MS 2020-09-S-Barber-August-31-2020-Collection-of-Delinquent-Garbage-Collection-Fees August 31, 2020

Can a Mississippi county or its garbage vendor stop collecting trash from people who don't pay, and can the county block their car tags?

Short answer: The AG concluded that neither the DeSoto County Board of Supervisors nor its third-party garbage vendor could suspend service to delinquent households. The county could, however, withhold car tag issuance and renewal under Section 19-5-22 after notice and an opportunity for a hearing.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

DeSoto County contracted with a third-party vendor for garbage collection. The vendor also bills and collects the fees. The contract bid (RFP) said the vendor could not stop or suspend collection because of delinquent accounts. The Board asked the AG two questions: could the Board now allow the vendor to suspend service to delinquent households as a collection lever, and could the county refuse to issue car tags to people who owed delinquent garbage fees?

The AG said no on the service cutoff and yes on the car-tag hold.

Service cutoff. Section 19-5-17 imposes the duty to collect and dispose of garbage on the Board itself. Section 19-5-21 lays out how the county pays for that: an ad valorem tax up to 4 mills under subsection (1)(a), customer fees under subsection (2), borrowing in anticipation of those revenues under subsection (6), special-fund money under subsection (7), and limited general-fund spending under Section 19-5-109 to backstop unanticipated costs and shortfalls. Nothing in this funding architecture authorizes the county or its billing vendor to use service termination as a collection tactic. Earlier AG opinions (Hemphill, Apr. 23, 2010; McNeal, Oct. 11, 2013) had already said so. The AG followed them: termination of service to delinquent households "is not an option available to the Board to defray the costs and expenses incurred by providing those services."

Car-tag hold. Mississippi has a deliberate enforcement workflow built into Sections 19-5-18 and 19-5-22. The third-party vendor is obligated by Section 19-5-18(2) to give the Board monthly notice of unpaid Section 19-5-21 fees. The Board may then notify the tax collector under Section 19-5-22(4)(a) of any unpaid fees within 90 days after they came due. Before doing that, the Board must give the delinquent owner notice and an opportunity for a hearing that complies with constitutional due process protections. The Board sets up the hearing procedures, including the contents of the notice and the procedure for paying delinquent fees, and may designate a disinterested individual as hearing officer. After receiving a delinquency notice, the tax collector must refuse to issue or renew a motor-vehicle road and bridge privilege license (a "car tag") for any vehicle owned by the delinquent person until the unpaid fees are paid alongside any other taxes or fees due on the vehicle. The tag-renewal-notice mechanics in subsection (4)(c) keep the system synchronized.

The opinion also walks through the broader menu of statutory remedies available to counties for unpaid garbage fees: civil action (Section 19-5-17), collection by a county official or by contract (Section 19-5-18), property liens (Section 19-5-22(2)), the car-tag tool (Section 19-5-22), special assessments (Section 19-5-22(5)), and lis pendens filings (Section 11-47-1 et seq.).

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why can't the county just stop picking up trash from people who don't pay?

Because Section 19-5-17 makes garbage collection the county's duty, and the funding mechanisms in Section 19-5-21 are exhaustive. Service termination is not on that list. Earlier AG opinions Hemphill (Apr. 23, 2010) and McNeal (Oct. 11, 2013) had already foreclosed that route, even when the billing is run through a third-party vendor.

What happens if the contract with the vendor said the vendor "could" cut off service?

The opinion does not address that hypothetical because DeSoto County's RFP actually said the vendor could not. Even if a contract had purported to permit cutoff, the AG's reasoning would still apply: the county itself has no power to delegate, so a contract clause cannot manufacture authority that does not exist in statute.

How does the car-tag tool actually work in practice?

Three steps. First, the vendor or designated billing official must report unpaid fees to the Board monthly under Section 19-5-18(2). Second, the Board notifies the delinquent owner and offers a due-process hearing, then notifies the tax collector under Section 19-5-22(4)(a). Third, the tax collector cannot issue or renew the owner's car tag until the delinquent garbage fees are paid alongside other taxes and fees on the vehicle. Subsection (4)(c) lets the tax collector route the renewal notices through the designated billing official to flag the holds.

Are there other things the county can do?

Yes. The opinion lists six tools: a civil action under Section 19-5-17; collection through a county official or by contract under Section 19-5-18; a property lien under Section 19-5-22(2); the car-tag hold; a special assessment in lieu of lien under Section 19-5-22(5); and a lis pendens filing under Section 11-47-1 et seq.

Who pays for trash collection if it isn't fully covered by fees?

Section 19-5-21(1)(a) authorizes an ad valorem tax up to 4 mills. Subsection (6) lets the Board borrow in anticipation of either the tax or the fees. Subsection (7) lets undedicated special-fund money be used. Section 19-5-109 lets the general fund absorb unanticipated costs and shortfalls but cannot be budgeted in advance for that purpose.

Background and statutory framework

Section 19-5-17 imposes the garbage-collection duty on counties.

