The Honorable James W. Davis, Jr.
AGO 033117
No. 033117
West Virginia Attorney General Opinions
State of West Virginia Office of the Attorney General
March 31, 2017
Patrick Morrisey Attorney General
Elbert
Lin Solicitor General
Katlyn
Miller Assistant Attorney General
The
Honorable James W. Davis, Jr.
Prosecuting
Attorney
Office
of the Hancock County Prosecuting Attorney
1114
Ridge Ave.
P.O.
Box 924
New
Cumberland, West Virginia 26047
l Dear Prosecutor Davis:
You
have asked for an Opinion of the Attorney General regarding
Hancock County's use of funds left over from
"special excess lev[ies]" approved by the voters of
Hancock County in May 2008 and May 2012. This Opinion is
being issued pursuant to West Virginia Code § 5-3-2,
which provides that the Attorney General "may consult
with and advise the several prosecuting attorneys in matters
relating to the official duties of their office." To the
extent this Opinion relies on facts, it is based solely upon
the factual assertions set forth in your correspondence with
the Office of the Attorney General.
Your
correspondence raises the following legal questions, which
are addressed in turn below:
(1) Does the Hancock County Animal Shelter Foundation
have the right to use or claim any of the remaining funds
from the 2008 and 2012 special excess levies?
(2) Does the County Commission have the
authority to use the funds remaining from the special excess
levies for its county animal shelter?
Background
Your
correspondence concerns two special excess levies related to
the Hancock County Animal Shelter ("Shelter"),
which is owned by the Hancock County Commission ("County
Commission") but was until recently run by the Hancock
County Animal Shelter Foundation ("Foundation")
under a contract with the County Commission. Through the
Shelter, the County Commission complies with its duties under
West Virginia Code § 19-20-6 regarding the control,
registration, and care and impoundment of stray or unwanted
animals. Beginning on or around August 7, 1997, the County
Commission entered into a contract with the
Foundation—a private, non-profit
corporation
1—to run and manage the Shelter.
Authorized specifically by West Virginia Code §
19-20-6a, the contract appropriated $80,000 annually to the
Foundation to operate the Shelter. You report that in
practice, the Commission annually appropriated far more to
the Foundation from its own funds—approximately
$220,000 in 2008-09; $175,000 in 2009-10; $175,000 in
2010-11; $175,000 in 2011-12; $175,000 in 2012-13; $175,000
in 2013-14; $175,000 in 2014-15; and $144,000 in 2015-16.
In
March 2008, the County Commission determined that its annual
appropriations would not sufficiently cover the costs
associated with running the Shelter and proposed a
"special excess levy" to provide additional funds.
The County submitted to vote at Hancock County's regular
primary election in May 2008 a special excess levy of
$100,000 annually, beginning in fiscal year 2009, for
"the purpose of providing" "for the financial
support of the Hancock County Animal Shelter
Foundation." In an order giving notice to the voters,
the County Commission explained that the levy was necessary
because "the maximum levies for current expenses . . .
will not provide sufficient funds for the payment of current
expenses of the County Commission of Hancock County,
including expenditures for the purpose hereinafter set
forth." The levy capped the projected tax collection at
$100,000 per year for the fiscal years 2009, 2010, and 2011.
Any monies collected beyond $ 100,000 each year (due to
increases in assessed value of the taxed properties) would
"be transferred to the general fund of [Hancock] County
for expenditure by said County for recreational purposes
only." The voters approved the levy, which ran for three
years and concluded on June 30, 2012 (the end of fiscal year
2011).
In
2012, the County Commission proposed a "renewal [special
excess] levy" to provide additional funds, as the County
Commission had done in 2008. The County Commission submitted
to vote at Hancock County's regular primary election in
May 2012 the renewal levy ballot to assess additional taxes
on property in Hancock County for the fiscal years 2012,
2013, 2014, and 2015 "for the purpose of providing"
"for the financial support of the Hancock County Animal
Shelter Foundation."...