Mississippi Advisory Opinions August 22, 2014: AGO 2014-00310 (August 22, 2014)

Advisory Opinion Text

AUTH: Avery Mounger Lee

RQNM: Kent Smith

SUBJ: Supervisors - Authority

SBCD: 220

TEXT: Kent E. Smith, Esquire

Marshall County Board of Supervisors

Post Office Drawer 849

Holly Springs, Mississippi 38635

Re: Board of Supervisors Authority to Levy Assessment

Dear Mr. Smith:

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

Question Presented

In your letter you ask whether the laws of our State grant the supervisors of each County the power to levy a special public safety assessment in addition to the normal millage levied and collected by the County each year to assist with funding the sheriff's department and the county fire departments.

Response

No. The Marshall County Board of Supervisors does not have the authority to levy a special public safety assessment to each parcel of real property in the County to provide additional funding to the sheriff's department or the county fire department.

Legal Research and Analysis

In response, Section 27-39-317 provides in pertinent part:

In making the levy of taxes, the board of supervisors shall specify, in its order, the levy for each purpose, as follows:

(a) For general county purposes (current expense and maintenance taxes), as authorized by Section 27-39-303.

(h) For any other purpose for which a levy is lawfully made.

The order shall state all of the purposes for which the general county levy is made, using the administrative items suggested by the State Department of Audit of Mississippi under the county budget law in its uniform system of accounts for counties, but the rate or levy for any item or purpose need not be shown; and if a countywide levy is made for any general or special purpose under the provisions of any law other than Section 27-39-303, each such levy shall be separately stated.

Section 27-39-303, as amended, referred to in Section 27-39-317, supra, provides for a general county levy as follows:

The board of supervisors of any county is hereby empowered to levy ad valorem taxes on taxable property in the respective counties in any one (1) year, as shown by the assessment roll containing assessments of property made as of January 1 of the year, and the assessment of motor vehicles as made according to the provisions of the Motor Vehicle Ad Valorem Tax Law of 1958 (Section 27-51-1 et seq.) for all general county purposes, exclusive only of levies for schools at the rate necessary to fund such purposes. The board of supervisors of any county is further empowered to expend the proceeds of this levy for any purpose authorized for any other levy which the board of supervisors is authorized to make.

Section 19-3-40(3) provides:

This section shall not authorize the board of supervisors of a county to (a) levy taxes other than those authorized by statute or increase the levy of any authorized tax beyond statutorily established limits, (b) issue bonds of any kind, (c) change the requirements, practices or procedures for county elections or establish any new elective office, (d) use any public funds, equipment, supplies or materials for any private purpose, (e) regulate common carrier railroads, (f) grant any donation, or (g) without prior legislative approval, regulate, directly or indirectly, the amount of rent charged for leasing private residential property in which the county does not have a property interest; unless such actions are specifically authorized by another statute or law of the State of Mississippi.

This office has consistently held that in the absence of specific statutory authority authorizing the assessment of a fee, said fee should not be levied. MS AG Op., Hoskins (June 15, 1982). See also MS AG Op., Tollison (April 22, 2011)(Neither a municipality nor a county may enact an ordinance to provide for the assessment of a user fee for police or fire department response to a motor vehicle accident absent specific statutory authority).

We can find no statute which authorizes a board of supervisors to levy an additional assessment or tax for "public safety" to benefit the sheriff's department. Rather, the appropriation to the sheriff's department must be paid from the general fund levy. Section 19-25-13 states that a sheriff should submit a proposed budget itemized as to funds requested for various categories of expenditure to the board of supervisors. The board of supervisors may then reduce or increase the amount proposed for each category of the budget as it deems necessary and proper. The board of supervisors may approve or adjust the sheriffs proposed budget for any or all of these categories. MS AG Op., Payne (November 7, 2003). This Section also provides that the board of supervisors may amend the budget during the course of the budget year, as needed, and upon recommendation of the sheriff, the board may at any regular meeting make supplemental appropriations to the sheriff's office. MS AG Op., Rainey (September 25, 2009).

In regard to the authority to levy a special fee for the support of the county fire department, Section 83-1-39(5)(d) provides in pertinent part:

(d) Counties shall levy a tax of not less than one-fourth (1/4) mill on all property of the county or appropriate avails of not less than one-fourth (1/4) mill from the county's general fund forfire protection purposes. Municipalities making a written declaration to the county that they fund and provide their own fire services shall be exempted from this levy. This levy shall be used forfire protection purposes which include, but are not limited to, contracting with any provider of fire protection services.

Thus, Section 83-1-39(5)(d) authorizes a levy of not less than one-fourth mill, or an appropriation from the general fund of a sum equal to the avails of one-fourth mill, before a county is eligible to receive county rebate monies. Accordingly, our opinion is that the county would be authorized to use the tax revenue generated by Section 83-1-39(5)(d) to fund a county fire department. Although Section 19-5-189 provides authority for the board of supervisors to assess a special tax for the operation of a fire protection district, we find no similar authority to assess such a special levy to fund a county fire department.

Consequently, it is the opinion of this office that the Marshall County Board of Supervisors does not have the authority to levy a special public safety assessment to each parcel of real property in the County to provide additional funding to the sheriff's department or the county fire department.

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.