Opinion No.

The Honorable William Bullock Prosecuting Attorney P.O. Box 1064 Russellville, AR 72801

Dear Mr. Bullock:

This is in response to your request for an opinion regarding the use of funds appropriated by the State Treasurer to counties for solid waste management pursuant to Act 727 of 1985. You have asked the following specific questions in this regard:

1. Who is to administer the Solid Waste Fund, the County Judge or the Quorum Court?

2. If the County Judge is to administer the fund, what, if any, is the role of the Quorum Court, as far as enacting additional ordinances other than those establishing the solid waste program?

3. For what purposes may the solid waste funds be used, and what purposes are prohibited by law?

4. If funds are used to purchase equipment, can this equipment also be used for purposes unrelated to the collection and disposal of solid waste?

5. What are the consequences of not using the funds according to law; i.e., what is the effect of purchasing equipment with solid waste funds which will ultimately be used for other services?

Code provisions governing the County Solid Waste Management System Aid Fund ("Fund") are found at Arkansas Code of 1987 Annotated8-6-301 et seq. and 19-5-1019. These Code provisions authorize the creation of the Fund with money to be allocated to the several counties to defray operational and maintenance costs of each county's solid waste management and disposal system. The State Treasurer allocates to each county its share of funds deposited into the Solid Waste Fund "on the basis of seventy-five (75) counties of the State and twenty-five [percent] (25%) on the population according to the most recent basis of federal decennial census, with each county to receive an allocation thereof in the proportion that its population bears to the total population of the State." A.C.A. 8-6-303 and 19-5-1019(b).

The county judge's authority to administer the fund appears to be limited to his authorization and approval for disbursement of the funds for solid waste management once the State Treasurer distributes the moneys to the county. Amendment 55, Section 3 of the Arkansas Constitution delineates the specific powers of the county judge, among which is the power to "authorize and approve disbursement of appropriated county funds." Once the funds are remitted to the county, the county judge's administration of those funds is limited to disbursement of the funds to satisfy expenses incurred in the operation of the solid waste management system. The statute creating the County Solid Waste Management Aid Fund does not appear to give the county judge any greater authority in handling the money generated by the fund.

The specific powers which the quorum court may exercise with regard to the establishment and operation of the county solid waste management system are contained in A.C.A. 8-6-212. Subparagraphs (b) and (e) list particular instances in which the county shall act by ordinance and provide as follows:

(b) A county government shall have the authority to levy and collect such fees and charges and require such licenses as may be appropriate to discharge the county's responsibility for a solid waste management system or any portion thereof. The fees, charges, and licenses shall be based on a fee schedule contained in a duly adopted ordinance.

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(e) A county shall have the right to . . . enact ordinances concerning all phases of the operation of a solid waste management system including hours of operation, character and kind of wastes accepted at the disposal site, the separation of wastes according to type by those generating them prior to collection, type of containers for storage of wastes, pretreatment of wastes and such other . . . ordinances [sic] not inconsistent with this subchapter or any rules, regulations, or orders of the commission.

The quorum court has the authority to establish by ordinance the schedule of fees, licenses, and charges associated with the solid waste system and the various operational aspects of the system.

A.C.A. 8-6-302 and 8-6-304 must be considered in response to your third question. Section 8-6-302 provides that moneys deposited in the County Solid Waste Management System Aid Fund are "to be used for the purpose of providing financial assistance to counties in the manner provided in this subchapter and for the establishment, expansion, maintenance, and operation of county solid waste collection and disposal systems." The appropriation provision, Section 1 of Act 727, mirrors the language found in 8-6-302 and states that moneys payable from the fund are to be used "for the purpose of providing financial assistance to counties for the establishment, expansion and operation of solid waste collection and disposal systems, as provided by law, . . ." Furthermore, in order to be eligible for receipt of moneys from the fund, the county must provide proof that:

[t]he amount of funds allocated to the county for such year under this subchapter will be used exclusively for establishing, operating, and maintaining the solid waste management system and meeting the requirements of this subchapter including the acquisition of land, acquisition, maintenance, repair, and operation of equipment used in connection with the operation of the solid waste management system.

A.C.A. 8-6-304(3). See also A.C.A. 19-5-1019(c)(1)(B) and (C). The above quoted language evinces the Legislature's intent that solid waste funds be used solely for purposes and functions related to the collection and disposal of solid waste.

Based on the foregoing, it is reasonable to conclude in response to your fourth question that equipment purchased with money from the County Solid Waste Management System Aid Fund cannot be used for purposes unrelated to the collection and disposal of solid waste. Use of equipment for purposes other than those related to collection and disposal of solid waste would be in contravention of the above-cited provisions.

Failure to use the funds as specifically required by law can result in the county's ineligibility for receipt of funds for the following fiscal year. A.C.A. 8-6-305 establishes the penalty for misuse of funds and reads:

If any county . . . uses any of the state funds allocated . . . under the provisions of this subchapter for any purpose other than as intended by this subchapter, then the county shall be ineligible to receive moneys during the next-following fiscal year from the County Solid Waste Management System Aid Fund, but may make re-application for state assistance funds during the year next following thereafter, upon offering the appropriate assurances in writing that the county will meet the full requirements of the intent and purposes of this subchapter in the use of the funds.

See also A.C.A. 19-5-1019(c)(2).

Thus, the use of moneys from the Solid Waste Aid Fund for the purchase of equipment for other services can result in the county being rendered ineligible to receive funds for the following fiscal year.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.