Opinion No. ( 1993 )

The Honorable Railey Steele State Representative P.O. Box 28 Gentry, Arkansas 72734-0028

Dear Representative Steele:

This is in response to your request for an opinion on the following question:

Are Arkansas Code Sections 6-61-601 and 6-61-612 violated if the Department of Higher Education includes a community college's local taxes in the community college's income which is subtracted from the recommended budget for the community college in order to arrive at the amount of state revenues to be recommended for general operation of the community college?

It is my opinion that the answer to your question is "yes."

Section 6-61-601 (1987) of the Arkansas Code provides in pertinent part as follows:

(a) Funds for the general operation of an adequate comprehensive educational program shall be provided by the state.

(b)(1) Prior to the beginning of each biennium, the local board of each community college shall develop an estimate of budget requirements for the operation of the community college for each year of the biennium and shall submit it to the State Community College Board for review.

(2) The estimate of budget requirements shall include both expected expenditures and incomes.

(c)(1) Based on the estimate submitted by the community colleges and estimates of funds required for additional institutions that may be created during the ensuing biennium, the State Community College Board¹ shall recommend to the General Assembly and the Governor its estimate of funds necessary to support existing community colleges and ones that may be established.

(2) The amount of state revenues to be recommended for the general operation of each community college shall be the difference between the recommended budget and the total of income for general operation, including student fees and any other income except local taxes. The recommended budget for general operation shall be sufficient to provide an adequate comprehensive educational program which serves the needs of the state and the community college's service area as determined by the State Community College Board. [Emphasis added.]

Subsection (c)(2) above clearly provides that local taxes are not to be included as income and subtracted from the recommended budget. Section 6-61-601(a) buttresses this conclusion by providing that funds for the general operation of community colleges shall be provided by the state. In addition, A.C.A. §6-61-602 (1987), which provides for the levy of local taxes by community colleges, clearly indicates that any such local taxes are discretionary, and are to be levied if "a community college wishes to spend larger sums of money than the state funds provided for general operation. . . ." A.C.A. § 6-61-602(a).

It is therefore my opinion that the answer to your question is "yes."

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh

¹ The State Community College Board is the State Board of Higher Education. See A.C.A. § 6-61-501(5) (Cum. Supp. 1991).