Opinion No. (2004)

Dear Director McVey,

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

Does the current City-County Library Act, 65 O.S. 2001, §§ 151-161, permit a city-county library system, which provides library service to residents in adjacent counties, to include those counties in its library system and receive ad valorem tax revenues from those counties' residents as it does from its own residents?

¶ 1 By statutory definition, a "public library" is a "library or library system that is freely open to all persons under identical conditions, and which is supported in whole or in part by public funds." 65 O.S. 2001, § 1-104[65-1-104](b). A "library system" is "a unified public library organization under single direction in an area of not less than one county." Id. § 1-104(a). The Oklahoma Statutes provide multiple ways in which public libraries and library systems may be established. "County libraries" are public libraries "established, supported, and maintained by county taxation." Id. § 1-104(l). "Municipal libraries" are "established, supported, and maintained through taxation by a city or town" whose library boards are appointed by municipal authorities. Id. § 1-104(m).

¶ 2 Library systems may be classified as either "metropolitan," (in a county having a city with at least 250,000 population); "multicounty," (having a library district composed of two or more counties); "city-county," (in a county with a population of at least 100,000); or "rural single county" (in a county with a population less than 100,000 which is supported by ad valorem taxation). Id. § 1-104(c), (d), (n), (o). Under these statutes, multiple counties may join together to form a multicounty library system, but no such system exists in your situation. Rather, you ask specifically about a city-county library system's authority to receive ad valorem tax revenues from persons who use that library system's services, but who reside in other counties, in effect incorporating parts of those counties into the city-county system. You indicate that most of these library users live in cities immediately adjacent to the county in which the city-county library system operates.

¶ 3 Under the City-County Library Act, 65 O.S. 2001, §§151-161, any county may, by contract with the governing body of a city, establish a city-county library system. Id. § 153. Both the county and the city agree upon the monetary contributions each will make to fund the library system, and deposit the monies into a common fund. Id. § 157. The library system is governed by a commission, which administers the funds contributed by the county and city. Id. §§ 152, 158(i).

¶ 4 To fund its share of the cost of the city-county library system, a county may use ad valorem tax receipts. Id. § 157. The Oklahoma Constitution, Article 10, Section 10A, provides that counties may, upon voter approval, levy special annual recurring ad valorem taxes to create, develop, operate and maintain public libraries and library services as follows:

To provide funds for the purpose of establishing and maintaining or aiding in establishing and maintaining public libraries and library services, a special annual recurring ad valorem tax shall be levied when such levy is approved by a majority vote of the qualified electors of the county voting on the question at an election called for that purpose by the Board of County Commissioners, either upon its own initiative or upon petition initiated by not less than ten percent (10%) of the qualified electors of the county based on the total number of votes cast at the last general election for the county office receiving the highest number of votes at such an election.

Except as provided in this section, in a county having less than one hundred fifty thousand (150,000) population, according to the most recent Federal Decennial Census, the special annual recurring ad valorem tax levy shall be not less than one (1) mill nor more than four (4) mills on the dollar of the assessed valuation of all taxable property in the county. In a county having more than one hundred fifty thousand (150,000) population or in a multicounty library system with a county having more than one hundred fifty thousand (150,000) population, according to the most recent Federal Decennial Census, the special annual recurring ad valorem tax levy for each such county shall be not less than one (1) mill nor more than six (6) mill[s] on the dollar of the assessed valuation of all taxable property in the county.

This special levy shall be in addition to all other levies and when authorized shall be made each fiscal year thereafter until such authority shall be cancelled by a majority vote of the qualified electors of the county voting on the question at an election called for that purpose by the Board of County Commissioners upon petition initiated by not less than twenty percent (20%) of the qualified electors of the county based on the total numbers of votes cast at the last general election for the county office receiving the highest number of votes at such an election.

Id.

¶ 5 As stated above, the amount of the tax varies from one to six mills, depending on county population. Id. These special levies are made each fiscal year and may be cancelled only with voter approval. Id. Section 10A further provides:

Nothing herein shall prohibit other levies for public libraries and library services or the use of other public funds for such purposes. All expenditures of the proceeds of such levies shall be made in accordance with laws heretofore or hereafter enacted concerning such libraries and library services. The provisions hereof shall be self-executing.

