Can a Mississippi city wipe out a resident's past garbage bill for the months when the city had taken away their garbage can?

Plain-English summary

A City of Petal resident owed back garbage charges. Some of the back charges accumulated during a stretch when the city had removed her garbage can for nonpayment. She argued she shouldn't owe for service she didn't receive. The city attorney asked the AG whether the city could forgive those charges.

The AG drew a careful distinction.

If you got the service, the city can't waive your bill. Article 4, § 100 of the Mississippi Constitution prohibits the legislature, levee boards, and any county, city, or town from remitting, releasing, postponing, or diminishing any obligation owed to them. The only ways to extinguish such an obligation are payment to the proper treasury, exchange for face value, or a general-law-authorized compromise of doubtful claims. § 21-27-27 also expressly prohibits Mississippi municipalities from providing free utilities to private persons. The AG opinion line (Woodard (2009), Glidewell (2009)) consistently holds that a city cannot reduce or forgive a utility bill where the customer received the benefit of the service.

If you didn't get the service, you don't owe a debt. The other side of the analysis is that there is no debt to forgive in the first place. If the city removed the resident's garbage can and stopped collecting her garbage, there was no garbage service provided, and therefore no charge accrued. Cancelling the charge for that period is not "forgiveness" of a debt; it is correction of an erroneous billing.

The AG's bottom line: the city has to make a factual determination of whether the resident actually received the garbage service during the disputed period. If she did, the bill stands. If she didn't, the city must cancel the charges for that period because no debt accrued.

The opinion is on prospective questions only. The AG cannot validate or invalidate past actions (citing § 7-5-25 and the long-standing Magee (2008) and St. Pé (2019) opinions). The opinion does not bless the city's existing billing decisions; it tells the city how to handle the question going forward.

Questions two and three (about "unforeseen circumstances" exceptions to the donation prohibition) became moot once the AG resolved question one on the simpler "no service, no debt" theory.

What this means for you

If you are a Mississippi city utility manager or municipal attorney handling billing disputes

The hinge question is always: did the customer receive the benefit of the service? Your billing records are not dispositive. The pickup logs, the route schedule, the customer's documentation, and the physical reality on the ground all matter.

When a customer disputes charges:
1. Get the dispute in writing with specifics (dates, addresses, what didn't happen).
2. Pull your route logs, work orders, and any can-removal records for the disputed period.
3. Make a documented factual determination of whether service was provided.
4. If service was provided, the bill stands. Communicate that clearly to the customer.
5. If service was not provided, cancel the charges for that period and document the basis on the city's minutes or the utility records.

Do not "split the baby" by partial forgiveness. Either the customer received the service (and owes) or did not (and doesn't). A discretionary partial waiver looks like a donation and exposes the city to audit findings under § 100.

If you are a Mississippi resident disputing a utility bill

The legal standard is whether you received the benefit of the service. If you did not (the city removed your can, the route skipped your address, the meter was misread), document everything and request the city make a formal factual determination.

Bring evidence: photos of the missing can, neighbors' affidavits, dates the can was removed, dates you picked up trash yourself, and any communications you had with the city. The city has to make a factual determination, and your documentation is what that determination rests on.

If the city refuses to investigate or refuses to cancel charges for legitimate no-service periods, your remedies are: appeal through any local administrative process, file a complaint with the State Auditor (the Auditor cares about wrongful debt forgiveness as much as wrongful debt collection), and in extreme cases, sue in chancery court for declaratory judgment.

If you are a mayor or city council member voting on a billing waiver request

The constitutional rule is bright. If service was provided, no waiver. If service was not provided, no debt to waive in the first place (it's a billing correction, not a waiver).

The trap to avoid: a sympathy waiver. The customer is in financial distress, the bill is large, the council wants to help. State law does not allow you to forgive a legitimate utility debt to help a struggling resident. Resources for struggling residents include LIHEAP and other federal/state assistance programs that operate within the rules.

Document the basis for any cancellation on the minutes. State Auditor field examiners look at utility receivables write-offs and want to see clear factual determinations supporting them.

If you are a State Auditor field examiner reviewing municipal utility receivables

Look for write-offs that are dressed up as "no service" determinations but lack documentation. The Eaton opinion permits cancellation only on a factual finding of no service. Write-offs that are functional sympathy waivers should be questioned.

The opposite problem also exists: customers are sometimes overcharged for periods of legitimate no service, and the city refuses to correct. Audit the receivables aging and the dispute logs together.

