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Unofficial Opinion 2005-2

PRESS ADVISORY

Unofficial Opinion 2005-2

June 9, 2005
To: 

County Attorney

Re: 

The 2004 amendment to O.C.G.A. § 36‑70‑2(5.2)[1] removes any sheriff, clerk of the superior court, judge of the probate court, or tax commissioner or the office, personnel, or services provided by such elected officials from the definition of “local government” with the result that those officials and the costs of their offices are not to be included in the deliberations of local government officials when formulating agreements between counties and cities regarding the delivery of local government services.

 

 

You have asked for guidance regarding the removal of sheriffs and other public officials from the definition of “local government” in the 2004 amendment to O.C.G.A. § 36‑70‑2(5.2) (Supp. 2004) in House Bill 666.

The responsibility for delivery of local government services is addressed in Article 2 of Chapter 70 of Title 36 of the Code.  O.C.G.A. §§ 36‑70‑20 through 36‑70‑28 (2000 and Supp. 2004).  Under the provisions governing planning, counties and cities are to develop coordinated and comprehensive plans pursuant to minimum standards and procedures established by the Department of Community Affairs.  See O.C.G.A. §§ 36‑70‑1 through 36‑70‑5 (2000 and Supp. 2004); see also 50-8-30.  Under Article 2 of Chapter 70, entitled “Service Delivery,” local governments are to “execute an agreement for the implementation of a local government service delivery strategy as set forth in this article by July 1, 1999.” O.C.G.A. § 36‑70‑21.  Revisions to the service delivery strategy are to be made “if necessary,” as provided in O.C.G.A. § 36‑70‑28(b)(1)–(6).[1]

O.C.G.A. § 36‑70‑2 (Supp. 2004) lists the definitions of various terms used in Chapter 70.  House Bill 666 changed the definition of “local government” in O.C.G.A. § 36‑70‑2(5.2) (Supp. 2004) to exclude certain officials and their office as follows:

(5.2) 'Local government' means any county as defined in paragraph (3) of this Code section or any municipality as defined in paragraph (7) of this Code section.  The term does not include any school district of this state nor any sheriff, clerk of the superior court, judge of the probate court, or tax commissioner or the office, personnel, or services provided by such elected officials.

2004 Ga. Laws 585 § 1 (emphasis added) (underscored matter added by 2004 amendment), amending O.C.G.A. § 36‑70‑2(5.2) (effective May 13, 2004).

As I understand from your letter, there has been a disagreement between Hall County and the City of Gainesville regarding whether, by enacting HB 666, the General Assembly meant to remove or omit the costs of the sheriff and the sheriff’s office from tax equity negotiations between cities and counties.  We have received and reviewed the analyses from you as counsel for Hall County, from counsel for the Association County Commissioners of Georgia, and from counsel for the Georgia Municipal Association.  You conclude in your letter that HB 666 “provides that the operations of the sheriff, clerk of court, probate judge and tax commissioner are not to be included in the deliberations between county commissioners and municipal officials in negotiating county Service Delivery Strategies.”  This view is shared by the Association County Commissioners of Georgia.

The Georgia Municipal Association (GMA) does not agree.  In a memorandum to its members dated May 10, 2004, which you enclosed with your letter, the Executive Director of GMA states:

GMA has learned that county officials engaged in updates to their comprehensive plans and/or service delivery strategies are now attempting to use this amendment to specifically exclude the costs and services of the sheriff’s office from examination under the tax equity provisions of the Service Delivery Strategy Act.  Please be advised that HB 666, if signed by the Governor, will not change this requirement.  In fact, counties must still address the tax equity issues caused by the cost of services provided primarily for the benefit of unincorporated areas of the county. These costs must be borne by the unincorporated area residents who receive these services.

Publication by GMA dated May 10, 2004, to GMA Member Cities from Jim Higdon, Executive Director.

We received a letter from counsel for GMA which states that the Service Delivery statutes focus not on the services a local government “could” provide, but the ones they “actually do” provide.  Letter from Susan Pruett, General Counsel for GMA, dated January 28, 2005, at 2 (hereinafter “GMA letter”).  In the letter, GMA’s counsel contends that sheriffs have both “mandated” duties and “discretionary” duties.  GMA letter at 1.  GMA agrees that the mandated duties, like running the county jail, serving process, transporting prisoners, and providing security for the courthouse, should be funded on a county-wide basis.  Id.  However, GMA counsel argues that the “patrol function” of the sheriff’s office is “not provided on a county-wide basis in many areas of this state,” and that “city residents should not be required to pay both city ad valorem taxes to fund the law enforcement services of the city police department and pay county ad valorem taxes to pay for law enforcement services of the sheriff’s office provided only to unincorporated area residents.”  Id. at 1, 2.  As I understand it, counsel for GMA argues that HB 666 does not exclude the costs of the sheriff’s office “from examination under the tax equity provisions” of the Service Delivery statutes because the change to the definition of “local government” in HB 666 did not effect a change of the meaning of the phrase “any service” in O.C.G.A. § 36‑70‑24(3)(A) (Supp. 2004).  Id. at 3.  As I further understand, the argument is that the phrase “any service” includes the services of the sheriff and the sheriff’s office.  The amendment to the term “local government” did not effect a change in the meaning of “any service”; thus, the amendment does not alter the requirement that cities and counties must fully consider the way services are funded to assure that municipal residents are not taxed twice for law enforcement services of both city police and the sheriff’s office.  Id. at 2.

