Can an Arkansas regional public water authority shut off water service to a city customer for unpaid bills?

Plain-English summary

Representative David Branscum asked whether the Ozark Mountain Regional Public Water Authority could refuse water service to the City of Marshall for nonpayment. The AG declined to decide whether a cutoff was permissible.

He gave two reasons. First, he said the question required reviewing the water contract together with applicable corporate documents and procedures. That kind of contract analysis was outside the scope of an AG opinion. Second, the water purchase contract was already the subject of pending litigation, and the office's longstanding practice was not to issue opinions on matters before a court.

The opinion identifies the authority as organized under Act 115 of 2001 and governed by the Water Authority Act. It makes no finding about a statutory cutoff procedure, a breach remedy, or the terms of the parties' contract.

Currency note

This opinion was issued in 2014. It did not decide the parties' rights or the outcome of their litigation. Review the contract, applicable law, and any court rulings for a current dispute.

Common questions

Did the AG approve or forbid shutting off Marshall's water?
Neither. He declined to answer because the issue required contract analysis and was in pending litigation.

What would have to be reviewed to answer the question?
The AG said the contract terms, applicable corporate documents, and procedures would need to be considered together.

Did the AG say the Water Authority Act has no cutoff rule?
No. He reviewed the statutory framework and concluded the request was a contract matter, but did not make a finding that the Act was silent on service termination.

Why did the litigation matter?
The water purchase contract was already before a court. The AG cited his office's longstanding policy against opining on matters in pending litigation as an additional reason to decline.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2014-033

April 4, 2014

The Honorable David L. Branscum
State Representative
Post Office Box 370
Marshall, Arkansas 72650-0370

Dear Representative Branscum:

You have requested my opinion on whether it is permissible for the Ozark Mountain Regional Public Water Authority to refuse water service to the City of Marshall for lack of payment.

RESPONSE

According to the Arkansas Secretary of State's website, the Ozark Mountain Regional Public Water Authority is organized as a domestic public water authority under Act 115 of 2001. As such, it is governed by the Water Authority Act, which is codified at Arkansas Code title 4, chapter 35 (Supp. 2013). My review of this body of law indicates that your question is a matter of contract between the parties. I am consequently unable to offer an opinion on the matter, as this would entail reviewing contractual terms in conjunction with any applicable corporate documents and procedures. Such an analysis is not within the scope of an Attorney General Opinion.

It has also come to my attention that the water purchase contract between the Ozark Mountain Regional Public Water Authority and the City of Marshall is the subject of currently pending litigation. Although I have a statutory duty to render my opinion to members of the legislature and various state officials regarding matters of state law, my office adheres to a long-standing policy against issuing opinions concerning matters that are the subject of pending litigation. Accordingly, I must for this additional reason respectfully decline to address your question.

I regret I could not be of assistance in this matter. Please feel free to contact me if I can help you in some other respect.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN MCDANIEL
Attorney General

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