Section 19-5-21 sets out the funding architecture:

Subsection (1)(a): up to 4-mill ad valorem tax on property in the served area.
Subsection (2): authority to assess and collect fees from single-family residential generators (and certain industrial, commercial, and multifamily generators).
Subsection (6): authority to borrow in anticipation of the tax or the fees, or both.
Subsection (7): authority to use undedicated special-fund money.

Section 19-5-109 allows general-fund spending only for unanticipated costs and shortfalls; it cannot be budgeted as a baseline funding source.

Section 19-5-18(2) requires the third-party vendor to give the Board monthly notice of unpaid fees.

Section 19-5-22(4)(a)–(c) defines the car-tag hold mechanism: notice, hearing, designation of a hearing officer if desired, communication with the tax collector, and the synchronization of renewal notices.

Other statutory remedies are sprinkled across Sections 19-5-17, 19-5-18, 19-5-22(2), 19-5-22(5), and 11-47-1 et seq. (lis pendens).

The opinion is signed by Special Assistant Attorney General Phil Carter on behalf of Attorney General Lynn Fitch.

Citations

Miss. Code Ann. Section 19-5-17 (county garbage collection duty)
Miss. Code Ann. Section 19-5-18 (collection methods)
Miss. Code Ann. Section 19-5-18(2) (vendor reporting)
Miss. Code Ann. Section 19-5-21 (funding architecture)
Miss. Code Ann. Section 19-5-21(1)(a) (4-mill ad valorem tax)
Miss. Code Ann. Section 19-5-21(2) (fee authority)
Miss. Code Ann. Section 19-5-21(6) (borrowing)
Miss. Code Ann. Section 19-5-21(7) (special-fund use)
Miss. Code Ann. Section 19-5-22 (car tag hold)
Miss. Code Ann. Section 19-5-22(2) (lien)
Miss. Code Ann. Section 19-5-22(4) (notice and hearing)
Miss. Code Ann. Section 19-5-22(5) (special assessment)
Miss. Code Ann. Section 19-5-109 (general fund backstop)
Miss. Code Ann. Section 11-47-1 et seq. (lis pendens)
MS AG Op., Hemphill at *1 (Apr. 23, 2010)
MS AG Op., McNeal at *2 (Oct. 11, 2013)
MS AG Op., Webb (Jan. 29, 2016)
MS AG Op., Haque (Aug. 2, 1996)
MS AG Op., Hall (Aug. 30, 2012)
MS AG Op., Hammack (Sept. 28, 1994)
MS AG Op., Turnage (June 2, 2006)
MS AG Op., Cadle (Oct. 10, 2008)

Source

Original opinion text

August 31, 2020

Samuel T. Barber, Esq.
Board Attorney, DeSoto County Board of Supervisors
Post Office Box 346
Hernando, Mississippi 38632

Re: Collection of Delinquent Garbage Collection Fees

Dear Mr. Barber:

The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.

Question Presented

May the DeSoto County Board of Supervisors ("the Board") allow its third-party vendor to suspend garbage collection services to households that have delinquent accounts, in an effort to bring those accounts current?
May the county refuse to issue car tags to individuals who have delinquent garbage collection accounts with the third-party vendor?

Background

The Board has contracted with a third-party vendor for garbage collection services in the county. Pursuant to the contract, the third-party vendor also assesses and collects the fee for garbage collection services.

The contract was awarded pursuant to a Request for Bids ("RFP"), which included, among its specifications, that the vendor awarded the contract could not suspend or stop garbage collection services by reason of delinquent accounts.

Brief Response

In response to your first question, we find no authority for a county or third party-vendor that has undertaken billing for garbage collection services, pursuant to a contract with the county, to suspend garbage collection services to households with delinquent accounts. See MS AG Op., Hemphill at *1 (Apr. 23, 2010). The statutory remedies by which a third-party vendor and/or the county may seek collection upon those delinquent accounts are set forth below.
In response to your second question, a county may refuse to issue or renew car tags based on the existence of a delinquent account, in accordance with Mississippi Code Annotated Section 19-5-22.

Applicable Law and Discussion

As acknowledged by your request, the Board has the obligation "to provide for the collection and disposal of garbage" pursuant to Mississippi Code Annotated Section 19-5-17. To defray the costs associated with that statutory duty, the county may levy an ad valorem tax not to exceed four (4) mills on all taxable property within the area served by the county garbage collection or disposal system, pursuant to Section 19-5-21(1)(a), except as otherwise provided therein at subsections (b), (c), (d) and (g).

Section 19-5-21(2) authorizes the Board to assess and collect fees or charges to further defray the costs of operating its garbage collection system, stating, in part:

The board of supervisors may assess and collect the fees or charges from each single family residential generator of garbage and/or rubbish. The board of supervisors also may assess and collect the fees from each industrial, commercial and multifamily residential generator of garbage or rubbish for any time period that the generator has not contracted for the collection of garbage and rubbish that is ultimately disposed of at a permitted or authorized nonhazardous solid waste management facility.

