Mississippi Advisory Opinions August 25, 2017: AGO 2017-00264 (August 25, 2017)

Advisory Opinion Text

AUTH: Avery Mounger Lee

RQNM: Joseph Shepard

SUBJ: Supervisors - Authority

SBCD: 220

TEXT: Joseph M. Shepard, Esquire

Post Office Box 747

Columbia, Mississippi 39429

Re: Tax Levy for Fire Protection District

Dear Mr. Shepard:

Attorney General Jim Hood is in receipt of your opinion request and has assigned it to me for research and reply. In your letter, you explain that Marion County created the Tri-Community Fire Protection District pursuant to the authority of Miss. Code Ann. Section 19-5-189(2)(a) and has annually levied a tax of one (1) mill on all taxable property within the boundaries of the District for the operation, support and maintenance of the District. The District was created after July 1, 1987. The Board of Commissioners of the District has requested that the Board of Supervisors of Marion County increase the tax levy to two (2) mills on all taxable property within the boundaries of the District, beginning with fiscal year 2018.

Question Presented

Does Miss. Code Ann. Section 19-5-89(2) authorize the Board of Supervisors of Marion County to increase the tax levy to two (2) mills on all taxable real property within the boundaries of Tri-County Fire Protection District without adopting a resolution declaring its intent to do so and holding an election on the question of raising the tax levy from one (1) mill to two (2) mills?

Response

No. If a board of supervisors makes a determination, pursuant to Section 19-5-189(2)(b), that there is a need for additional revenue, Section 19-5-189(2)(c) mandates that prior to levying a tax increase, the board of supervisors shall adopt a resolution declaring its intention to levy the tax.

Legal Research and Analysis

Miss. Code Ann. Section 19-5-189(2) provides, in pertinent part:

(b) In respect to fire protection purposes, the board of supervisors of the county in which any such district is created after July 1, 1987, may, according to the terms of the resolution of intent to incorporate the district, levy a special tax not to exceed two (2) mills annually on all of the taxable real property in such district, the avails of which shall be paid over to the board of commissioners of the district to be used either for the operation, support and maintenance of the fire protection district or for the retirement of any bonds issued by the district for fire protection purposes, or for both; however, the board of supervisors may increase the tax levy under this subsection as provided for in paragraph (c) of this subsection.

(c) The tax levy under this subsection may be increased only when the board of supervisors has determined the need for additional revenues. Prior to levying a tax increase under this paragraph, the board of supervisors shall adopt a resolution declaring its intention to levy the tax. The resolution shall describe the amount of the increase in the tax levy and the purposes for which the proceeds of the additional tax will be used. The board of supervisors shall have a copy of the resolution published once a week for three (3) consecutive weeks in at least one (1) newspaper published in the county and having a general circulation therein. If no newspaper is published in the county, then notice shall be given by publishing the resolution for the required time in some newspaper having a general circulation in the county. A copy of the resolution shall also be posted at three (3) public places in the county for a period of at least twenty-one (21) days during the time of its publication in a newspaper. If more than twenty percent (20%) of the qualified electors of the district shall file with the clerk of the board of supervisors, within twenty-one (21) days after adoption of the resolution of intent to increase the tax levy, a petition requesting an election on the question of the increase in tax levy, then and in that event such increase shall not be made unless authorized by a majority of the votes cast at an election to be called and held for that purpose within the district. Notice of such election shall be given, the election shall be held and the result thereof determined, as far as is practicable, in the same manner as other elections are held in the county. If an election results in favor of the increase in the tax levy or if no election is required, the board of supervisors may increase the tax levy. The board of supervisors, in its discretion, may call an election on such question, in which event it shall not be necessary to publish the resolution declaring its intention to have the tax imposed.

( Emphasis added ).

Section 19-5-189(2)(b) authorizes any board of supervisors in a county in which a fire protection district was created after July 1, 1987, pursuant to the terms of the subsection, to levy a tax not greater than two (2) mills on all of the taxable real property in the district for use by the fire protection district for “operation, support and maintenance” or “retirement of bonds” of the fire protection district. The initial amount to be levied is included in the terms of the resolution of intent to incorporate the district. Subsection (2)(b) also states that the board of supervisors may increase this initial tax levy as provided for in paragraph (c).

Subsection (2)(c) allows this levy to be increased when the board of supervisors determines a need for additional revenue. When a board of supervisors determines such a need, prior to levying a tax increase, the board of supervisors shall adopt a resolution declaring its intention to levy the tax. Additionally, Subsection (2)(c) includes specific notice requirements, which could conceivably result in an election on the increase, or the board of supervisors may call an election on the question.

Therefore, it is the opinion of this office that if the Marion County Board of Supervisors makes a determination, pursuant to Section 19-5-189(2)(b), that there is a need for additional revenue, the Board shall adopt a resolution declaring its intention to levy the tax and follow the procedures set forth in Section 19-5-189(2)(c).

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