Are fire-protection services provided to an Arkansas city automatically 'in kind,' and can the city charge the fire station rent?

Plain-English summary

Representative Jack Fortner asked whether fire services supplied by a station in the City of Omaha counted as "in kind" services and whether the city could charge the station rent. Attorney General Leslie Rutledge said the request lacked enough detail to resolve Omaha's arrangement. She described the general law instead.

Under Ark. Code Ann. § 14-53-101, a city may establish its own fire department or, by ordinance, contract with a certified existing department for city fire protection. Services under that kind of agreement are not "in kind" as a matter of law. Whether a particular agreement treats them as in-kind depends on its terms and circumstances, which the AG left for local counsel.

Rutledge also said a city's statutory power to lease or rent property it owns or controls generally supports charging rent to a fire station. She did not decide any rental issue under the particular fire-services arrangement.

Currency note

This opinion was issued in 2017. Check current statutes and the actual agreement before relying on it for a present arrangement.

Common questions

Q: Does a fire-protection contract automatically make the services an in-kind contribution?
A: No. Section 14-53-101 does not address contract terms, and the opinion says services under such an agreement are not in-kind as a matter of law. Whether they count that way under a particular agreement is for local counsel to assess.

Q: May a city use an outside fire department for protection?
A: Yes. The statute quoted in the opinion permits a city council, by ordinance, to contract or enter an interlocal agreement with an existing department certified by the Arkansas Fire Protection Services Board instead of establishing its own department.

Q: Can the city charge a fire station rent?
A: A city generally has statutory authority to lease or rent property it owns or controls. Rutledge said that authority generally supports charging rent, but she could not resolve a rental issue arising under an unspecified fire-services agreement.

Q: Who should assess the Omaha agreement?
A: Rutledge directed the contract-specific questions to local counsel, who could examine the arrangement and its circumstances. The request did not give her enough information for a specific conclusion.

Background and statutory framework

Section 14-53-101 gives the city a choice between its own fire department and a contract or interlocal agreement for city fire protection. It does not itself classify the resulting services as in-kind or prescribe the contract terms. The opinion also quotes broad municipal authority to "sell, convey, lease, rent, or let" property owned or controlled by a city. Both questions therefore require attention to the actual arrangement.

Citations

• Ark. Code Ann. § 14-53-101

Source

• Arkansas Attorney General opinions search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2017-008
April 25, 2017

The Honorable Jack Fortner
State Representative
343 MC 4016
Yellville, AR 72687-9030

Dear Representative Fortner:

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

You have requested my opinion on the following:

There is a fire station in the City of Omaha. They provide fire services to the city. Are these considered "in kind" services? Can a city charge a fire station rent?

RESPONSE

I must note at the outset that I lack sufficient information from you to provide a thorough response. Your correspondence included no specific information about the relevant fire services or the pertinent circumstances giving rise to whatever dispute or concern has prompted these questions. I am consequently limited in my ability to identify the controlling principles of law. Without knowing the precise context of your questions, my opinion must of necessity be limited to a general discussion of what I presume is the relevant state law concerning city fire protection services.

DISCUSSION

I gather from the wording of your questions that the city at issue has not established its own fire department. It appears, instead, that some entity other than a city fire department is providing fire protection for the city. I have no information regarding the particular arrangement, but I will note that pursuant to Ark. Code Ann. § 14-53-101, a city may either "establish fire departments" or contract for "city fire protection":

(a)(1) Except as provided in subdivision (a)(2) of this section, the city council shall establish fire departments and provide them with proper engines and such other equipment as shall be necessary to extinguish fires and preserve the property of the city and of the inhabitants from conflagration.

(2) In lieu of establishing its own fire department under this section, the city council by ordinance may enter into a contract or interlocal agreement for city fire protection with an existing fire department certified by the Arkansas Fire Protection Services Board.

Section 14-53-101 does not prescribe or otherwise address the terms of any such contract or agreement for "city fire protection." With regard, therefore, to your question concerning "in kind" services, it seems clear that services provided under a contract or agreement entered pursuant to section 14-53-101 are not considered "in kind" as a matter of law. Whether or not they are considered "in kind" under the terms of a particular contractual arrangement is a separate inquiry that falls outside the scope of an opinion from this office. That question is better directed to local counsel, who could presumably address the issues with full knowledge of the pertinent circumstances.

In response to the question whether a city can "charge a fire station rent," cities are declared "bodies politic and corporate" with express authority to "contract and be contracted with." They are also expressly authorized to "acquire and hold real estate" and to "sell, convey, lease, rent, or let any real estate or personal property owned or controlled by the municipal corporation[.]" This broad statutory authority would generally support a city charging rent for the use of its property. I cannot opine, however, regarding any rental issue that might arise under a particular agreement involving fire services. Again, that is a matter that must be addressed by local counsel.

Sincerely,

LESLIE RUTLEDGE
Attorney General