Can an Oklahoma city create a 'public safety protection district' that taxes all property in the city up to 5 mills for police, fire, and EMS?

Plain-English summary

Representative Ford asked whether Oklahoma cities can use the 2021 Public Safety Protection District Act (11 O.S. §§ 29-151–29-160) to levy an annual assessment of up to 5 mills on every property within the city, with the proceeds going to police, fire, and emergency medical services. The Attorney General said no: the Act is unconstitutional under Article X, § 7 of the Oklahoma Constitution.

The constitutional rule comes from a long line of Oklahoma cases: cities and counties can levy assessments only for "local improvements" that specially and peculiarly benefit a limited class of property owners, as distinct from a benefit to the public at large. If the improvement benefits the whole community, it is not a local improvement and an assessment is, in effect, an unconstitutional ad valorem tax in disguise.

Three reasons the Public Safety Protection District Act fails:

1. Police protection benefits people, not real property. The relationship between law enforcement and property value is too thin to satisfy the "special benefit" test (Donnelly v. Marion Cnty., Florida 2003).

2. Emergency medical services benefit individuals (sick or injured people), not real property. There is no logical connection between EMS and property value (City of North Lauderdale v. SMM Properties, Florida 2002).

3. Fire protection could be a local improvement, but only when the fire district is geographically limited and unique to the assessed properties. The PSO case (Public Serv. Co. v. Northwest Rogers Cnty. Fire Prot. Dist., 1983) upheld assessments for a fire protection district outside any incorporated city, where the protection (and the resulting reduction in insurance premiums) was unique to district property. The Public Safety Protection District Act covers "all territory located within the municipality" (§ 29-153(A)), so the entire city is the district. There is no smaller geographic class to receive a special benefit. Even if fire protection might individually qualify, packaging it with police and EMS into a citywide district destroys the geographic limitation.

The AG follows its own 1988 OK AG 44 opinion, which struck down a similar "criminal justice districts" statute. The Legislature repealed that statute the next session. The same outcome should follow here.

The opinion is advisory only because it concludes a statute is unconstitutional. Under State ex rel. York v. Turpen, the Act remains on the books until a court agrees with the AG. But cities should treat the opinion as a clear warning.

What this means for you

If you are a city council member or city manager considering a public safety protection district

Do not proceed. The opinion is the chief legal officer's view that the Act is unconstitutional. If your city adopts a district and levies the assessment, you can expect a constitutional challenge from a property owner. The challenge is likely to succeed.

If you need additional revenue for public safety, consider:

• A general obligation bond with voter approval under Article X, § 26.
• A dedicated sales tax authorized by voter approval (sales taxes are not ad valorem assessments and avoid the local-improvement constraint).
• An occupational tax authorized under Article X, § 8A.
• For fire-only purposes outside city limits, a statutory fire protection district under 19 O.S. §§ 901.1 et seq.

If you are a municipal taxpayer

Until courts rule, the Public Safety Protection District Act remains on the books. If your city has adopted a district and assessed your property, you have grounds to challenge the assessment. This AG opinion is your roadmap. Consult a municipal-finance attorney about declaratory judgment or refund options.

If you are a city attorney

Advise against creating a public safety protection district. If your city already has one, plan for a challenge. Document your tax base and revenue exposure. Consider whether the city should proactively seek a declaratory judgment to clarify the legal status before more time and revenue accumulate under a potentially unconstitutional regime.

If you are an Oklahoma legislator

The opinion is advisory; you can take action to either (a) repeal the Act outright (the 1989 path after the 1988 AG opinion struck down criminal justice districts), or (b) amend the Act to comply with constitutional requirements. To comply, the Act would need to:

• Limit the district to a defined geographic area smaller than the whole municipality, where the limited area enjoys special benefits (lower insurance premiums for fire suppression, for example) not enjoyed by other parts of the city.
• Tie the assessable services more tightly to property protection (excluding general policing and EMS).

The narrow PSO precedent is the model: a defined geographic area, fire-protection-only, in unincorporated territory.

If you are a fire chief or police chief

The opinion does not affect your existing operations or budget; it only forecloses a new revenue mechanism. Continue to fund through general operating budgets, special-purpose taxes (where authorized), and bonds. The constitutional rule does not prevent voters from approving general taxes for public safety; it only prevents disguising a tax as an "assessment."

Common questions

Q: What is a "local improvement" assessment?
A: A levy on real property within a defined district to pay for an improvement that specially and peculiarly benefits the assessed properties beyond what the public at large enjoys. Examples: paving streets fronting the assessed properties, sewer lines serving the district. Article X, § 7 authorizes them.

Q: Why isn't a public safety protection district a local improvement?
A: Because the Act covers the entire city ("all territory located within the municipality") and funds general government services that benefit everyone, not just property owners. Police protect people, EMS treat people, and citywide fire service has no limited-geography distinction.

Q: But fire protection has been upheld as a local improvement before.
A: Yes, in PSO (1983), but the fire protection district there was in unincorporated county territory, geographically limited, and the unique benefit was lower insurance premiums for property in the district. The Public Safety Protection District Act has none of those features.

