Mississippi Advisory Opinions September 29, 2000: AGO 2000-0554 (September 29, 2000)

Advisory Opinion Text

William H. Austin, Jr., Esquire

Attorney for DeSoto County

Board of Supervisors

Post Office Box 567

Hernando, Mississippi 38632-0567

Re: Fire Protection District

Dear Mr. Austin:

Attorney General Mike Moore has received your letter of request and assigned it to me for research and reply. Your letter poses several questions regarding a non-binding referendum on the establishment of a fire protection district and the actual establishment of such district. We will state each question and give our response.

QUESTION 1: May DeSoto County, Mississippi authorize a non-binding referendum in order to determine the desire for a county wide fire protection district in the unincorporated areas of DeSoto County, Mississippi?

RESPONSE: We have previously said that counties and municipalities may conduct non-binding referenda on issues falling within the governing authorities' jurisdiction and on which the legislature is silent regarding methods of determining the will of the electorate. See MS AG Op., Clements (August 3, 1990), a copy of which is enclosed.

Mississippi Code Annotated, Section 19-5-157 (Revised 1995) provides a procedure whereby, subsequent to the filing of a petition for the incorporation of a fire protection district or the adoption of a resolution proposing such incorporation, the qualified electors of such a proposed district may by petition force a binding referendum on the question of whether to create said district. However, we do not believe this would preclude the board of supervisors from ordering a non-binding referendum on the question prior to the filing of a petition or the adoption of a resolution proposing such incorporation.

QUESTION 2: May the County limit the referendum to the registered voters of the unincorporated areas of DeSoto County, Mississippi? (It is the desire of DeSoto County, Mississippi to limit the cost of such a referendum and would desire to limit this referendum to the persons who would be affected by the fire protection district and any tax levy associated therewith).

RESPONSE: Section 19-5-157 provides that only the qualified electors who reside within the proposed district are entitled to vote in any binding election on the matter. We are of the opinion that a non-binding referendum may also be limited to those qualified electors who would be affected by the creation of a fire protection district.

QUESTION 3: Would the DeSoto County Board of Supervisors be obligated in any manner pursuant to the results of such a non-binding referendum?

RESPONSE: No.

QUESTION 4: Are there any rules and/or regulations as to the content or wording of such referendum?

RESPONSE: No.

QUESTION 5: Could such a non-binding referendum be placed upon the ballot at any election? If not, please set forth the guidelines and regulations regarding the timing of such a non-binding referendum.

RESPONSE: Section 23-15-375 provides that a “local issue” may be placed on the regular or general election ballot. The term “local issue” is defined in that code section to include “elections regarding the issuance of bonds, local option elections, elections regarding the levy of additional ad valorem taxes and other similar elections authorized by law that are called to consider issues that affect a single local governmental entity.” While the elections referred to are binding referenda, we are of the opinion that a non-binding referendum may also be placed on a regular or general election ballot.

QUESTION 6: Is there any law which would prohibit DeSoto County, Mississippi from establishing a fire protection district encompassing all of the unincorporated areas of DeSoto County, Mississippi?

RESPONSE: Section 19-5-151 provides in part:

Any contiguous area situated within any county of the state, and not being situated within the corporate boundaries of any existing municipality, and having no adequate water system, sewer system, garbage and waste collection and disposal system, or fire protection facilities serving such area, may become incorporated as a...fire protection district...in the manner set forth in the following sections.

A fire protection district encompassing all of the unincorporated area of a county may be established provided such area is contiguous and does not encroach upon any pre-existing fire protection district.

QUESTION 7: Is the allowable tax levy for the funding of such a fire protection district limited to that set forth in Section 19-5-189 of the Mississippi Code ?

RESPONSE: Please see the enclosed copies of MS AG Op., Brisolara (August 21, 1991), and MS AG Op., Allen (September 19, 1997). We believe these opinions adequately address your question.

QUESTION 8: Is the authorized tax levy limited to two (2) mills for such a district?

RESPONSE: See opinions cited in our response to question 7.

QUESTION 9: Is the County allowed to appropriate monies from other funds for the funding of such a fire protection district?

RESPONSE: See opinions cited in our response to question 7.

Sincerely,