FAQs from The Alabama Municipal Journal

2012 FAQs - Changing Salaries | Firearm Disposal | Impound Vehicle | Contracts With Other Municipalities | Municipal Class

MUNICIPAL CLASS: May 2012)
Why are municipalities divided into classes and will the class of a municipality ever change?

Section 104(18) of the Alabama Constitution prohibits the Legislature from creating or amending by local legislation the charter powers of municipal corporations. As a result Amendment 397 of the Alabama Constitution was passed authorizing the Legislature to establish no more than eight classes of municipalities based on population according to any designated federal decennial census. This Amendment also allows legislation to be passed which affects one or more of such classes and provides that any such legislation shall be deemed to be general laws rather than local laws. Sections 11-40-12 and 11-40-13 of the Code of Alabama, established the eight classes of municipalities based on the populations in the 1970 federal decennial census, as follows:

Class 1 – Cities of 300,000 inhabitants or more
Class 2 – Cities of not less than 175,000 and not more than 299,999 inhabitants
Class 3 – Cities of not less than 100,000 and not more than 174,999 inhabitants
Class 4 – Cities or not less than 50,000 and not more than 99,999 inhabitants
Class 5 – Cities of not less than 25,000 and not more than 49,999 inhabitants
Class 6 – Cities of not less than 12,000 and not more than 24,999 inhabitants
Class 7 – Cities of not less than 6,000 and not more than 11,999 inhabitants
Class 8 – Cities and towns with a population of 5,999 or less.

The class of a municipality will not change if its population increases or decreases since the population figures refer to the 1970 federal census. Any municipality incorporated after June 28, 1979, will be placed in one of the above classes according to the population of the municipality at the time of its incorporation

CONTRACTS WITH OTHER MUNICIPALITIES: (April 2012)
Are municipalities authorized to enter into contracts with other municipalities or counties for the joint exercise of powers or services?

Except as otherwise provided or prohibited by law, any county or municipality of the State of Alabama may enter into a written contract with one or more counties or municipalities for the joint exercise of any power or service that state or local law authorizes each of the contracting entities to exercise individually. The joint contract may provide for the power or service to be exercised by one or more entities on behalf of the others or jointly by the entities. Section 11-102-1, Code of Alabama 1975.

Any such contract must be in writing and cannot exceed three years. See Sections 11-102-2 and 11-102-4, Code of Alabama 1975. Approval of the contract by a municipal governing body must be by adoption of an ordinance of general and permanent operation. Section 11-102-3, Code of Alabama 1975. The joint exercise authority provided for in Chapter 102, Title 11 of the Code of Alabama, does not include the power to tax or levy taxes, the power to zone real property, the power to exercise planning authority, or any contract for the collection, transportation, storage or disposal of solid waste. See Sections 11-102-5 and 11-102-8, Code of Alabama 1975.

Except as otherwise provided by law and as limited by the contract, any entity which contracts to perform or exercise any service or power pursuant to Chapter 102, Title 11 of the Code of Alabama, shall have the full power and authority to act within the jurisdiction of all contracting entities to the extent necessary to carry out the purposes of the contract. Each municipality or county which is a party to the contract must adopt all ordinances, resolutions or policies necessary to authorize the other contracting entities to carry out their contractual duties and responsibilities. Section 11-102-7, Code of Alabama 1975.

IMPOUND VEHICLE: (March 2012)
Is there authority for a municipality to pass an ordinance to impound vehicles when a driver has no license?

If you have an ordinance that has adopted the state code by reference, then impoundment is authorized for violations of Section 32-6-19, Code of Alabama 1975 and no further ordinance is necessary. This statute covers drivers with a license revoked for any reason or a license suspended for DUI related reasons. Section 32-6-19 provides that: "The law enforcement officer making the impoundment shall direct an approved towing service to tow the vehicle to the garage of the towing service, storage lot, or other place of safety and maintain custody and control of the vehicle until the registered owner or authorized agent of the registered owner claims the vehicle by paying all reasonable and customary towing and storage fees for the services of the towing company. The vehicle shall then be released to the registered owner or an agent of the owner."