Q: Why does the assessment look like a tax?
A: An assessment is supposed to be tied to a specific local benefit. When it covers an entire city for general government services, it is functionally identical to a property tax. The Constitution treats that as an end-run around the ad valorem tax limits in Article X.

Q: What happens to a city that already started a public safety protection district?
A: The opinion is advisory until a court rules, so the assessment is not automatically void. But a property owner challenge is likely to succeed, and any assessment collected may have to be refunded with interest. Cities are well-advised to halt and unwind.

Q: Can the Legislature fix this with a constitutional amendment?
A: Yes. A constitutional amendment to Article X (passed by the Legislature and approved by voters) could authorize this kind of assessment. The Article X, § 7 limitation is the constitutional ceiling on what can be assessed; the Constitution can be amended to raise the ceiling.

Q: How does this differ from a citywide sales tax for public safety?
A: A sales tax is a general tax, not an assessment for a local improvement, so the Article X, § 7 special-benefit rule does not apply. Sales taxes have their own constitutional and statutory framework (often requiring voter approval). Many Oklahoma cities use dedicated sales taxes for police, fire, and EMS without constitutional issues.

Q: What about the 1988 criminal justice districts?
A: The 1988 AG opinion struck them down for the same reason: jails and criminal justice services benefit the whole community, not specific properties. The Legislature repealed the criminal justice districts statute the next session.

Background and statutory framework

Oklahoma's local-improvement assessment doctrine traces to the early 1900s, with cases like Alley v. City of Muskogee (1916), Gilfillan v. City of Bartlesville (1915), and City of Sapulpa v. Land (1924). The doctrine distinguishes assessments from taxes:

• Taxes fund general government services and are based on ad valorem (or sales, income, etc.) and benefit the public at large.
• Assessments fund specific local improvements that specially benefit a limited class of property owners.

Article X, § 7 authorizes counties and municipalities, when authorized by the Legislature, to levy assessments for local improvements on property benefited. The "benefited" requirement is constitutional, not merely statutory: the Legislature cannot expand the meaning of "local improvement" beyond what the Constitution allows.

Oklahoma courts have applied the doctrine consistently:

• Bragdon (1928), Harrington (1934): improvements must be specially and peculiarly beneficial to the assessed properties.
• PSO (1983): rural fire protection districts can use assessments because the geographic limitation creates unique benefits.
• Armstrong (1948): sewer improvement districts can use assessments where the sewers serve specific property.

Florida, Michigan, and other states have developed similar doctrines and reached similar results: police and EMS cannot be funded by special assessments because they do not provide a special benefit to property.

The 1988 AG opinion (1988 OK AG 44) addressed the analogous question of "criminal justice districts." It concluded such districts were unconstitutional. The Legislature repealed the underlying statute in 1989. The 2023 opinion follows the same structure: the Public Safety Protection District Act is the modern analog, and the same constitutional flaw is fatal.

The opinion includes a footnote (footnote 7) noting that, per State ex rel. York v. Turpen, AG opinions concluding a statute is unconstitutional are advisory only. Cities and a court must take the next step.

Citations and references

Constitution and statutes:
- Okla. Const. art. X, § 7 (Local improvement assessments)
- 11 O.S. §§ 29-151–29-160 (Public Safety Protection District Act)

Cases:
- Public Serv. Co. v. Northwest Rogers Cnty. Fire Prot. Dist., 1983 OK 96, 675 P.2d 134 (rural fire protection districts upheld)
- Bragdon v. City of Muskogee, 1928 OK 659, 271 P. 1006 (special benefit requirement)
- Harrington v. City of Tulsa, 1934 OK 711, 39 P.2d 120 (special benefit doctrine)
- Gilfillan v. City of Bartlesville, 1915 OK 302, 148 P. 1012 (early local improvement case)
- City of N. Lauderdale v. SMM Properties, 825 So. 2d 343 (Fla. 2002) (EMS not a local improvement)
- Donnelly v. Marion Cnty., 851 So. 2d 256 (Fla. Dist. Ct. App. 2003) (police protection not a local improvement)
- State ex rel. York v. Turpen, 1984 OK 26, 681 P.2d 763 (AG opinions on unconstitutionality are advisory)

Prior AG opinion:
- 1988 OK AG 44 (criminal justice districts unconstitutional)

Source

• Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2023/ag-opinion-2023-10.html
• Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2023/ag_opinion_2023-10.pdf

Original opinion text

GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2023-10

The Honorable Ross Ford
Oklahoma House of Representatives, District 76
2300 N. Lincoln Blvd., Room 300
Oklahoma City, OK 73105

June 30, 2023

Dear Representative Ford:

This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:

Consistent with article X, section 7 of the Oklahoma Constitution, may a municipality levy an assessment for the purposes of the "operation and maintenance" of a "public safety protection district" under the Public Safety Protection District Act ("Act"), title 11, sections 29-151–29-160 of the Oklahoma Statutes?

