The Honorable Shane Broadway State Senator 201 Southeast Second Street Bryant, Arkansas 72022
Dear Senator Broadway:
I am writing in response to your request for an opinion on the following on behalf of a Benton alderman:
Since 75% of state turn back money goes to the street fund, can money from that fund be used to pay for 75% of the cost of an interim census when it is expected to increase the amount of funding to the street fund?
Is street fund money eligible to pay for the cost of a full time traffic control technician, including repair parts and supplies needed for maintenance of traffic signaling devices?
RESPONSE
In my opinion, the answer to your first question is "no" under the assumptions noted below because municipal aid fund revenue derived from special revenue of the highway department may only be used for "maintenance, construction, and reconstruction" of streets, A.C.A. §27-70-207(b)(1)(A) (Supp. 2003), and a census does not fall under any of those categories. With respect to your second question, in my opinion the answer is "yes" to the extent that the proposed employee's work and equipment will constitute the "maintenance, construction, and reconstruction" of city streets.
The term "state turn back money" commonly refers to either the County Aid Fund, A.C.A. § 19-5-602 (Supp. 2003), or the Municipal Aid Fund, A.C.A. § 19-5-601 (Repl. 1998). In the context of your request on behalf of a Benton alderman, I must conclude that this question pertains to the Municipal Aid Fund.
Regarding the Municipal Aid Fund, the Arkansas Code provides in pertinent part:
(a) There is established on the books of the Treasurer of State, Auditor of State, and the Chief Fiscal Officer of the State a fund to be known as the Municipal Aid Fund.
This fund shall consist of:
(1) Such general revenues as may be made available to the fund by the Revenue Stabilization Law, § 19-5-101 et seq.; and
(2) Such special revenues derived from highway user imposts, known as highway revenues, as may be made available to the fund for the benefit of municipalities by the Arkansas Highway Revenue Distribution Law, § 27-70-201 et seq[.];
* * *
(4)(B) Of the moneys so received by the respective cities and incorporated towns, the general revenues shall be used for general purposes of municipal government, and the special revenues derived from highway revenues shall be used as provided by the Arkansas Highway Revenue Distribution Law, § 27-70-201 et seq.
A.C.A. § 19-5-601 (Repl. 1998). The Arkansas Code specifically apportions fifteen percent (15%) of the highway special revenues collected to the Municipal Aid Fund. A.C.A. § 27-70-206(3) (Repl. 1998). The Arkansas Highway Revenue Distribution Law provides in pertinent part:
(b)(1)(A) All highway revenues transferred to the Municipal Aid Fund under the provisions of this subchapter shall be paid over by the Treasurer of State to the treasurers of the respective cities of the first class, cities of the second class, and incorporated towns for credit to the street fund, there to be used for the maintenance, construction, and reconstruction of streets which are not continuous of state highways.
A.C.A. § 27-70-207 (Supp. 2003) (emphasis added).
There is no reference to 75% of the distributed revenue of the Municipal Aid Fund in the Arkansas Code. I assume that the three-quarters amount is a local estimation of the proportion of the municipal aid fund revenue received derived from the special revenue of the highway department.1 Furthermore, I am assuming that by "street fund" you are referring to a local fund established to receive the Municipal Aid Fund revenue derived from the special revenue of the highway department.
A court will first read a statute for its plain and ordinary meaning.Sluder v. Steak Ale of Little Rock, Inc., ___ Ark. ___, S.W.3d ___ (Mar. 31, 2005). Only if the plain and ordinary meaning is ambiguous will a court resort to further statutory construction. Id. When reading these statutes, it is clear that any money paid to a municipality through the Municipal Aid Fund that originated in the special revenues of the highway department may only be spent on the "maintenance, construction, or reconstruction" of city streets. A.C.A. § 27-70-207. Your question, then, is whether either a special census or a traffic control technician would fall under the "maintenance, construction, or reconstruction" of city streets.
Plainly, a census is not maintenance, construction, or reconstruction of a street. The plain and ordinary language of A.C.A. § 27-70-207 does not contemplate expending street fund revenues to count the population of the municipality.
Street fund revenue could be used to pay for a traffic control technician, including the repair parts for traffic signaling devices, in my opinion. One of my predecessors opined that pursuant to similar statutory language, the county road fund could be used in a similar manner. Op. Att'y Gen. 96-379. When asked whether the county road fund could pay for the salary of a part-time county employee who "spen[t] approximately half of her time working as a `dispatch' for the road department, doing cost accounting, inventory control, maintenance scheduling, and coordinating road work assignment," my predecessor opined that the county road fund in question could pay for that portion of the employee's salary that constituted "the opening, construction, and repair of roads in the road districts in the county" under A.C.A. § 26-79-105, the applicable statute. Op. Att'y Gen. 96-379. I find this analysis persuasive in responding to your second question. In so far as the work and materials of the traffic control technician are considered "maintenance" of a street in the municipality, it is my opinion that revenue in the local street fund could pay for the technician's salary as well as the repair parts and supplies.
Assistant Attorney General Joel DiPippa prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General
MB:JMD/cyh
1 The General Assembly appropriated $27,506,526.00 of general revenue to the Municipal Aid Fund for the 2005-06 fiscal year. A.C.A. § 19-5-402 as amended by Act 2316 of 2005. The highway department collected special revenue totaling $573,365,079.35. Arkansas Bureau of Legislative Research, Arkansas Revenue Report (June 2005); available at http://www.arkleg.state.ar.us/data/revrepor/revrpt.pdf (last visited July 29, 2005). Fifteen percent (15%) of the special revenue of the Highway Department is $86,004,761.92. When combined with the general fund appropriation, the Municipal Aid Fund has approximately $113,511,287.92 for the 2005-2006 fiscal year. The special revenue of the highway department, $86,004,761.92, totals 75.77% of the Municipal Aid Fund as computed above.