Request By:
Mr. Robert D. McAninch
Chairman
Floyd County Solid Waste Board
P.O. Box 186
552 South Lake Drive
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise a financial question relating to a county-wide solid waste system. Your letter reads:
"Floyd County is having severe financial difficulty with their mandatory countywide, county owned solid waste collection system. The solid waste service is available to everyone yet a number of people refuse to pay their monthly garbage bills and the County is heading for a default on the revenue bonds which were originally sold to raise the funds to create the system.
"To aid us in our financial plight, I would like to request a formal opinion on the following point: Under KRS 109.056, Section 3, may the Solid Waste Commission place the past due solid waste charges on the property tax bill, identifying the charge as a garbage charge and have the sheriff collect the past due charges when he makes his normal yearly property tax collection?
"As collection of fees is the most serious obstacle facing the creation of any government sponsored solid waste system, your opinion will be of major significance."
KRS 109.056 reads:
"(1) Any county or waste management district may levy an annual tax, not to exceed ten cents (10 ) on each one hundred dollars ($100) of assessed valuation of real property within the area subject to taxation for county purposes. The proceeds of such tax shall be used for solid waste management expenses of the area and for redemption of any bonds issued.
"(2) The county or waste management district may in lieu of the tax provided in subsection (1) or in addition thereto finance the maintenance, operation and capital acquisition costs of the area by fees to be collected from all persons receiving services from the area. Such charges shall be fixed in such amounts as can be reasonably expected to yield revenues not in excess of the cost of operation and maintenance of the system and for an adequate depreciation fund and amortization of capital acquisition costs.
"(3) The service charges authorized by subsections (1) and (2) of this section may be collected by the area directly or the area may enter into an agreement with other utilities either public or private to collect such charges."
We understand that Floyd County directly owns and operates the countywide solid waste system, pursuant to KRS 67.083(3)(o), 109.011(9), and 109.072.
Under KRS 109.056, any such county may levy a tax, not to exceed ten cents (10 ) on each one hundred dollars ($100) of assessed valuation of real property within the area subject to taxation for county purposes, to finance solid waste management expenses of the area and for redemption of any bonds issued. In addition, the county, in lieu of the tax, or in addition thereto, may finance the maintenance, operation and capital acquisition costs of the area by fees to be collected from all persons receiving services from the solid waste area. KRS 109.056(2) establishes the basis for such charges.
KRS 109.056(3) provides that the service charges may be collected by the area directly or the area may enter into an agreement with other utilities, public or private, to collect such charges. We assume the county is having to directly collect the charges.
In the absence of statutory authorization, it is our opinion that the county has no authority to place these garbage service charges on the regular property tax bills. The literal language of KRS 109.056(3), unfortunately, governs in this situation. KRS 134.140 provides in part that the sheriff is collector of "all state, county and district taxes. . . ." (Emphasis added). Nothing there is said about "charges" not constituting a "tax." The legislature has full authority to designate who shall be collector of state and county taxes, and the specific taxes authorized to appear on tax bills.
Madison County v. Hamilton, 243 Ky. 29, 47 S.W.2d 938 (1932). Thus the sheriff is a bailee or trustee of the "tax money" for the state and county, and such money constitutes a trust fund in his possession.
Denny v. Thompson, 236 Ky. 714, 33 S.W.2d 670 (1930). But that involves only taxes in the strict legal sense, not "charges" for a governmental service.
KRS 133.220 specifically deals with the county clerk's preparation of tax bills. Such directions to the clerk contain nothing about governmental service charges, such as this.
We must therefore conclude that the solid waste managing authority has no statutory authority to place the garbage service charges on the property tax bills of taxpayers in that county. They will simply have to pursue such debts, for purposes of collection, as civil debts.
Since the situation presents perhaps an impracticality in pursuing such debts on a wide scale, county governments may wish to address the General Assembly for a more efficacious method of debt collection.