Opinion No. ( 1999 )

The Honorable Randy Minton State Representative 880 Minton Road Ward, AR 72176-8618

Dear Representative Minton:

You have requested an Attorney General opinion in response to the following question:

Can the fees that are collected for private sanitary sewer permits be used to help pay for designated representatives' continuing education to insure public health for Arkansas?

It is my opinion that under state law, the fees that are collected for private sanitary sewer permits cannot be paid directly to representatives as reimbursement for fees associated with their required annual continuing education.¹ However, these fees can, under state law, be used to pay the cost of providing the required continuing education to designated representatives.

Under the provisions of the Arkansas Sewage Disposal Systems Act, applicants for individual sewage disposal permits must pay a fee of $30.00. A.C.A. § 14-236-116(a). The Act broadly addresses the manner in which this fee is to be used.

In this regard, the Act states:

(f) Permit and regulation fees collected under this chapter shall be deposited in the State Treasury as follows:

(1) Five dollars ($5.00) of each permit fee collected for permits issued under subsection (a) of this section shall be credited to a special fund to be known as the "Individual Sewage Disposal Systems Improvement Fund" which is established on the books of the State Treasurer, with such moneys to be used by the Division of Sanitarian Services of the Department of Health, and in the manner recommended by the Advisory Committee on Individual Sewage Disposal Systems, for the implementation of the utilization and application of alternate and experimental individual sewage disposal systems, as set forth in this chapter.

(2) The remainder of the fees collected for permits issued under the provisions of subsection (a) of this section, and all of the net fees collected under the provisions of subsections (b), (c), and (e) of this section shall be credited to the Public Health Fund, and the moneys shall be used only for the operation of the Division of Sanitarian Services of the Department of Health. . . .

A.C.A. § 14-236-116.

"Designated representatives" are not employees of the state or of the Department of Health. For this reason, public funds (such as the Individual Sewage Disposal Systems Improvement Fund and the Public Health Fund, into which the $30.00 permit fee must be placed) cannot be used for the private purpose of maintaining the individual certification of designated representatives. Such a use of these funds does not, in my opinion, fall within the uses designated in the Act (quoted above).

Accordingly, I must conclude that the permit fee may not be used to help pay the fee that is levied on designated representatives for their required annual continuing education.

However, it is my opinion that the permit fee can be used to pay for the cost of providing continuing education. The cost of continuing education would fall within the public purposes designated in the Act for the funds into which the permit fee must be deposited.

Under the provisions of the Act quoted above, the $30.00 fee is divided into two parts. One portion (consisting of $5.00 out of each permit fee) goes into a special fund called the "Individual Sewage Disposal Systems Improvement Fund." See also A.C.A. § 19-5-405. The remainder goes into the Public Health Fund. In my opinion, the language of the Act is stated broadly enough to allow the overseers of both of these funds to determine that a portion of the fund should be used to pay the cost of providing continuing education for designated representatives.

The portion of the permit fee that goes into the special fund is to be used as recommended by the Advisory Committee on Individual Sewage Disposal Systems. See also A.C.A. § 14-229-102. The law does set forth parameters within which the Committee's recommendation must fall. The fund must be used "for the implementation of the utilization and application of alternate and experimental individual sewage disposal systems, as set forth in this chapter." A.C.A. § 14-236-116(f)(1). This limitation is certainly broad enough to encompass the cost of providing continuing education for designated representatives.

Similarly, the portion of the fee that goes into the Public Health Fund is governed by a broad parameter. It must be used "only for the operation of the Division of Sanitarian Services of the Department of Health." A.C.A. § 14-236-116(f)(2). Clearly, this broad parameter could encompass the cost of providing continuing education for designated representatives, if the administrators of the Public Health Fund should choose such a use.

Because of the broadly stated parameters for the use of both portions of the $30.00 permit fee, I conclude that either portion may be used to help pay the cost of providing continuing education for designated representatives. Again, however, it may not, in my opinion, be used to help pay the fee that is levied on designated representatives for their required annual continuing education.

Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP:SA/cyh

¹ Under the provisions of the Arkansas Sewage Disposal Systems Act, "designated representatives" [as defined in the Act, see A.C.A. §14-236-103(14)] are required to attend training courses annually and to pay an annual fee of $50.00 to maintain their registration and certification. See A.C.A. § 14-236-116(b) and (d); Reg. 7.5, DOH -RulesAnd Regulations Pertaining To Sewage Disposal Systems. The Act specifically provides that this $50.00 fee is to be credited to the Public Health Fund. See A.C.A. § 14-236-116(f)(2).