Can a Mississippi city wipe out a resident's past garbage bill for the months when the city had taken away their garbage can?

Plain-English summary

A City of Petal resident owed back garbage charges. Some of the back charges accumulated during a stretch when the city had removed her garbage can for nonpayment. She argued she shouldn't owe for service she didn't receive. The city attorney asked the AG whether the city could forgive those charges.

The AG drew a careful distinction.

If you got the service, the city can't waive your bill. Article 4, § 100 of the Mississippi Constitution prohibits the legislature, levee boards, and any county, city, or town from remitting, releasing, postponing, or diminishing any obligation owed to them. The only ways to extinguish such an obligation are payment to the proper treasury, exchange for face value, or a general-law-authorized compromise of doubtful claims. § 21-27-27 also expressly prohibits Mississippi municipalities from providing free utilities to private persons. The AG opinion line (Woodard (2009), Glidewell (2009)) consistently holds that a city cannot reduce or forgive a utility bill where the customer received the benefit of the service.

If you didn't get the service, you don't owe a debt. The other side of the analysis is that there is no debt to forgive in the first place. If the city removed the resident's garbage can and stopped collecting her garbage, there was no garbage service provided, and therefore no charge accrued. Cancelling the charge for that period is not "forgiveness" of a debt; it is correction of an erroneous billing.

The AG's bottom line: the city has to make a factual determination of whether the resident actually received the garbage service during the disputed period. If she did, the bill stands. If she didn't, the city must cancel the charges for that period because no debt accrued.

The opinion is on prospective questions only. The AG cannot validate or invalidate past actions (citing § 7-5-25 and the long-standing Magee (2008) and St. Pé (2019) opinions). The opinion does not bless the city's existing billing decisions; it tells the city how to handle the question going forward.

Questions two and three (about "unforeseen circumstances" exceptions to the donation prohibition) became moot once the AG resolved question one on the simpler "no service, no debt" theory.

What this means for you

If you are a Mississippi city utility manager or municipal attorney handling billing disputes

Under this opinion, the question that controls is whether the customer received the benefit of the service. If the customer received garbage service, the AG says the city may not reduce or forgive the bill: Article 4, § 100 of the Mississippi Constitution bars a city from remitting, releasing, postponing, or diminishing an obligation owed to it, and § 21-27-27 prohibits providing free utilities to a private person (Woodard (2009); Glidewell (2009)). If the customer did not receive service for a period, no debt accrued for that period, so cancelling the charge is a billing correction rather than a forgiveness. The opinion says the city has to make that factual determination of whether the service was received.

If you are a Mississippi resident disputing a utility bill

Under this opinion, the standard is whether you received the benefit of the service. If you did not, because the city removed your can and did not collect your garbage, then under the AG's analysis you do not owe a debt for that period and the city should cancel the charge after making a factual determination. If you did receive the service, the city cannot forgive the bill even if you are in financial distress, because that would be remitting an obligation the constitution protects.

If you are a mayor or city council member voting on a billing waiver request

The opinion draws a clean line. If service was provided, the city has no authority to waive the bill (§ 100; § 21-27-27). If service was not provided for a period, there is no debt for that period to begin with, and cancelling the charge is correcting an erroneous bill, not forgiving a debt. The governing authority makes the factual determination of whether the service was received. The opinion does not authorize forgiving a legitimate utility debt as a hardship measure.

Common questions

Q: If I got the garbage service, can the city forgive my past-due bill because I'm struggling?
A: No. The AG says a city may not reduce or forgive a utility bill of a customer who received the benefit of the service; § 100 of the Constitution and § 21-27-27 stand in the way.

Q: The city took my can and stopped picking up my garbage. Do I still owe for that period?
A: Under this opinion, if the city makes a factual determination that you did not receive the benefit of the garbage service for that period, you do not owe a charge for it, and the city should cancel the charge (and, because no charge accrued, the associated interest and penalties for that period).

Q: Who decides whether service was actually provided?
A: The city. The AG can opine only on prospective questions of law and cannot make the factual determination itself (§ 7-5-25; St. Pé (2019)). It also cannot validate or invalidate the city's past billing (Magee (2008)); it addresses how to handle the question going forward.

Q: What happened to the questions about "unforeseen circumstances"?
A: The AG found questions two and three moot once it resolved the first question on the simpler ground that no debt accrues for a period in which no service was received.

Q: Does the same analysis apply to other municipal utilities?
A: The opinion concerns garbage charges, but its reasoning rests on § 100's general bar on remitting obligations owed to a city and on § 21-27-27's prohibition on free utilities. The opinion does not separately analyze water or sewer billing.

Background and statutory framework

§ 21-27-11 defines a municipal utility "system." The AG notes that this definition "includes a garbage disposal system."

§ 21-27-27 expressly prohibits municipalities from providing free utilities to any private person. The statutory hook for the constitutional analysis.

Article 4, § 100 of the Mississippi Constitution: "No obligation or liability of any person, association, or corporation held or owned by this state, or levee board, or any county, city, or town thereof, shall ever be remitted, released or postponed, or in any way diminished by the Legislature, nor shall such liability or obligation be extinguished except by payment thereof into the proper treasury; nor shall such liability or obligation be exchanged or transferred except upon payment of its face value; but this shall not be construed to prevent the Legislature from providing by general law for the compromise of doubtful claims."

The AG opinion line: Woodard (2009) (board of supervisors cannot forgive delinquent garbage fees where there is no dispute as to garbage services provided to the address); Glidewell (2009) (municipality cannot reduce or forgive a utility bill of a customer who has received benefits of the service); Eaton (2023) (no service, no debt; the cancellation is a billing correction, not a debt forgiveness).