I. SUMMARY

Oklahoma municipalities cannot levy assessments for local improvements pursuant to the Act without offending article X, section 7 of the Oklahoma Constitution. The creation of a public safety protection district benefits the entire community and the general public rather than benefiting specific property owners. Article X, section 7 of the Oklahoma Constitution requires local improvements to be special and peculiarly beneficial to specific property owners, or "localized." Because the district is beneficial to the community as a whole, an Oklahoma court would likely conclude that a public safety protection district contravenes article X, section 7.

II. BACKGROUND

A. The Public Safety Protection District Act

The Act authorizes "[t]he governing body of a municipality" to place a resolution calling for the creation of a "public safety protection district" before the voters of the initiating municipality at the next general election. A municipality wishing to implement a public safety protection district "shall" levy "an annual assessment no greater than five (5) mills" of the assessed real property's value within the district, with the proceeds derived therefrom to be used for the "operation and maintenance of the public safety protection district . . . ."

"Public safety protection" is defined as 1) law enforcement; 2) fire public safety protections; or 3) emergency medical services provided by the municipality, or any combination of these three. Further, under the Act, a public safety protection district "shall include all territory located within the municipality."

B. The Constitution

Under article X, section 7 of the Oklahoma Constitution, counties and municipalities, pursuant to legislative authorization, may "levy and collect assessments for local improvements upon property benefited thereby, homesteads included, without regard to a cash valuation."

III. DISCUSSION

A. Oklahoma law permits assessments only when a local improvement benefits a limited class of property owners as opposed to the community as a whole or the general public.

Although both taxes and assessments have their origin in article X, case law has distinguished between a tax and an assessment for local improvements as authorized by article X, section 7 of the Oklahoma Constitution. Notably, assessments levied pursuant to article X, section 7 must relate to local improvements and are based on the notion that the legislature may require property owners whose property receives a benefit from these local improvements to pay for the associated costs. The validity of an assessment hinges on whether the property of a limited class of taxpayer-owners has received a "special benefit" from a local improvement project.

B. Oklahoma Attorney General Opinion 1988-44 concluded that criminal justice districts benefited the community as a whole and were thus unconstitutional.

The 1988 Opinion analyzed the constitutionality of legislation authorizing the creation of "criminal justice districts," that could finance the construction and operation of jails. The 1988 Opinion concluded that "there is no rational way to draw a connection between the construction and operation of a jail and any tangible benefit to specific real estate." The criminal justice districts were essentially a backdoor ad valorem tax and therefore unconstitutional.

C. Local improvements must create a specific and peculiar benefit for a limited class of property owners.

Oklahoma courts have uniformly held that a local improvement must benefit the property on which the costs are assessed in a manner not enjoyed by property generally in the city. The term "local improvement" refers only to improvements which are specially or uniquely beneficial to the property affected and thus to its owners.

The Florida Supreme Court has employed a similar framework. In City of North Lauderdale v. SMM Properties, 825 So. 2d 343 (Fla. 2002), the Court found:

[T]here is no logical relationship between emergency medical services (the assessment, treatment, and transport of sick or injured people) and a special benefit to real property. Emergency medical services provide a personal benefit to individuals.

Other jurisdictions have analyzed law enforcement services. A Florida appellate court acknowledged that the "nature of law enforcement services . . . precludes funding by way of special assessment because such services, while undoubtedly beneficial to individuals, do not directly benefit the real property" burdened by a special assessment. Donnelly v. Marion Cnty., 851 So. 2d 256, 264 (Fla. Dist. Ct. App. 2003).

D. Fire protection districts are distinguishable as they provide tangible benefits to property owners such as lower insurance premiums and reduced destruction of property.

In PSO, the Oklahoma Supreme Court determined that the assessment levied for the purposes of funding fire protection districts constituted a local improvement. The Court noted that, although the local improvement did not directly and tangibly manifest on the district's real property, there was a uniquely identifiable benefit to the real property in the reduction of insurance premiums for real property that fell within the district's boundaries.

Even so, the PSO court centered its conclusion on that the enabling statute's "authoriz[ation] [of] fire protection to be established exclusively and specifically for the benefit of property within a limited geographic area . . . ." Such is not the case for public safety protection districts. Here, the Act plainly includes the entirety of the initiating municipality. Such an outcome would contradict Oklahoma case law defining the contours of a "local improvement" in the Oklahoma Constitution's article X, section 7.

It is, therefore, the official Opinion of the Attorney General that:

A municipality may not levy an assessment for the purposes of "operation and maintenance" of a "public safety protection district" under the Public Safety Protection District Act, consistent with and without offending article 10, section 7 of the Oklahoma Constitution.

GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA

ALEX PEDRAZA
ASSISTANT ATTORNEY GENERAL

[Footnote: Opinions finding a statute unconstitutional "should be considered advisory only, and thus not binding until finally so determined by an action in the District Court of this state." State ex rel. York v. Turpen, 1984 OK 26, ¶ 12, 681 P.2d 763, 767. Consequently, this opinion is deemed advisory only.]