Mississippi Advisory Opinions March 18, 1990: AGO 000007407 (March 18, 1990)

AGO 000007407.

Dear Mr. Jones:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply.

Your letter states:

"Does a municipality have the authority to contract with a professional collection agency or other third party for the collection, on an agreed contingent fee percentage, of delinquent accounts due the municipality, such as delinquent water bills, past due municipal court fines, etc.? If the answer to this question is in the negative, does the municipality have the authority to make such a collection agreement with an attorney at law on a contingent fee basis?"

Mississippi Code Annotated 21-17-5 (Supp. 1989) provides in part:

"(1) The governing authorities of every municipality of this state shall have the care, management and control of the municipal affairs and its property and finances, and shall have the power to adopt any orders, resolutions or ordinances with respect to such municipal affairs, property and finances for which no specific provision has been made by general law and which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi....

(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."

The above quoted statute specifically authorizes the municipal governing authorities to adopt orders, resolutions or ordinances for the government of their municipality which do not conflict with existing state law.

In regard to contracting with a collection agency or other third person to collect past due court fines, please see the enclosed copy of an opinion addressed to Ms. Karen Trippe, dated October 5, 1987. In summary that opinion states that there are prescribed statutory procedures for the collection of such fines.

Therefore, it is the opinion of this office that the municipal governing authorities are without authority to contract with collection agency or other third person to collect delinquent court fines because to do so would be inconsistent with existing state law.

In regard to the collection of delinquent water bills, Section 21-27-23(e) authorizes the municipal governing authorities to collect utility fees and "to discontinue any or all of said services upon any failure to promptly pay the charges fixed for said services". In an opinion addressed to Honorable Marvin Williams, dated November 18, 1983, (copy enclosed) which was prior to the enactment of the "home rule" provisions of section 21-17-5, we stated that the municipal governing authorities could secure the professional services of an attorney other than the City Attorney to pursue the collection of delinquent utility accounts provided the attorney's compensation is by salary or a fixed fee for such account handled, or on an hourly basis. Provided that the first step toward collecting delinquent utility bills is the termination of service following proper notice and opportunity for a hearing on the matter, we see no inconsistency with existing state law should the governing authorities adopt an order authorizing a contract with a collection agency or other third person to collect such bills on whatever terms and conditions are determined, consistent with the facts, to be in the best interests of the municipality.

For your information we are enclosing a copy of an opinion addressed to Honorable Douglas M. Wright, dated August 6, 1981 which deals with the termination of utility services.

Sincerely,

MIKE MOORE ATTORNEY GENERAL

By: Phil Carter Special Assistant Attorney General