Opinion No. 2017-18


February 2, 2017

Opinion No. 2017-18

?Summary:

Utility Boards ? Compensation ? Dallas County

The Selma City Council?s resolution authorizing a fee increase for the members of the Selma Water Works and Sewer Board pursuant to section 11-50-313(a) of the Code of Alabama took effect for all members on proper passage.

Prior to the municipal officer who is also a member of the Board receiving a fee increase, the Board must pass a resolution approving the increase for that member, which may not be retroactive.


Dear Mr. Nunn:

This opinion of the Attorney General is issued in response to your request on behalf of the Selma City Council.

QUESTIONS

(1) The Selma City Council has increased a fee for members of the Selma Water Works and Sewer Board (?Board?) pursuant to Resolution R124-15/16.? Does the increase take effect immediately after passage of the resolution?

(2) If not, does setting the fees have a staggered effect which begins at the next term of each new/reappointed member taking office, so that the existing board members? fee would not be increased?

(3) If not, does the fee take effect immediately for all members upon the appointment of one new/reappointed member taking office?

(4) Can the governing body make the fee increase retroactive and take effect prior to passage of the resolution for the councilmember serving on the Board?

FACTS AND ANALYSIS

The Selma Water Works and Sewer Board is a public corporation comprised of five members, one of whom serves as chairman, pursuant to section 11-50-310, et seq., of the Code of Alabama. ?Ala. Code ??11-50-310 (2008).? In your request, you have asked several questions regarding the passage of Resolution R124-15/16, and how this resolution ultimately impacts the timing of the fees to be received by members of the Board.? Specifically, you ask whether (1) the fee increase happens immediately after passage of the resolution; (2) the fee increase is staggered in effect thereby beginning at the next term of each new/reappointed member taking office; or (3) the fee increase takes effect immediately for all members upon the appointment of one new/reappointed member taking office.

Fees for members of the Board may be increased pursuant to either section 11-50-15 or section 11-50-313 of the Code of Alabama.? Ala. Code ???11-50-15 and 11-50-313 (2008).? Because your request only expressly mentions the provisions found in section 11-50-313, this response, in like manner, will be so limited.? Section 11-50-313(a) states, in pertinent part, as follows:

No fee shall be paid to any director for services rendered with respect to a sanitary sewer system.? In any instance where the system or systems owned and operated by the corporation are any one or more of a water system, a gas system, and an electric system, the chair of the board of directors may, at the discretion of the governing body of the municipality with respect to which the corporation was primarily organized, be paid a director?s fee in an amount to be set and established by the governing body in an amount not exceeding six hundred ($600) per meeting attended, not to exceed seven thousand two hundred dollars ($7,200) per year, for one system and ten dollars ($10) each meeting for each additional system.? Each member of the board of directors, other than the chair, may be paid a director?s fee in an amount to be set and established by the governing body in an amount not exceeding four hundred dollars ($400) per meeting attended, not to exceed four thousand eight hundred dollars ($4,800) per year for the system. . . .

Except as provided herein, any officer of the municipality shall be eligible for appointment and may serve as a member of the board of directors for the term for which he or she is appointed or during his or her tenure as a municipal officer, whichever expires first, and may receive a fee for his or her services, provided it is first approved by the board of directors. . . .

Ala. Code ??11-50-313(a) (Supp. 2016) (emphasis added).

Based upon the information provided, the city voted and approved a fee increase pursuant to section 11-50-313(a).? The fee of the board chair was increased to $600 per meeting and the fee of board members was increased to $400 per meeting.? Neither the Code nor the resolution indicate when or how the fee increase takes effect.

In an opinion to James E. Turnbach regarding the effective date of an increase in the salary of members of the Board of Equalization this Office generally discussed when a resolution becomes effective. ?Opinion to Honorable James E. Turnbach, Attorney, Etowah County Commission, dated February 24, 1998, A.G. No. 1998-096. ?The opinion stated that absent explicit language in the resolution establishing an effective date,

?it would be presumed to be effective on and after the day it was adopted . . . .? ?Id. at 3.? Accordingly, it is the opinion of this Office that Resolution R124-15/16 of the City of Selma became effective on proper passage.

Generally, it is a well settled principal that the compensation to state or municipal officials may not be increased during the officials? term of office.? Ala. Const. art. IV, ??68; Ala. Const. art. XVII, ??281.? This particular prohibition, however, is not applicable to public corporations such as the Selma Water Works and Sewer Board.? See, Alabama Hospital Association v. Dillard, 388 So. 2d 903 (1980).

This Office has stated that section 11-50-313(a) restricts the compensation that a councilmember on a utility board may receive.? Opinion to John Hollis Jackson, Jr., Attorney for Water Works, Gas, & Sewer Board, City of Clanton, dated June 27, 1986, A.G. No. 1986-00268.? That opinion explained that the councilmember may receive fees only after the utility board approves the fees.? Assuming the Selma Water Works and Sewer Board approved the fee increase for municipal officers contemporaneously with the passage of Resolution R124-15/16 by the City of Selma, all members of the Board are entitled to receive the fee increase from date of passage. ?See, opinion to the Honorable Milton C. Davis, Attorney, Utilities Board of the City of Tuskegee, dated May 6, 2009, A.G. No. 2009-069.

CONCLUSION

The Selma City Council?s resolution authorizing a fee increase for the members of the Selma Water Works and Sewer Board pursuant to section 11-50-313(a) of the Code of Alabama took effect for all members on proper passage.

Prior to the municipal officer who is also a member of the Board receiving a fee increase, the Board must pass a resolution approving the increase for that member, which may not be retroactive.

 

I hope this opinion answers your questions.? If this Office can be of further assistance, please contact Monet Gaines of my staff.

Sincerely,

LUTHER STRANGE

Attorney General

By:

WARD BEESON, III

Chief, Opinions Section

LS/MMG/as

2261515/190983