If you are a community advocate working with low-income residents on utility issues

The state-law framework does not allow cities to forgive legitimate utility debt for hardship. Federal programs (LIHEAP, weatherization assistance), nonprofit assistance funds, and city-sanctioned charitable funds (where the funds come from voluntary donations, not taxpayer dollars) are the available pathways.

Where the resident genuinely did not receive service, advocate for the city to make a proper factual determination and cancel the charges. The AG opinion line is on the resident's side for that scenario.

Common questions

Q: Can the city offer payment plans on a legitimate past-due garbage bill?
A: Yes. A payment plan defers payment but doesn't reduce the obligation. The customer still owes the full amount. Most cities offer payment plans for utility arrears.

Q: Can the city write off a bill as "uncollectible"?
A: Yes, in narrow circumstances. § 100 of the Constitution permits "compromise of doubtful claims" by general law. Doubtful debts (where the debtor cannot be located, the statute of limitations has run, or collection cost would exceed the debt) can be written off through proper procedure under the State Auditor's regulations and applicable statutes. This is different from forgiving a legitimate debt for a viable debtor.

Q: Can the city deduct interest and penalties even when the underlying charge was not legitimate?
A: If no service was provided, no underlying debt accrued, and no interest or penalties accrued either. All of it gets cancelled together.

Q: What if the customer disputes service but the city's records show the route was completed?
A: The city has to make a factual determination based on the available evidence. Route logs are evidence. Customer testimony is evidence. Photos and documentation are evidence. The decision rests on the totality.

Q: Can the city give discounts to senior citizens or low-income residents?
A: § 21-27-27's prohibition on free utilities to private persons creates a barrier. Some discount programs may be permissible if structured under a specific statute that authorizes them; consult specific advice. Programs that effectively waive a portion of the legitimate utility charge for a class of residents tend to fail the constitutional analysis.

Q: Can the city wipe out garbage debt as part of a property sale?
A: A condition of sale that the buyer assume the prior owner's debt is one structure. A waiver of the debt by the city is not. Tax liens against the property for unpaid utility charges can also be enforced.

Q: What about a one-time amnesty program for back utility bills?
A: Amnesty programs are constitutionally suspect under § 100 because they forgive legitimate debt. Some cities have run them anyway; they are vulnerable to audit findings and citizen suit. Consult specific advice before adopting one.

Q: Does this same analysis apply to water and sewer bills?
A: Yes. § 21-27-11's "system" definition covers water, sewer, and garbage. § 21-27-27's free-service prohibition applies to all of them. The constitutional § 100 analysis applies to all government debts. Water and sewer billing disputes follow the same framework.

Background and statutory framework

§ 21-27-11 defines a municipal utility "system" to include water, sewer, gas, and garbage disposal systems.

§ 21-27-27 expressly prohibits municipalities from providing free utilities to private persons. The statutory hook for the constitutional analysis.

Article 4, § 100 of the Mississippi Constitution: "No obligation or liability of any person, association, or corporation held or owned by this state, or levee board, or any county, city, or town thereof, shall ever be remitted, released or postponed, or in any way diminished by the Legislature, nor shall such liability or obligation be extinguished except by payment thereof into the proper treasury; nor shall such liability or obligation be exchanged or transferred except upon payment of its face value; but this shall not be construed to prevent the Legislature from providing by general law for the compromise of doubtful claims."

The AG opinion line: Woodard (2009) (board of supervisors cannot forgive delinquent garbage fees where there is no dispute as to garbage services provided to the address); Glidewell (2009) (municipality cannot reduce or forgive a utility bill of a customer who has received benefits of the service); Eaton (2023) (no service, no debt; the cancellation is a billing correction, not a debt forgiveness).

§ 7-5-25 limits the AG to prospective questions of state law and excludes opinions that validate or invalidate past actions.

Citations

• Miss. Code Ann. § 7-5-25 (limits on AG opinion authority)
• Miss. Code Ann. § 21-27-11 (definition of municipal utility "system")
• Miss. Code Ann. § 21-27-27 (prohibition on free utilities to private persons)
• Miss. Const. Art. 4, § 100 (prohibition on remission of obligations owed to public entities)
• MS AG Op., Glidewell (Aug. 14, 2009) (city cannot forgive utility bill where customer received service)
• MS AG Op., Magee (Aug. 29, 2008) (AG opinions cannot validate or invalidate past actions)
• MS AG Op., St. Pé (Sept. 6, 2019) (AG opinions cannot make factual determinations)
• MS AG Op., Woodard (Aug. 21, 2009) (board of supervisors cannot forgive delinquent garbage fees)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/01/R.Eaton-January-3-2023-Forgiveness-of-Past-Due-Garbage-Charges.pdf

