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AGO advises against storm sewer charge

March 21, 2012


Starkville Mayor Parker Wiseman announced at Tuesday’s board of alderman meeting discussion on a proposed storm sewage fee which would have funded drainage projects around the city would not continue, citing an opinion from the Mississippi Attorney General’s office received Monday.
The proposed fee which would have added $2.50 a month to each residential unit’s utility costs and $5 a month to businesses if enacted was sent to the attorney general’s office for review after a Feb. 7 hearing.
“While the AG’s office did not completely rule out the possibility of establishing such a fee under Mississippi law, the opinion did cast enough doubt over the permissibility of the issue that I believe it would be ill-advised to continue discussion over a storm sewer fee at this time,” Wiseman said Tuesday.
Ward 6 Alderman Roy A. Perkins said the proposal would have amounted to an unlawful tax if passed based upon his review of the City of Ocean Springs v. Homebuilder’s Association case of 2006 which ruled a municipality could not impose a fee without specific legislative authority.
“I was very unwavering in my opinion on the proposal. I knew I was correct, I felt I was correct and if the city were to play close attention to what Alderman Perkins says, (it would know I was correct),” Perkins said. “Often times the board does not adhere to my advice from 24 years of experience in law. There were some who told me ‘I disagree. You are wrong,’ but the city attorney (Chris Latimer) told me I was correct. The city needs to move on to another method of funding these drainage projects.”
In the opinion, Special Assistant Attorney General Leigh Tiche Janous said the proposed plan does not merit a fee.
“The proposed plan, in our opinion, does not constitute a regulatory fee that is used to offset administrative costs of operating the city department charged with administering these activities nor is there a specific benefit or service conferred on the payer of the fee,” Janous said in the report. “Thus, we are of the opinion that the proposed plan would constitute a tax imposed by the municipality and would be considered unlawful.”
No other municipality in the state imposes such a fee, something Wiseman said is important in deciding to end pursuit of enacting one.
“My reasoning for saying I think it’s ill-advised to pursue any further is because I don’t want the city to be exposed as any kind of test case,” Wiseman said. “The opinion offers enough caution that until somebody else does it … it is probably best left alone now.”
The board also approved a request to advertise for a temporary full-time position for a building inspector after making several amendments. The conditions were changed to have the position paid on an hourly rate comparable to a Salary Grade 12 compensation ($35,948.33 to $47,842.50) as opposed to the salary itself. The position would also not include benefits and would only last four months in accordance to Public Employees’ Retirement System requirements.
City Personnel Director Randy Boyd said the move was necessary due to current full-time Building Inspector Ken Honeycutt’s indefinite absence due to a serious health issue. Boyd’s choice to originally advertise listing the budgeted salary was based on what he felt to be previous instructions from the board.
“If you go back several months ago when we were advertising positions we advertised only the entry level. There were situations where people were brought in at a rate higher than that, and I had understood the desire of the board to show the full range for the position so that when a decision had been brought back to the board, the position would have been advertised at the full range of the scale shown,” he said.
Perkins questioned Boyd on the merits of position having a budgeted salary with benefits due to similar city temporary full-time positions not having them.
“We need to have some consistency with these personnel decisions and we are not getting that. What you have with this particular matter is you want to have a range for this building personnel and you want to give that person full-time benefits,” Perkins said. “That’s inconsistent with what happened at the city clerk’s office as to the temporary full-time position ... there’s also inconsistency with what happened in the municipal court clerk’s office and inconsistency with what happened with an electrical inspector that was contractual. I don’t mind going in and we can put just an hourly rate, but you don’t need to have benefits. We need to have a safeguard that if the incumbent returns there is no expectation of being converted to full time.”
Ward 5 Alderman Jeremiah Dumas moved to replace the salary to the comparable hourly rate without benefits to expire at the end of four months. The board approved the motion 6-0 with Ward 7 Alderman Henry Vaughn absent.
In other business, the board approved advertising for two temporary full-time positions in the department of sanitation and environmental services on a $8.81-per-hour scale with no benefits. Those positions would also relieve workers currently on leave and would not exceed four months in tenure.
The board also approved application for a summer youth program transportation grant in the amount of $35,000. The program would provide the city with resources to hire youth from within the community for summer work if the grant is approved.

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