Local governments are to develop service delivery strategies that “promote the delivery of local government services in the most efficient, effective, and responsive manner.  The strategy shall identify steps which will be taken to remediate or avoid overlapping and unnecessary competition and duplication of service delivery and shall identify the time frame in which such steps shall be taken.”  O.C.G.A § 36‑70‑24(1) (Supp. 2004).

GMA objects to paying for services of the sheriffs which it sees as duplicative of municipal law enforcement services.  However, the definition of “local governments” in HB 666 expressly excludes sheriffs and the other officials listed and their offices.  In construing this statute, “the ordinary signification shall be applied to all words."  O.C.G.A. § 1‑3‑1(b).  GMA’s view that the phrase “any service” is not synonymous with any “local government service” is not borne out by the plain language of the statute.  In O.C.GA. § 36‑70‑24(3)(A) (Supp. 2004), the term “any” modifies “service,” and Chapter 70 of Title 36 concerns the “strategy” for the delivery of services.

The strategy shall ensure that the cost of any service which a county provides primarily for the benefit of the unincorporated area of the county shall be borne by the unincorporated area residents, individuals, and property owners who receive the service. Further, when the county and one or more municipalities jointly fund a county-wide service, the county share of such funding shall be borne by the unincorporated residents, individuals, and property owners that receive the service.

O.C.G.A. § 36‑70‑24(3)(A) (Supp. 2004) (emphasis added).

Statutes are to be construed in pari materia or in relation to other statutes of which they are a part and all statutes relating to the same subject matter; that is, statutes should be construed and harmonized wherever possible so as to give effect to the legislative intent.  Ryan v. Commissioners of Chatham County, 203 Ga. 730 (1948).  When read in pari materia, the entire Article is about local government service delivery strategy.  In construing HB 666, the plain meaning of “do not include” in the amendment is inescapable:  sheriffs and the other listed officials and their offices are to be omitted or “not included” throughout the Service Delivery statutesThis is true whether the Code provisions refer to “local government” or analogous phrases like “such services” or “each service” or “the services” or “identified services.”

This is consistent with the analysis of a commentator who stated that “[a] clarifying statute provides that sheriffs, clerks of court, probate judges, and tax commissioners are not included in county-municipal deliberations for formulating county service delivery strategies.”  R. Perry Sentell, Jr., Annual Survey of Georgia Law:  June 1, 2003 - May 31, 2004, Local Government Law, 56 Mercer L. Rev. 351, 393 (2004) (citing Ga. H.R. Bill 666, Reg. Sess. (2004)) (emphasis added).  Thus, whenever the phrase “local government services” or any analogous phrase is used, HB 666 expressly provides that sheriffs, the other listed officials and their offices are “not include[ed].”  2004 Ga. Laws 585 § 1.

This analysis is borne out when those phrases are considered in the context of the statute.  Phrases that refer to “services” all mean “local government” services.  For example:

Each local government service delivery strategy shall include the following components:

(1) An identification of all local government services presently provided or primarily funded by each general purpose local government and each authority within the county, or providing services within the county, and a description of the geographic area in which the identified services are provided by each jurisdiction;

(2) An assignment of which local government or authority, pursuant to the requirements of this article, will provide each service, the geographic areas of the county in which such services are to be provided, and a description of any services to be provided by any local government to any geographic area outside its geographical boundaries. In the event two or more local governments within the county are assigned responsibility for providing identical services within the same geographic area, the strategy shall include an explanation of such arrangement;

(3) A description of the source of the funding for each service identified pursuant to paragraph (2) of this Code section; and

(4) An identification of the mechanisms to be utilized to facilitate the implementation of the services and funding responsibilities identified pursuant to paragraphs (2) and (3) of this Code section.

O.C.G.A. § 36‑70‑23 (emphasis added).

Also, O.C.G.A. § 36‑70‑24 (Supp. 2004) provides in pertinent part:

In the development of a service delivery strategy, the following criteria shall be met:
(1) The strategy shall promote the delivery of local government services in the most efficient, effective, and responsive manner.  The strategy shall identify steps which will be taken to remediate or avoid overlapping and unnecessary competition and duplication of service delivery. . . . When a municipality provides a service at a higher level than the base level of service . . . such service shall not be considered a duplication of the county service;
(2)(A) The strategy shall provide that water or sewer fees charged to customers located outside the geographic boundaries of a service provider shall not be arbitrarily higher than the fees charged to customers . . . located within the geographic boundaries of the service provider.

(3)(A) The strategy shall ensure that the cost of any service which a county provides primarily for the benefit of the unincorporated area of the county shall be borne by the unincorporated area residents, individuals, and property owners who receive the service. Further, when the county and one or more municipalities jointly fund a county-wide service, the county share of such funding shall be borne by the unincorporated residents, individuals, and property owners that receive the service.

(Emphasis added.)

While I understand the views of both the county and the city proponents to be reasonable as policy views, the plain meaning rule and the context of the phrases in Article 2 as a whole dictate that these similar clauses mean “any local government service.”

Therefore, it is my unofficial opinion that the 2004 amendment to O.C.G.A. § 36‑70‑2(5.2) (Supp. 2004) removes any sheriff, clerk of the superior court, judge of the probate court, or tax commissioner or the office, personnel, or services provided by such elected officials from the definition of “local government” with the result that those officials and the costs of their offices are not to be included in the deliberations of local government officials when formulating agreements between counties and cities regarding the delivery of local government services.

Prepared by:

SHEREEN M. WALLS

Assistant Attorney General




[1] The local government service delivery laws in Chapter 70 of Title 36 are sometimes referred to herein as the “Service Delivery statutes.”