Section 32-5A-139, Code of Alabama, sets out additional authority for a law enforcement officer to tow a vehicle from a public highway when it is obstructing the flow of traffic. Based on what is called the community caretaking function, "The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge." Cannon v. State, 601 So.2d 1112 (Ala.Crim.App.1992), certiorari denied.

Under the Safe Streets Act, Section 32-5A-205, Code of Alabama 1975, authorized enactment of ordinances to provide for administrative sanctions involving impoundment of vehicles used in the commission of the offense of driving with a suspended or revoked license or without a license. However, the Safe Streets Act (Act 95-580) was repealed by Act 98-470, § 2, effective May 1, 1998. Therefore it would appear that any such ordinances passed under this authority would no longer be valid.

FIREARM DISPOSAL: (February 2012)
What is the process for disposition of firearms and other property seized by the police department, including when the owner is unknown and the property is no longer needed for evidence?

A police department must first obtain a court order to forfeit or destroy property, including guns, seized for violation of the Alabama Uniform Controlled Substances Act under Section 20-2-93, Code of Alabama 1975. A Chief of Police may then use, sell or trade forfeited guns or property seized under Section 20-2-93. Proceeds from such sales must be deposited in the general fund and made available to the department upon requisition of the Chief of Police, with approval of the council. See AGO 2009-090

A police department must obtain a court order to use or destroy guns seized for certain firearms offenses under Section 13A-11-84(b), Code of Alabama 1975. The police department may not sell or trade condemned guns, or the parts thereof, seized under section 13A-11-84(b).

Abandoned motor vehicles are subject to Section 32-13-1, et seq., Code of Alabama 1975. All other property and guns may be disposed of as provided in Section 11-47-116, Code of Alabama 1975. Section 11-47-116(a), authorizes municipalities to pass an ordinance to provide for the taking up, storing and sale of abandoned and stolen property. In order to comply with due process rights, a municipality should have procedures in place for return of property to the owner when charges have been dropped and the property is no longer needed for evidence and has not been condemned. Proceeds from sales under Sections 11-47-116 must be deposited in the municipal general fund.
See AGO 2011-070.

CHANGING SALARIES: (January 2012)
How can the salaries and benefits of the mayor and council be changed?

Salaries of the Mayor and Councilmembers must be fixed by the Council at least six months prior to each general municipal election. Sections 11-43-2 and 11-43-80, Code of Alabama, 1975. Any changes to the salaries of these officials before the 2012 general municipal election must be in place on or before February 28, 2012. If the Council fails to take action within the time allowed or takes no action at all, the officers of the succeeding administration will receive the same salaries paid to the Mayor and Council of the last term. AGO to Hon. R.E. Pate, October 19, 1964.

The fees, salary, compensation or emoluments of any elected or appointed municipal official must not be increased nor diminished during their term of office and no gratuitous appropriation in any case shall be made to or for the benefit of any officer or employee in addition to his salary. Section 11-43-9, Code of Alabama 1975; Section 68 of the Alabama Constitution of 1901. A public official may voluntarily diminish his or her salary pursuant to Section 36-6-10, Code of Alabama, 1975. Elected officials may receive the same benefits as other employees of the municipality if such intention is expressed in the salary ordinance, as this would be deemed an increase in compensation. AGO 1981-013 and AGO 1981-197. However, an elected official may not receive cost-of-living raises during his or her present term of office unless specifically provided for in the salary ordinance. See AGO 2003-112 and AGO 2005-071. A municipality may not provide by ordinance for an elected official to participate in the State Employees Retirement System. AGO 1993-285.

Legitimate expenses made in connection with an official's duties may be reimbursed by the city. It is not recommended that a municipality provide a flat expense account for municipal officials without accounting for expenses incurred as such payments would be considered unauthorized salary payments. State v. Stone, 173 So. 871 (Ala. 1937); Garner v. State, 158 So. 546 (Ala. 1934). A municipality should adopt the practice of reimbursement of actual expenses incurred by its officers in the performance of their official duties upon affidavit of the officer who incurred the expense. This method generates a record and evidences the fact that the payments are not made in such a manner that they might be regarded as unauthorized salary increases. See also, Section 36-7-1 et seq., Code of Alabama 1975.

