Mississippi Advisory Opinions October 04, 1990: AGO 000007613 (October 4, 1990)

AGO 000007613.

Dear Mr. Hancock:

Attorney General Mike Moore has received your letter of September 14, 1990, concerning proposed fees that the city council would like to collect and has referred it to me to answer. Your questions will be answered individually.

Question: The City of Jackson, Mississippi, presently operates an emergency ambulance service as authorized by Section 41-55-1, Mississippi Code of 1972. The fees collected for the service do not provide sufficient operating funds, and additional funds needed to meet the operational requirements are provided from the general fund.

The personnel in charge of operating the emergency ambulance service have proposed what they have termed to be an "availability fee" in order to fund the operation of the service.

More specifically, the proposal states as follows:

This fee will consist of charging the approximate 65,000 homeowners and businesses located in the City of Jackson $2.50 a month, or $5.00 every two months, which equals to $30.00 per year. This rate breaks down to a cost of only .08 per day. This AVAILABILITY FEE will provide complete funding for the operation of the Emergency Ambulance Service.

In addition to the AVAILABILITY FEE there would also be a USER FEE. This USER FEE would be a minimum charge when the service is actually used. The USER FEE will be the present fee of $l25.00.

The AVAILABILITY FEE will produce approximately $1,950,000.00 and the USER FEE will produce approximately $650,000.00 at the current collection rate (54%) for a total of $2,600,000.00. These revenues less the projected operating budget of $1,555,839.00 for FY 1990-91 will produce an excess of $1,044,161.00. This $1,044,161.00 could be used to support the rescue units of the Fire Department or purchase communications equipment and any other fire equipment (pumpers, ladder trucks) deemed necessary for the Fire Department.

The suggested collection of the AVAILABILITY FEE could be shown as an added item to the City of Jackson Water/Sewer bill or collected at the time of the Property Tax Collection.

The members of the City Council have asked that I request an official opinion of the Office of the Attorney General as to whether the City of Jackson has the legal authority to implement the proposed "availability fee" as described above. If the City of Jackson has the authority to impose the "availability fee" may it be added to the city's water/sewer bill and collected in that manner? If so, may any of the excess funds produced as a result of the "availability fee" be used for any other purpose other than for the emergency ambulance service such as that set forth in the above referenced proposal?

RESPONSE: Miss. Code Ann. 41-55-1 (Supp. 1990) authorizes municipality to own, maintain and operate an ambulance service and to fix and collect charges therefor:

The board of supervisors of any county and the governing authorities of any city, town, or any political subdivision thereof, either separately or acting in conjunction, in their discretion and upon finding that adequate public ambulance service would not otherwise be available, may own, maintain, and operate a public ambulance service as a governmental function, fix and collect charges therefor, and adopt, promulgate and enforce reasonable rules and regulations for the operation of said service. Any political subdivision, or parts thereof, acting hereunder may contract and otherwise cooperate with any department or agency of the United States government or the state of Mississippi, or any county, city, town, or supervisors district of the same, or other counties of the state of Mississippi in carrying out any of the powers herein conferred or otherwise effectuating the purposes of sections 41-55-1 to 41-55-11 and in so doing accept gifts, money, and other property of whatever kind.

While this statute authorizes a city to charge fees to finance an ambulance service, Miss. Code Ann. 21-17-4(2), which gives municipalities home rule, provides that a city may not levy taxes unless such taxes are authorized by another statute:

(2) This section shall not authorize the governing authorities of a municipality to (a) levy taxes of any kind or increase the levy of any authorized tax, (b) issue bonds of any kind, (c) change the requirements, practices or procedures for municipal elections or establish any new elective office, (d) change the procedure for annexation of additional territory into the municipal boundaries, (e) change the structure or form of the municipal government, (f) permit the sale, manufacture, distribution, possession or transportation of alcoholic beverages, (g) grant any donation, or (h) without prior legislative approval, regulate, directly or indirectly, the amount of rent charged for leasing private residential property in which the municipality does not have a property interest; unless such actions are specifically authorized by another statute or law of the State of Mississippi.

This office is of the opinion that 41-55-1 authorizes a city to charge a user fee to individuals who actually use the ambulance service but does not authorize a city to charge an availability fee, as a general fee charged to all homeowners and businesses regardless of whether or not they use the service would in actuality be a tax for the support of an ambulance service.

Your other questions concerning the collection of the fee and excess funds then become moot.

Question: Members of the City Council would also like an official opinion as to whether a fee can be added to the City of Jackson water/sewer bill and collected in that manner and used exclusively for police protection and services.

Response: This office is of the opinion that 21-17-5(2) prohibits a city from adding a fee to the city water/sewer bill to be used exclusively for police protection and services, as such a fee would in actuality be a tax.

Question: A City Council member would also like an opinion of your office as to whether the City of Jackson may provide the funding for an additional Circuit Judge for Hinds County.

Response: Miss Code Ann. 9-7-1 et. seq. (attached) sets the number of circuit judges in the state. See also, Miss. Code Ann.

25-3-35 (Supp. 1990)(sets the salary for circuit judges) and 25-3-37 (Supp. 1990) provides that the salary set for circuit judge shall be full and complete compensation). Therefore, the city of Jackson may not provide funding for an additional Circuit Judge for Hinds County.

If we may be of any further assistance, please let us know.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY

Alice Wise Special Assistant Attorney General

AW:mfd Enclosure