Id.

¶ 6 You have indicated that neither of the counties adjacent to the city-county library system has created its own library system, leading the residents in those adjacent counties to cross county boundaries to avail themselves of the city-county library system's services. The city-county library system, however, receives no ad valorem tax revenue from these non-county-resident library users; nor, under the constitutional provision cited above, is any allowance made for one county to tax the residents of another county for such use.1 Our research has not revealed any other constitutional or statutory provision which would allow such taxation.

¶ 7 The Oklahoma Statutes do provide, however, another mechanism which may be used in your situation. Although Article10, Section 10A of the Oklahoma Constitution specifically addresses county-wide taxation for library support, it also provides, "Nothing herein shall prohibit other levies for public libraries and library services or the use of other public funds for such purposes." Id. Thus, "other levies" may be raised and "other public funds" may be used by public entities other than counties to pay for library services, as long as such expenditures comply with other laws. ("All expenditures of the proceeds of such [other] levies shall be made in accordance with laws heretofore or hereafter enacted concerning such libraries and library services.") Id.

¶ 8 You indicate that the majority of non-county-resident users of the city-county library system live in cities adjacent to the county in which the library system operates. Under Oklahoma law, municipalities may use their public funds to join a city-county library system, even if that system is in another county. The City-County Library Act, 65 O.S. 2001, § 159[65-159], allows municipalities in any county to be incorporated into, via contract, a city-county library system, as follows:

The governing body of any other city or town in any county2 is authorized to contract with the city-county library commission, subject to the approval of the governing body of the city and the board of county commissioners, to bring such other city or town into the city-county library system, upon such terms as may be mutually agreed upon, and . . . may include in its annual budget appropriations for participation in the city-county library system, and shall pay over to the city-county library system funds so appropriated.

Id. (emphasis added) (footnote added). As stated above, such a contract requires the approval of both the municipal governing body and the county commissioners, as well as the commission which operates the city-county library system. Funding such a contract may be accomplished with a municipal tax levy. Such levies are specifically provided for in the Oklahoma Library Code. See 65 O.S. 2001, §§ 4-101[65-4-101], 4-107. Section 4-101 provides, "Special levies of any and all taxes authorized to be levied by counties, cities and towns under this and other Oklahoma Statutes as amended and the Oklahoma Constitution as amended are hereby authorized to be levied for support of library systems." Id. Section 4-107 further provides:

Library systems are hereby authorized and empowered to receive and allocate funds for establishment, development and maintenance of library facilities and services through special library tax levies as hereinafter provided and other funds, including appropriations from city, town and county general funds, state and federal grants-in-aid, and other public and private funds. All such funds received and appropriated may be used for library services throughout the library district.

(a) The governing boards of cities, towns, counties, and library systems established by vote of the people, as authorized, may submit to a vote of the people special tax levies of any tax or taxes which are or may be authorized for levying in and by cities, towns, counties and library system districts.

Id. (emphasis added). In your situation, the governing boards of the municipalities in counties which adjoin the county in which the city-county library system operates may call an election to vote on a special levy tax to fund a contract arrangement with the library system as provided in 65 O.S. 2001,§ 159[65-159]. ¶ 9 It is, therefore, the official Opinion of the AttorneyGeneral that:

1. The current City-County Library Act, 65 O.S. Supp. 2003, §§ 151-161, does not permit a city-county library system, which provides library service to residents in adjacent counties, to include those counties in its library system and receive ad valorem tax revenues from those counties' residents as it does from its own residents.

2. The City-County Library Act, 65 O.S. 2001, § 159, allows a municipality to join, by contract, a city-county library system in another county. Such a contract may be funded by a special municipal tax levy as authorized by the municipality's voters under the Oklahoma Library Code. See 65 O.S. 2001, §§ 4-101, 4-107.

W.A. DREW EDMONDSON Attorney General of Oklahoma

DEBRA SCHWARTZ Assistant Attorney General

1 Although Article 10, Section 10A provides that multicounty library systems (composed of two or more counties) having more than 150,000 population may enact special annual recurring ad valorem tax levies, no qualifying multicounty library system exists in your situation.

2 Before 1992, this ability to contract was restricted to cities or towns within the same county.