Mississippi Advisory Opinions April 15, 2016: AGO 2016-00120 (April 15, 2016)

Advisory Opinion Text

AUTH: Avery Mounger Lee

RQNM: Wade White

SUBJ: Supervisors - Authority

SBCD: 220

TEXT: Wade White, Esquire

Neshoba County Board of Supervisors

501 Main Street

Philadelphia, Mississippi 39350

Re: Authority to transfer surplus funds from remaining loan proceeds

Dear Mr. White:

Attorney General Jim Hood is in receipt of your opinion request and has assigned it to me for research and response.

Facts

In your letter, you provide the following information:

Neshoba County borrowed not more than $250,000.00 in 2006 to acquire real property for a landfill, as well as to construct and engineer the landfill. This loan was obtained pursuant to Miss. Code Ann., Section 17-21-51. To date the loan has been paid in full. However, the balance of the loan proceeds that remains in the County coffers is approximately $125,000.00. Money from the sanitation fund of Neshoba County was used to retire the original $250,000.00 initial debt through the scheduled payments. It has, however, been learned that the sanitation fund has been operating in a deficit over the past several years and needs to be refunded. All this time, there is a positive balance of $125,000.00 in those loan proceeds.

Question Presented

May Neshoba County transfer the remaining loan proceeds to the sanitation fund, which was the fund in which was used to retire said loan?

Response

The surplus funds in the special fund for the construction and engineering of the landfill may be transferred to the general fund or to other funds in accordance with Section 27-105-367.

Legal Research and Analysis

Miss. Code Ann. Section 27-105-367 provides, in pertinent part:

(1) The board of supervisors and municipal governing authorities, by order spread on their minutes, may transfer any balance remaining in a special fund in the treasury of the county or municipality, as the case may be, to the general fund to be used for general purposes for the succeeding fiscal year if the purpose for which the special fund was created has been fully carried out. Taxes imposed for the succeeding fiscal year for county or municipal general purposes shall be reduced by the amount of such balance transferred from the special fund to the general fund.

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(2)(b) Whenever the surplus monies in any special fund shall be Two Thousand Five Hundred Dollars ($2,500.00) or more, the board of supervisors or the governing authorities of the municipality, as the case may be, desiring to transfer such surplus monies, shall cause notice of same to be published in some newspaper published in the county, district or municipality, as the case may be, for three (3) consecutive weeks or, if there be no newspaper so published, then in some newspaper having a general circulation in the county, district or municipality. Thereafter, the monies shall be transferred as stated in the order not less than thirty (30) days after the first publication in a newspaper as above stated, unless within said thirty (30) days, a petition against the proposed transfer, signed by twenty percent (20%) or fifteen hundred (1500), whichever is less, of the qualified electors residing in the county, district or municipality, as the case may be, shall be filed with the governing body. In the event such petition is filed, an election on the question of such transfer shall be called and held as herein provided. Notice of the election and manner of conducting it shall be the same as other elections conducted within counties or municipalities, as the case may be. The ballot shall have printed thereon the amount of surplus monies sought to be transferred, the purpose for which such monies were authorized to be used and a statement that a surplus exists in such fund, and the purpose for which such monies are sought to be used pursuant to their transfer. If a majority of the qualified electors voting in the election vote in favor of the transfer of surplus monies, then such monies shall be transferred. If a majority of the qualified electors voting in the election do not vote in favor of such transfer of surplus monies, then such monies shall not be transferred. Provided, however, that if the question of transferring the balance remaining in a special fund, the purpose for which such fund was created having been fully carried out, fails at an election held on same, then such monies shall be invested as authorized by law and shall be calculated in the budget for the county or municipality, as the case may be, to be used for general purposes for the succeeding fiscal year. Taxes imposed for the succeeding fiscal year for county or municipal general purposes shall be reduced by the amount of such monies in such special fund.

The loan authorized under Section 17-21-51 was for the purpose of borrowing a certain sum of money for construction and engineering of a landfill; however, the full balance of the money was not required. The remaining funds are, therefore, no longer needed for the special purpose for which they were intended. Section 27–105–367(1) allows the accumulated funds to be transferred into the general fund to be used for general purposes.

You inquire whether the surplus funds may be transferred directly to the sanitation fund, as the balance of the loan debt has been completely satisfied. If the surplus funds are to be transferred into a fund other than the general fund, the notice and publication requirements of Section 27–105–367(2)(b) must be followed. See MS AG Op., Holland (February 16, 1994); MS AG Op., Leggett (August 2, 1993).

If this office may be of any further assistance to you, please let us know.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Avery Mounger Lee, Special Assistant Attorney General