BUSINESS LICENSE: (December 2011)
What can be done if a business fails or refuses to obtain a municipal business license?

It is a criminal offense for any person, taxpayer, or agent of a person or taxpayer to engage in businesses or vocations in a municipality for which a license may be required without having procured a license. Each day a business operates without a required license constitutes a separate offense. Each offense may be punished by a fine not to exceed $500, and if a willful violation, by imprisonment, up to six months. §11-51-93, Code of Alabama. Any person intentionally aiding in the commission of the offense may also be charged. §13A-2-23, Code of Alabama. A law enforcement officer may arrest any person without a warrant if the offense has been committed in the presence of the officer. §15-10-3, Code of Alabama. The council of any municipality may, by ordinance, authorize its law enforcement officers to issue a summons and complaint (citation) in lieu of placing persons under custodial arrest, for any violation not involving violence, threat of violence or alcohol or drugs. §11-45-9.1, Code of Alabama.

Civil remedies allow for liens on real and personal property used in an unlicensed business. These liens attach as of the date the license is due and are superior to all other liens, except the lien of the state, county, and municipal corporations for taxes and the lien of the state and county for licenses. Such liens may be enforced by attachment. §11-51-96, Code of Alabama. The governing body should have the municipal attorney prepare the necessary notice of lien and civil complaint for attachment for satisfaction of the past due licenses.

A good overall way of enforcing license ordinances is found in §§11-51-150 through 11-51-161, Code of Alabama. This allows a municipality to seek remedies in court (1) to enjoin the further operation of the business within its corporate limits or police jurisdiction, (2) procure an accounting for license payments and penalties due, and (3) secure any equitable attachment that will aid in the license collection (i.e., liens, garnishments and freezing of assets). Injunction is the most drastic civil enforcement method, but is probably the only procedure which will work in cases where an established business adamantly refuses to pay for the required license.

BONUSES: (November 2011)
Frequently Asked Question: May municipal funds be used to provide a holiday dinner for municipal employees or to provide a holiday bonus to municipal employees?

Section 11-43-9, Code of Alabama 1975, states, “The fees, salary, compensation, or emoluments of any officer whose election or appointment is required or authorized by the applicable provisions of (Title 11) shall not be increased nor diminished during the term for which he shall have been elected or appointed, and no gratuitous appropriation in any case shall be made to or for the benefit of any officer or employee in addition to his salary.” Additionally, Section 68 of the Alabama Constitution of 1901, prohibits the granting of any extra compensation, fee, or allowance to any public officer, servant, or employee, agent or contractor, after service has been rendered or contract made. These provisions would prohibit the use of city funds to provide food to be used at a holiday dinner, for city officers and employees, or for bonuses granted after work has been performed.

Meals may be purchased for city employees only if related to municipal business. Public funds may be used to pay for meals and/or refreshments served at business meetings when the meals are directly related to the business of the entity, and the meals and refreshments are incidental to the meeting. In order for meals to be an incidental part of the meeting, the primary purpose of the gathering must be to have an official meeting at which business is conducted, not a social gathering at which food is provided. Refreshments may not be provided at a break during a meeting that does not extend through a mealtime. See AGO 2010-076.

Section 11-43-9 and Section 68 prohibit the use of city funds to pay holiday bonuses or give gifts to employees for holidays. AGO to Ms. Jane Phillips, January 3, 1978; George Roy, December 19, 1972; Hoover Moore, April 16, 1974. A council cannot give bonuses to employees, however, the council may provide for a lump sum raise to be earned by employees at a certain time each year. AGO to Hon. Jerry L. Tolbert, February 12, 1981.

APPROPRIATIONS: (October 2011)
Frequently Asked Question: May a municipality donate municipal funds to a booster club, non-profit organization or any other private entity?

Section 94 of the Alabama Constitution prohibits abuses resulting from the unwise and reckless expenditure of funds. In the absence of a special constitutional grant of power (a few Alabama cities have such grants), a municipality generally has no power to donate or grant public money or things of value, issue bonds, subscribe to stock or otherwise aid a private entity.

