Attorney General of Arkansas — Opinion
Opinion Delivered November 17, 2006
MIKE BEEBE, Attorney General
The Honorable Bob Adams State Representative 320 Grant 4653 Sheridan, AR 72150-8646
Dear Representative Adams:
I am writing in response to your request for my opinion on the following questions:
1. Does the excess funding held by the Hot Spring County Solid Waste Authority (“SWA”) belong only to Hot Spring County or should other SWA members also receive a portion of the excess based upon some formula such as their pro-rated share of the payment of total funds in years as compared to the payment by Hot Springs County?
2. Do other contributors also have any right of return of payment? If so, under what formula would the return of their excess contribution be determined?
3. If a municipal member of the SWA decided to withdraw from membership, what rights would that member have to the funds and assets of the SWA?
4. If a withdrawing member is entitled to a portion of the assets, and an agreement cannot be reached, what process would be used to allocate assets?
5. If a withdrawing member has the right to obtain part of the assets, what input, if any, would the SWA board have on the assets to be distributed to the withdrawing member?
6. If both municipal members withdrew, could the SWA continue to operate as a separate “public body and body corporate and politic” as a county board or commission?
I must respectfully decline to answer your questions, which raise issues that were the subject of litigation in Hot Spring County et al. v. Hot Spring County Solid Waste Authority, Hot Spring County Circuit Case No. CV-2003-279-2 and Hot Spring County Solid Waste Authority v. Hot Spring County et al., CA 06-38 (September 27, 2006). It is my understanding that a petition for review is currently pending in the Arkansas Supreme Court as Case No. 06-1192. In order to avoid encroaching upon exclusively judicial or legislative prerogatives, it has long been the policy of this executive-branch office to avoid rendering opinions on matters that are pending in the courts.
I appreciate that the SWA member municipalities did not participate as parties in the above referenced litigation. However, the court did rule as to the appropriate disposition of the “excess” funds referenced in your request, and I am neither authorized nor inclined to look behind the findings made by a trier of fact in its judicial capacity. Local counsel for the SWA member municipalities would be best situated to render advice as to what recourse, if any, exists at this point.
I regret that I could not be of assistance in this matter.
Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.
MIKE BEEBE Attorney General