tax districts in that part of the County outside the municipalities of Birmingham, Bessemer, Fairfield, Tarrant City, and Mountain Brook. Clearly, the New 5-Mill Jefferson County School District lies within that portion of the County in which the Board is authorized to create separate school tax districts. Your question is whether the previous designation of the 1992 5-Mill Jefferson County School District as a school tax district for purposes of levying a tax under Amendment 175 precludes the Board from creating a new school tax district, the New 5-Mill Jefferson County School District, for purposes of renewing the levy of such tax in such new school tax district upon the expiration of the current tax.

Nothing in Amendment 175 suggests that a school tax district, once created by the Board for purposes of levying a tax under Amendment 175, must continue to exist after the expiration of such levy so as to prevent the creation of new school tax districts encompassing part or all of the geographic area of the prior district for purposes of subsequent levies under Amendment 175.

The enabling legislation for Amendment 175 shows that the Legislature intended for the Board to be able to redefine the school tax districts, subject to the express parameters set forth in Amendment 175, upon the expiration of an existing levy. The Supreme Court of Alabama, in Runyan v.Thompson , 232 Ala. 390, 168 So. 423 (1936), held that, although Amendment 3 to the Constitution of Alabama authorizes a levy of a school district ad valorem tax, the machinery for putting such tax into effect must be provided by the Legislature. The Legislature provided such machinery by enacting article 9 of chapter 13 of title 16 of the Code (originally in the School Code of 1927).

Ala. Code § 16-13-180, et seq . (2001). Amendment 175 expressly provides that "any election on any such district tax shall be called and held, the results declared, and the tax levied and collected in the same manner as now or hereafter provided by law in the case of school district taxes authorized by amendment III [3] to the Constitution of Alabama . . ."

Ala. Const. Local Amends., Jefferson County § 15 (amend. 175). Thus, the provisions of article 9 of chapter 13 of title 16 of the Code apply to Amendment 175 as well.

Section 16-13-192 of the Code provides as follows:

The county board of education shall have a proper map of such school tax district made and recorded as herein provided.

The levy of the district school tax shall operate to fix the boundaries of such school tax district for the time of such special levy, except as hereinafter provided.

Ala. Code § 16-13-192 (2001) (emphasis added). The clear inference from section 16-13-192 is that once a levy approved by the voters of a district has expired, such district ceases to exist, and a new district must be created for purposes of any subsequent levy.

In an opinion to the Honorable William J. Trussell, this Office concluded that "[i]t appears that the concept of a district arises out of the need for flexibility in taxing residents for support of schools . . ." Opinion to Honorable William J. Trussell, Attorney, St. Clair County Board of Education, dated May 5, 1997, A.G. No. 97-00174. Such flexibility would be severely eroded if decisions regarding the designation of school tax districts made years (often decades) ago to serve the needs at such time prohibit subsequent redefining of school tax districts upon the expiration of the prior tax levies.

Accordingly, it is the opinion of this Office that the Board may create the New 5-Mill Jefferson County School District for purposes of the election with regard to the proposed tax levy.

With regard to your second question, Amendment 382 provides as follows:

In addition to any and all taxes now authorized, or that may be hereafter authorized by the Constitution and laws of Alabama, the several school districts of any in the state shall have power to levy and collect an additional special district school tax not exceeding thirty cents on each one hundred dollars worth of taxable property in such district for public school purposes in addition to that now authorized or that may hereafter be authorized for public school purposes; provided, that a school district under this section shall include incorporated cities or towns, or any school district of which an incorporated city or town is a part, or such other school districts now existing or hereafter formed as may be approved by the county board of education; provided, further, that the rate of such tax, the time it is to continue and the purpose thereof shall have been first submitted to the vote of the qualified electors of the district, and voted for by a majority of those voting at such election.

Ala. Const. § 269.05 (amend. 382).

Amendment 382 gives the Board the authority to create school tax districts for purposes of the amendment. Nothing in Amendment 382 suggests that a school tax district, once created by the Board for purposes of levying a tax under Amendment 382, must continue to exist after the expiration of such levy so as to prevent the creation of new school tax districts encompassing part or all of the geographic area of the prior district for purposes of subsequent levies under Amendment 382.

In Trussell, this Office opined that the provisions of article 9 of chapter 13 of title 16 of the Code are also the enabling legislation for Amendment 382. Thus, the clear inference from section 16-13-192, that once a levy approved by the voters of a district has expired such district ceases to exist, would likewise apply to Amendment 382. The discussion above with regard to the concept of districts arising out of the need for flexibility in taxing residents for support of schools is equally applicable with regard to Amendment 382. Accordingly, it is the opinion of this Office that the Board may create the New 3-Mill Jefferson County School District for purposes of the election with regard to the proposed tax levy.

CONCLUSION

The Board of Education of Jefferson County may create the New 5-Mill Jefferson County School District for purposes of the election with regard to the proposed tax levy.

The Board may create the New 3-Mill Jefferson County School District for purposes of the election with regard to the proposed tax levy.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Mark Griffin, Legal Division, Department of Revenue.

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/MG

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