Section 94.01 (Amendment 772) of the Alabama Constitution allows a municipality to lend its credit to or grant public funds and things of value in aid of any individual, firm, corporation, or other business entity, public or private, for the purpose of promoting the economic and industrial development of the municipality. Before this can be done the municipality must pass a resolution, at a public meeting, containing a determination by the governing body that the expenditure of public funds for the purpose specified will serve a valid and sufficient public purpose, notwithstanding any incidental benefit accruing to any private entity or entities. In addition, at least seven days prior to the public meeting, a notice must be published in the newspaper having the largest circulation in the municipality, describing in reasonable detail the action proposed to be taken, a description of the public benefits sought to be achieved by the action, and identifying each individual, firm, corporation, or other business entity to whom or for whose benefit the municipality proposes to lend its credit or grant public funds or thing of value.

Under the Public Purpose doctrine a municipality may donate public money to organizations that have a lawful public purpose, such as volunteer fire departments or rescue squads, which benefit the general public and are not engaged in private enterprise. The paramount test should be whether the expenditure confers a direct public benefit of a reasonably general character, that is to say, to a significant part of the public, as distinguished from a remote and theoretical benefit. See Slawson v. Alabama Forestry Commission, 631 So.2d 953 (Ala. 1994).

Since Slawson the Attorney General has consistently held that the determination of whether an expenditure is for a public purpose is a factual one and can only be made by the governing body of the local government making the expenditure. See AGO 2003-074. The League strongly recommends the creation of a contractual relationship before the municipal governing body approves an expenditure of appropriation to a private individual, corporation or association.

SALARIES: (September 2011)
Frequently Asked Question: How are salaries set for appointed officials and employees?

Generally, the full authority to control municipal finances is placed in the municipal council. See Section 11-43-56, Code of Alabama 1975. The salaries of all officers must be fixed by the council. See Section 11-43-8, Code of Alabama 1975. Where the council has established fees for services performed by officers, it may prescribe that such officers shall receive a salary in lieu of all other compensation. In such cases, those fees must be collected by the officer and paid to the municipal treasury. See Section 11-43-6, Code of Alabama 1975.

If a maximum salary is established by statute for a particular office, the council may not prescribe a salary in excess of the maximum. If a salary maximum has been established by ordinance, the council may increase the salary upon two-thirds affirmative vote of all members elected to the council by and with the consent of the mayor. See Section 11-43-8, Code of Alabama 1975. If a minimum salary is prescribed by statute, an officer is entitled to the minimum whether or not the council has established a salary for the office.

If compensation has not been prescribed by statute, employees shall receive such compensation as the council may prescribe by ordinance. See Section 11-43-7, Code of Alabama 1975. Where the Mayor has veto authority, ordinances and resolutions fixing the salaries of employees and officers are subject to the Mayor’s veto. See Section 11-45-5, Code of Alabama 1975.

Section 68 of the Alabama Constitution of 1901, prohibits the council from increasing the compensation (salary or wage) of employees retroactive to a date beyond the first day of the pay period for which compensation will later be due. See AGO to Hon. Hugh Patterson, June 25, 1957 and AGO 2000-105. The salaries of officials and employees of public entities are matters of public record. See AGO 91-00364.

ELECTIONS: (August 2011)
Frequently Asked Question: How does a person become a candidate for municipal office and when may a candidate for municipal office begin to accept, solicit or receive campaign contributions?

A person becomes a candidate for municipal office either, (1) upon receiving contributions or making expenditures of one thousand dollars ($1,000) or more, with a view toward bringing about election to office, or (2) upon filing the appropriate qualifying papers to run for municipal office. See Section 17-5-2, Code of Alabama 1975. Within five days after any person becomes a candidate for municipal office, he or she must file with the judge of probate, a statement showing the names of the persons elected to serve as the principal campaign committee for such candidate, together with a written acceptance or consent by such committee, but any candidate may declare himself or herself as the person chosen to serve as the principal campaign committee. See Section 17-5-4, Code of Alabama 1975. Each principal campaign committee and elected municipal official must annually file with the judge of probate, on or before January 31, reports of contributions and expenditures made during the previous year. See Section 17-5-8, Code of Alabama 1975.