§ 7-5-25 limits the AG to prospective questions of state law and excludes opinions that validate or invalidate past actions.

Citations

• Miss. Code Ann. § 7-5-25 (limits on AG opinion authority)
• Miss. Code Ann. § 21-27-11 (definition of municipal utility "system")
• Miss. Code Ann. § 21-27-27 (prohibition on free utilities to private persons)
• Miss. Const. Art. 4, § 100 (prohibition on remission of obligations owed to public entities)
• MS AG Op., Glidewell (Aug. 14, 2009) (city cannot forgive utility bill where customer received service)
• MS AG Op., Magee (Aug. 29, 2008) (AG opinions cannot validate or invalidate past actions)
• MS AG Op., St. Pé (Sept. 6, 2019) (AG opinions cannot make factual determinations)
• MS AG Op., Woodard (Aug. 21, 2009) (board of supervisors cannot forgive delinquent garbage fees)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/01/R.Eaton-January-3-2023-Forgiveness-of-Past-Due-Garbage-Charges.pdf

Original opinion text

January 3, 2023

Rocky W. Eaton, Esq.
Attorney, City of Petal
Post Office Box 564
Petal, Mississippi 39465
Re:

Forgiveness of Past Due Garbage Charges

Dear Mr. Eaton:
The Office of the Attorney General has received your request for an official opinion.
Background
In your request, you state that one of the citizens of the City of Petal ("the City") owes the City for
past due garbage charges. Some of these past due charges were incurred during a period of time
when the City had removed the citizen's City-supplied garbage can due to non-payment of charges.
The citizen now requests that the City forgive the garbage charges on her account, along with
associated interest and penalty charges, for the time period when the City had removed the garbage
can, asserting that she did not receive the service for which she had been charged and that the City
incorrectly charged her during the subject time period.
Questions Presented

1. Assuming that the City did not pick up garbage from the citizen's residence during the time
   that the garbage can had been removed from the residence, may the City forgive the charges
   on the citizen's account, along with associated interest and penalty charges, for the time
   period when the City had removed the garbage can, upon a finding that the citizen did not
   receive the benefits of the utility service?
2. If the answer to question one is "no," may the City forgive the charges upon an additional
   finding that the removal of the garbage can caused an unreasonable increase in charges
   owed to the City because of unforeseen circumstances?
3. If the answer to question two is "yes," would the removal of the garbage can by the City
   equate to an unforeseen circumstance when the citizen received billing statements from the
   City indicating a past due amount?
   Brief Response
4. If the City makes a factual determination that the citizen did not receive the benefit of the
   garbage service for a specific period of time, then the citizen does not owe any payment
   for a service that the citizen did not receive during that time period. Therefore, the City
   could cancel the charge for the time period when the citizen was not receiving the benefit
   of the service.
5. Due to our response to your first question, your second question is moot.
6. Due to our response to the previous questions, your third question is moot.
   Applicable Law and Discussion
   Pursuant to Section 7-5-25, this office may only opine on prospective questions of law. An official
   opinion can neither validate nor invalidate past action. MS AG Op., Magee at 1 (Aug. 29, 2008).
   Furthermore, opinions of this office cannot be issued which require our office to make a factual
   determination. MS AG Op., St. Pé at 1 (Sept. 6, 2019). We offer no opinion on the validity of
   any past garbage charges in question and offer the following for prospective purposes only.
   The definition of a municipal utility "system" includes a garbage disposal system. Miss. Code
   Ann. § 21-27-11. Section 21-27-27, however, expressly prohibits a municipality from providing
   free utilities to any private person. Additionally, Section 100 of the Mississippi Constitution
   provides:
   No obligation or liability of any person, association, or corporation held or owned
   by this state, or levee board, or any county, city, or town thereof, shall ever be
   remitted, released or postponed, or in any way diminished by the Legislature, nor
   shall such liability or obligation be extinguished except by payment thereof into the
   proper treasury; nor shall such liability or obligation be exchanged or transferred
   except upon payment of its face value; but this shall not be construed to prevent the
   Legislature from providing by general law for the compromise of doubtful claims.
   This office has previously opined that a board of supervisors has no authority pursuant to Article
   4, Section 100 of the Mississippi Constitution to forgive delinquent garbage fees where there is no
   dispute as to garbage services provided to the address. MS AG Op., Woodard at 1 (Aug. 21,
   2009). "With respect to whether a debt is owed to the municipality, we have consistently opined
   that a municipality may not reduce or forgive a utility bill of a customer when the customer has
   received the benefits of the utility service." MS AG Op., Glidewell at 1 (Aug. 14, 2009).
   In your request, however, you note that the citizen owed the City for past due garbage charges, but
   some of these charges were incurred during a period of time when the City had removed the
   citizen's garbage can, and the citizen purportedly did not receive garbage pickup. If the citizen did
   not receive the benefit of the garbage service during the time the City removed the garbage can,
   then the citizen does not owe a debt for an unpaid charge. The City would need to make a factual
   determination as to whether the citizen received the benefit of the service; if the citizen did not,
   then the citizen does not owe any charges for that time period. The City would need to cancel the
   portion of the charges incurred when the citizen did not receive the benefit of the garbage service.
   Due to our response to your first question, your second question is moot.
   Consequently, based on our responses to your first two questions, your third question is also moot.
   If this office may be of any further assistance to you, please do not hesitate to contact us.
   Sincerely,
   LYNN FITCH, ATTORNEY GENERAL
   By:

/s/ Gregory Alston
Gregory Alston
Special Assistant Attorney General