Original opinion text

January 3, 2023

Rocky W. Eaton, Esq.
Attorney, City of Petal
Post Office Box 564
Petal, Mississippi 39465
Re:

Forgiveness of Past Due Garbage Charges

Dear Mr. Eaton:
The Office of the Attorney General has received your request for an official opinion.
Background
In your request, you state that one of the citizens of the City of Petal ("the City") owes the City for
past due garbage charges. Some of these past due charges were incurred during a period of time
when the City had removed the citizen's City-supplied garbage can due to non-payment of charges.
The citizen now requests that the City forgive the garbage charges on her account, along with
associated interest and penalty charges, for the time period when the City had removed the garbage
can, asserting that she did not receive the service for which she had been charged and that the City
incorrectly charged her during the subject time period.
Questions Presented
1. Assuming that the City did not pick up garbage from the citizen's residence during the time
that the garbage can had been removed from the residence, may the City forgive the charges
on the citizen's account, along with associated interest and penalty charges, for the time
period when the City had removed the garbage can, upon a finding that the citizen did not
receive the benefits of the utility service?
2. If the answer to question one is "no," may the City forgive the charges upon an additional
finding that the removal of the garbage can caused an unreasonable increase in charges
owed to the City because of unforeseen circumstances?
3. If the answer to question two is "yes," would the removal of the garbage can by the City
equate to an unforeseen circumstance when the citizen received billing statements from the
City indicating a past due amount?
Brief Response
1. If the City makes a factual determination that the citizen did not receive the benefit of the
garbage service for a specific period of time, then the citizen does not owe any payment
for a service that the citizen did not receive during that time period. Therefore, the City
could cancel the charge for the time period when the citizen was not receiving the benefit
of the service.
2. Due to our response to your first question, your second question is moot.
3. Due to our response to the previous questions, your third question is moot.
Applicable Law and Discussion
Pursuant to Section 7-5-25, this office may only opine on prospective questions of law. An official
opinion can neither validate nor invalidate past action. MS AG Op., Magee at 1 (Aug. 29, 2008).
Furthermore, opinions of this office cannot be issued which require our office to make a factual
determination. MS AG Op., St. Pé at 1 (Sept. 6, 2019). We offer no opinion on the validity of
any past garbage charges in question and offer the following for prospective purposes only.
The definition of a municipal utility "system" includes a garbage disposal system. Miss. Code
Ann. § 21-27-11. Section 21-27-27, however, expressly prohibits a municipality from providing
free utilities to any private person. Additionally, Section 100 of the Mississippi Constitution
provides:
No obligation or liability of any person, association, or corporation held or owned
by this state, or levee board, or any county, city, or town thereof, shall ever be
remitted, released or postponed, or in any way diminished by the Legislature, nor
shall such liability or obligation be extinguished except by payment thereof into the
proper treasury; nor shall such liability or obligation be exchanged or transferred
except upon payment of its face value; but this shall not be construed to prevent the
Legislature from providing by general law for the compromise of doubtful claims.
This office has previously opined that a board of supervisors has no authority pursuant to Article
4, Section 100 of the Mississippi Constitution to forgive delinquent garbage fees where there is no
dispute as to garbage services provided to the address. MS AG Op., Woodard at 1 (Aug. 21,
2009). "With respect to whether a debt is owed to the municipality, we have consistently opined
that a municipality may not reduce or forgive a utility bill of a customer when the customer has
received the benefits of the utility service." MS AG Op., Glidewell at 1 (Aug. 14, 2009).
In your request, however, you note that the citizen owed the City for past due garbage charges, but
some of these charges were incurred during a period of time when the City had removed the
citizen's garbage can, and the citizen purportedly did not receive garbage pickup. If the citizen did
not receive the benefit of the garbage service during the time the City removed the garbage can,
then the citizen does not owe a debt for an unpaid charge. The City would need to make a factual
determination as to whether the citizen received the benefit of the service; if the citizen did not,
then the citizen does not owe any charges for that time period. The City would need to cancel the
portion of the charges incurred when the citizen did not receive the benefit of the garbage service.
Due to our response to your first question, your second question is moot.
Consequently, based on our responses to your first two questions, your third question is also moot.
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/ Gregory Alston
Gregory Alston
Special Assistant Attorney General