A candidate for municipal office must file a statement of candidacy and certify that he or she will have been a resident of the municipality and/or district for not less than 90 days on the date of the election. Additionally a candidate must certify that he or she is a qualified voter for the municipality and must have been a resident of the municipality and/or district at least 30 days prior to the filing of the statement of candidacy. See Section 11-46-25, Code of Alabama 1975.

A candidate, public official, or principal campaign committee may only accept, solicit, or receive contributions for a period of 12 months before an election in which the person intends to be a candidate. See Section 17-5-7, Code of Alabama 1975. Pursuant to Section 11-46-21 of the Code of Alabama, the next general election for most municipalities in Alabama will be August 28, 2012. Accordingly a candidate who intends to run for office in 2012 may begin accepting, soliciting, or receiving contributions after August 28, 2011.

AUDITS: (July 2011)
Frequently Asked Question: How often should financial reports be provided to the council?

The Clerk shall keep such accounts as may be necessary to show the financial condition of the municipality and of each department thereof at all times. See Section 11-43-102, Code of Alabama 1975. A Treasurer must make report once a month or more often, if required by the council, of the financial condition of the account of each department authorized to draw on the treasurer and shall make a quarterly statement, under oath, of the financial condition of the city or town to the council. See Section 11-43-120, Code of Alabama 1975.

As chief executive, the Mayor must present a written statement to the council at least once every six months to show the financial condition of the city or town – particularly the temporary floating indebtedness of the municipality and the purpose for which this temporary debt was incurred and proposals to protect the credit of the city or town. The Mayor shall require reports to be made to him by any officer of the city or town at such times as he may direct or as may be prescribed by the council in order to facilitate supervision of the activities of the various departments and officials of the municipality and to assist the mayor in making reports to the council. See Section 11-43-84, Code of Alabama 1975.

At least once a year, the mayor must appoint an accountant to make a detailed examination of all books and accounts of the city or town to cover the period since the preceding examination and make a full report thereof, in writing, under oath to be submitted to the council at its first meeting after the completion of the report. The audit report shall be spread upon the minutes of the council. See Section 11-43-85, Code of Alabama 1975. A town cannot waive the requirement of a yearly audit and at least once a year the town must secure an audit and pay an agreed upon sum for the services rendered by either the Department of Examiners of Public Accounts or an independent auditor. AGO 2010-068.

CAPITAL IMPROVEMENT FUND: (June 2011)
Frequently Asked Question: What may Capital Improvement Fund money be spent on?

The Municipal Government Capital Improvement Fund provided for in §11-66-1 et. seq., is authorized by Section 219.04 (Amendment 666), of the Alabama Constitution of 1901. Portions of the Municipal Government Capital Improvement Fund are distributed annually as provided for in §11-66-6, Code of Alabama. The share of each municipality must be expended solely for “capital improvements” and the renovation of capital improvements determined by the municipal governing body. The governing body of each municipality may use such share to finance bond or warrant issues for capital improvements and the renovation of capital improvements and may pledge such share to retire the principal and interest of such bonds or warrants.

Section 219.04 (Amendment 666), of the Alabama Constitution of 1901, defines "Capital Improvements" as capital outlay projects that include the planning, designing, inspection, purchasing, construction, reconstruction, improvement, repair or renovation of permanent buildings, docks, structures and sites therefor for the executive, legislative or judicial branches of state government. The term "Capital Improvement" shall also mean the construction or improvement of roads and bridges in the highway system; payment of debt service on the bonded indebtedness issued by the State of Alabama or any public corporation or authority of the State of Alabama; funding economic development and industrial recruitment activities; and the procurement of technical equipment, including computer and telecommunications equipment, required for the operation of any
governmental entity.

CONTRACTS AND EXPENDITURES: (May 2011)
Frequently Asked Question: Who is authorized to expend funds and enter into contracts on behalf of the municipality?

Generally, the full authority to control municipal finances is placed in the municipal council. See Section 11-43-56, Code of Alabama 1975. “All legislative powers and other powers granted to cities and towns shall be exercised by the council, except those powers conferred on some officers by law or ordinance.” §11-43-43, Code of Alabama 1975. Accordingly, the general rule is that the only method by which an employee or official may expend funds or be given authority to bind the municipality to a contract is by an affirmative vote of the council reflected in the minutes. An exception is the Mayor’s authority to contract for an annual municipal audit pursuant to §11-43-85, Code of Alabama 1975.

