Dear Rep. Tucker:
You requested the opinion of this office concerning the Budget Stabilization Fund, otherwise known as the Rainy Day Fund (the "Fund"). The Fund is created in Article VII, Section 10.3 of the Constitution. Your specific question is whether, under any circumstances, the Fund can be used in two successive budget years.
The monies in the Fund are only available for appropriation or use as described in Subsection (C), in pertinent part as follows:
"(C) The money in the fund shall not be available for appropriation or use except under the following conditions:
(1) If the official forecast of recurring money for the next fiscal year is less than the official forecast of recurring money for the current fiscal year, the difference, not to exceed one-third of the fund shall be incorporated into the next year's official forecast only after the consent of two-thirds of the elected members of each house of the legislature. If the legislature is not in session, the two-thirds requirement may be satisfied upon obtaining the written consent of two-thirds of the elected members of each house of the legislature in a manner provided by law.
(2) If a deficit for the current fiscal year is projected due to a decrease in the official forecast, an amount equal to one-third of the fund not to exceed the projected deficit may be appropriated after the consent of two-thirds of the elected members of each house of the legislature. Between sessions of the legislature the appropriation may be made only after the written consent of two-thirds of the elected members of each house of the legislature.
(3) In no event shall the amount included in the official forecast for the next fiscal year plus the amount appropriated in the current fiscal year exceed one-third of the fund balance at the beginning of the current fiscal year. (Emphasis added).
The Constitution, with the approval of two-thirds of the elected members of each house of the legislature, allows one-third of the Fund to be "tapped" or used in two instances: (1) if the official forecast of recurring money for the next fiscal year is less than the official forecast of recurring money for the current fiscal year; or (2) if a deficit for the current fiscal year is projected due to a decrease in the official forecast. In either instance, the amount included in the official forecast for the next fiscal year plus the amount appropriated in the current fiscal year cannot exceed one-third of the Fund balance at the beginning of the current fiscal year. There is no prohibition against the Fund being used more than once in the same calendar or fiscal year or in two consecutive calendar or fiscal years. Provided that the situations in Subsections (C)(1) or (2) exist and the limitation in Subsection (C)(3) is not exceeded, the legislature can use the Fund multiple times per year and/or in consecutive years.
When the ballots were sent to the legislature in early November, the Fund had an adjusted July 1, 2002 balance of $263,139,418.831. One-third of that amount is $87,713,139.61. The ballot which was sent to all members of the legislature to determine whether or not to use the Fund contained the following proposition:
"To make available for appropriation from the Budget Stabilization Fund the sum of Eighty-six million, three hundred eighty-seven thousand and NO/100 ($86,387,000) Dollars, not to exceed one-third (1/3) of the balance of the Budget Stabilization Fund as certified by the Revenue Estimating Conference pursuant to R.S. 39:95, due to the Revenue Estimating Conference, at their meeting of October 10, 2002, having reduced the revenue forecast for the current fiscal year causing a projected deficit of $86,387,000 as recognized by the Joint Legislative Committee on the Budget at their meeting of October 18, 2002."
The ballot was approved by a two-thirds vote of the elected members of each house of the legislature. After the ballot was submitted to the members of the legislature, there was an additional adjustment to the Fund increasing it by $3,034,064.52. Should the conditions in Subsections (C)(1) or (2) occur again, the legislature could tap the Fund for an additional amount this fiscal year of approximately $2,337,494.452.
With regards to the test in Subsection (C)(3), as of the date of this opinion (December, 2002), the "current fiscal year" is FY03 and the "next fiscal year" is FY04. On July 1, 2003, the "current fiscal year" will be FY04 and the "next fiscal year" will be FY05. On July 1, 2003, if the conditions in Subsections (C)(1) or (2) occur, the legislature, with the appropriate approvals, could tap up to the one-third of the Fund. Assuming hypothetically that no additional deposits are made to the Fund and no additional withdrawals are made from the Fund between now and July 1, 2003, the Fund balance on July 1, 2003 would be $179,786,483.353, of which one-third, or $59,928,827.78, would be available for use.
We trust that the foregoing addresses your questions, and we remain
Yours very truly,
RICHARD P. IEYOUB Attorney General
BY: ________________________________ MARTHA S. HESS Assistant Attorney General
RPI/MSH
DATE RELEASED: December 27, 2002
1 Information derived from ISIS.
2 One-third of adjusted FY02 fund balance of $266,173,483.35 equals $88,724,494.45. $88,724,494.45 minus $86,387,000 equals $2,337,494.45.
3 $266,173,483.35 minus $86,387,000.