Section 19-5-21(6) empowers the Board to borrow money for the purposes of defraying the expenses of the system in anticipation of a tax levied pursuant to Section 19-5-21(1)(a), revenues resulting from the assessment of fees pursuant to Section 19-5-21(2), or a combination of both. Special fund monies, which are not otherwise required by law to be dedicated for use for a particular purpose, may also be used to defray the costs of the county garbage collection or disposal system, pursuant to Section 19-5-21(7). See MS AG Op., Webb at *3 (Jan. 29, 2016); MS AG Op., Haque at * 1 (Aug. 2, 1996).

Finally, the Board may spend general fund monies in accordance with Section 19-5-109. These monies, however, may defray only those unanticipated costs of providing garbage collection services and offset shortfalls in anticipated revenue. MS AG Op., Webb at 5 (Jan. 29, 2016); MS AG Op., Hall at 2 (Aug. 30, 2012) (citing MS AG Op., Hammack (Sept. 28, 1994)). General funds should not be budgeted for these purposes. Id.

Terminating service to households with delinquent accounts owed to the county, or a third-party vendor that bills for those services pursuant to a contract with the county, is not an option available to the Board to defray the costs and expenses incurred by providing those services. It is, therefore, our opinion that neither the county, nor a third party-vendor that bills for garbage collection services pursuant to a contract with the county, may suspend or terminate garbage collection services to households with delinquent accounts. See MS AG Op., Hemphill at 1 (Apr. 23, 2010); see also MS AG Op., McNeal 2 (Oct. 11, 2013).

Statutory remedies by which counties may pursue the payment of delinquent garbage collection accounts include (1) the initiation of a civil action, pursuant to Section 19-5-17; (2) collection by a county official or by contract with a public or private entity, pursuant to Section 19-5-18; (3) imposition of a lien upon the property, pursuant to Section 19-5-22(2); (4) withholding the issuance of a car tag, pursuant to Section 19-5-22; (5) levy of the garbage collection fees as a special assessment against the property in lieu of lien, pursuant to Section 19-5-22(5); and (6) filing a lis pendens notice against the property owner, pursuant to Section 11-47-1 et seq. See MS AG Op., Webb 2-4 (Jan. 29, 2016) (citing MS AG Op., Turnage at 2-3 (June 2, 2006)); MS AG Op., Hemphill at 1 (Apr. 23, 2010); MS AG Op., Cadle at 1-2 (Oct. 10, 2008).

With regard to withholding issuance of car tags, the third-party vendor, with which the county has contracted for the billing and/or collection of fees for garbage collection services, is obligated by Section 19-5-18(2) to provide monthly notice to the Board of any unpaid fees assessed under Section 19-5-21. Section 19-5-22 thereafter provides, in relevant part:

(4)(a) The board of supervisors may notify the tax collector of any unpaid fees assessed under Section 19-5-21 within ninety (90) days after the fees are due. Before notifying the tax collector, the board of supervisors shall provide notice of the delinquency to the person who owes the delinquent fees and shall afford an opportunity for a hearing, that complies with the due process protections the board deems necessary, consistent with the Constitutions of the United States and the State of Mississippi. The board of supervisors shall establish procedures for the manner in which notice shall be given and the contents of the notice; however, each notice shall include the amount of fees and shall prescribe the procedure required for payment of the delinquent fees. The board of supervisors may designate a disinterested individual to serve as hearing officer.

(b) Upon receipt of a delinquency notice, the tax collector shall not issue or renew a motor vehicle road and bridge privilege license for any motor vehicle owned by a person who is delinquent in the payment of fees unless those fees in addition to any other taxes or fees assessed against the motor vehicle are paid. Payment of all delinquent garbage fees shall be deemed a condition of receiving a motor vehicle road and privilege license tag.

(c) The tax collector may forward the motor vehicle road and privilege license tag renewal notices to the designated county official or entity that is responsible for the billing and collection of the county garbage fees. The designated county official or the billing and collection entity shall identify those license tags that shall not be issued due to delinquent garbage fees. The designated county official or the billing and collection entity shall stamp a message on the license tag renewal notices that the tag will not be renewed until delinquent garbage fees are paid. The designated county official or the billing and collection entity shall return the license tag notices to the tax collector before the first of the month.

Miss. Code Ann. § 19-5-22 (emphasis added).

Based upon Sections 19-5-18(2) and 19-5-22(4), it is the opinion of this office that the issuance and renewal of a motor vehicle road and bridge privilege license, a car tag, may be withheld from an individual who is delinquent in the payment of his or her garbage collection fees, regardless of whether those fees are assessed and collected by the county or a third-party vendor with which the county has contracted for the billing and collection of garbage collection fees.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,
LYNN FITCH, ATTORNEY GENERAL

By: /s/ Phil Carter
Phil Carter
Special Assistant Attorney General