Davis, 033117 WVAGO, AGO 033117

Case DateMarch 31, 2017
CourtWest Virginia
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 corporation1—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."...

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