The council should designate the person authorized to execute a contract. “Contracts entered into by a municipality must be in writing, signed and executed in the name of the city or town by the officers authorized to make the same and by the party contracting. In cases not otherwise directed by law or ordinance, such contracts shall be entered into and executed by the mayor in the name of the city or town and all obligations for the payment of money by the municipality, except for bonds and interest coupons, shall be attested by the clerk.” §11-47-5, Code of Alabama, 1975

It is not necessary for the council to validate each disbursement of funds individually, but it is required that all claims, requisitions and demands against the municipality be submitted to the Council for approval, unless already provided for by ordinance or resolution. See generally §11-43-101, Code of Alabama, 1975 and Tingle v. J.D. Pittman Tractor Co., 99 So.2d 435 (Ala. 1957).

AGENDA: (April 2011)
Frequently Asked Question: Who is in charge of preparing the “agenda” for a council meeting?

The council determines its own rules of procedure, except where otherwise provided by law. See Section 11-43-52, Code of Alabama. The council may establish a procedure for creating a “preliminary agenda” prior to the meeting and establish the person or persons responsible for putting the “preliminary agenda” together.

If a “preliminary agenda” is created, it must be posted as soon as practicable in the same location or manner as the notice of the meeting. If a “preliminary agenda” is not available, the posted notice must include a general description of the nature and purpose of the meeting. See Section 36-25A-3, Code of Alabama.

It should be noted that the “preliminary agenda” does not become the “official” agenda until adopted by a vote of the council. The proposed agenda is followed as a guide by the chair pending its formal adoption. See Robert’s Rules of Order Newly Revised (10th ed.) p. 361, l. 10-11. An affirmative vote to adopt an agenda may not be reconsidered. After an “official” agenda has been adopted no change can be made in it except by a vote of the council. See Robert’s Rules of Order Newly Revised (10th ed.) p. 360, l. 18-30.

The presiding officer is delegated the authority to make necessary rulings on questions of parliamentary law. Ordinarily, when the procedure that has been established by the council is not followed then any council member may call for a point of order and appeal rulings of the chair to the entire governing body. Usually this appeal must be taken before the next order of business is addressed or the right to appeal is lost. See Robert’s Rules of Order Newly Revised (10th ed.) pp. 247-252.

ROAD MAINTAINANCE: (March 2011)
Frequently Asked Question: Who is responsible for maintaining County roads inside the municipality?

If a county was in control of and maintained county roads and rights-of-way in the corporate limits of a municipality on July 7, 1995, it is to continue the maintenance and upkeep of these roads unless the procedures of section 11-49-80(a) and 11-49-81 of the Code of Alabama have been followed.

In the absence of an agreement, a county cannot insist that a municipality’s share of the gasoline tax proceeds be used for the upkeep of county roads in a municipality. A county, by virtue of its exclusive authority to maintain and control its roads, is under a common-law duty to keep its roads in repair and in reasonably safe condition for their intended use. A county has a statutory obligation to maintain the safety of its roadways pursuant to §22-1-80 of the Code of Alabama. See Holt v. Lauderdale County, 26 So.3d 401 (Ala.2008). If a municipality has not accepted roads for maintenance under the procedure set out in Sections 11-49-80 and 11-49-81 of the Code of Alabama, nor has it assumed responsibility by exercising sole authority over those roads, then the municipality is not responsible for the material costs of maintenance, paving, and scraping of roads within its corporate limits. See AGO 2003-034.

The annexation of unincorporated territory into a municipality, after July 7, 1995, shall result in the municipality assuming responsibility to control, manage, supervise, regulate, repair maintain, and improve all public streets or parts thereof lying within the territory annexed, if such public streets or parts thereof were controlled, managed, supervised, regulated, repaired, maintained, and improved by the county for a period of one year prior to the effective date of the annexation.

Content on this page requires a newer version of Adobe Flash Player.

FAQs from The Alabama Municipal Journal