CHAPTER FOUR - COUNTY WORK ON PRIVATE PROPERTY

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I. GENERAL RULE PROHIBITING WORK ON PRIVATE PROPERTY
 

A. CONSTITUTIONAL PROHIBITION

Section 94, Constitution of Alabama 1901, as amended by Amendment 112, provides that:

The legislature shall not have power to authorize any county, city, town, or other subdivision of this state to lend its credit, or to grant public money or thing of value in aid of, or to any individual, association, or corporation whatsoever, or to become a stockholder in any such corporation, association, or company by issuing bonds or otherwise. It is provided, however, that the legislature may enact general, special, or local laws authorizing political subdivisions and public bodies to alienate, with or without a valuable consideration, public parks and playgrounds, or other public recreational facilities and public housing projects, conditional upon the approval of a majority of the duly qualified electors of the county, city, town, or other subdivision affected thereby, voting at an election held for such purpose.

This constitutional prohibition is the basis for the long-held view that counties are prohibited from performing work on private property or from providing labor or materials to individuals.

 

B. ETHICS LAW

There are also ethics law considerations. Code of Alabama 1975, § 36-25-5 prohibits use of public office or employment for personal gain. Paragraph (c) of that Code section prohibits a public official or employee from using public equipment, facilities, time, materials, human labor, or property under his or her discretion or control for the private benefit or business benefit or for the benefit of any other person. Additionally, § 36-25-5(d) provides that no person shall solicit such an activity “which would materially affect his or her financial interest, except as otherwise provided by law.”

For Ethics Opinions specifically addressing the use of public equipment or personnel for work on private property, see, Ethics Opinion ## 95-111 and 96-109.

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C. ATTORNEY GENERAL INTERPRETATIONS OF LAW

There are numerous attorney general’s opinions addressing specific questions raised in regard to this prohibition. Some of the holdings are as follows:

• County cannot dump surplus dirt onto private property absent local legislation unless the dirt is without value and it is shown that dumping the dirt on nearby private property will cost less than hauling it some distance for disposal. AG’s Opinion ## 93-299 and 83-261. See also, Ethics Opinion # 95-111.

• County cannot sell pipe to individuals at its cost. AG’s Opinion # 84-31.

• County cannot perform work on water and sewer lines located on private property beyond main water and sewer lines. AG’s Opinion ## 2001-188 and 95-29.

• County cannot maintain school bus parking pads or turnarounds on private property. AG’s Opinion ## 2005-176; 96-214; 94-245; and 92-172.

• County (or city) cannot pave around a funeral home housed in a county building leased to individual. AG’s Opinion # 93-311.

• County has no authority to perform private work at no cost to a church. AG’s Opinion ## 2010-081; 96-37 and 93-145.

• County cannot perform excavating work for private college at no charge. AG’s Opinion # 81-126.

• County road department may not clear debris from private property. AG’s Opinion # 83-299. But see, AG’s Opinion # 2005-029, holding that debris removal can be performed following hurricane if there is a public purpose or if the debris constitutes a health hazard, the property owner is assessed, and no private source can be located for removal.

• County employees cannot load chert onto private vehicles. AG’s Opinion # 97-01.

• County may not use its equipment and employees to open and close graves even where there is full reimbursement. AG’s Opinion # 98-130.

• Maintenance of a church cemetery would violate Section 94 of Alabama’s Constitution. AG’s Opinion # 2010-081.

• County cannot remove culvert/drainage ditch located on private property where the county has no liability for its installation and its removal would be of no benefit to the county even though the ditch floods and backs water onto property of residents (and even though the county had installed the original drainage ditch in violation of the constitutional prohibition). AG’s Opinion # 99-290. See, also, AG’s Opinion # 2005-077.

• Town has no authority to pave a private roadway or private drive, but may pave a street if it has been dedicated and accepted by the town. AG’s Opinion # 2002-130.
   

II. EXCEPTIONS TO GENERAL RULE
 

A. LOCAL LEGISLATION

The attorney general’s office has consistently held that the county may perform work on private property where there is local legislation authorizing such work to be done, provided:

• The legislation provides that the county will be fully reimbursed for the labor, materials, and equipment used in the work.

• There is a provision of certainty in the legislation that the county will be paid. See, e.g., AG’s Opinion ## 2001-188; 96-61, 94-245, 90-257, 89-89, and 84-393.

The requirement for reimbursement has been strictly construed by the attorney general’s office. AG’s Opinion ## 93-139, 84-31, and 81-04. In other words, even with a local law authorizing work on private property, the owner of the property must pay for any work performed or materials used.

At least three circuit courts in Alabama have struck down local laws authorizing county work on private property, declaring that it violates § 94 and Amendment 112 of Alabama’s Constitution.

As set out above, Amendment 112 does authorize local legislation to provide assistance for certain public purpose projects such as parks or housing projects, if approved by the electorate. However, this would have very limited application.
 

B. STATUTORY EXCEPTIONS

The attorney general’s office has also recognized exceptions to the general prohibition against counties performing work on private property based upon statutory provisions authorizing certain actions. Some examples are:

• The county may use county equipment and labor in the construction of a football field on property owned by the county school system. AG’s Opinion # 82-374. This exception is based on Code of Alabama 1975, § 11-3-11(a)(21) which authorizes counties to use county equipment and expend necessary funds for the improvement, beautification, or decoration of any county school or schools under the control of the county board of education.

• The attorney general has also held that the county commission can maintain a private road for school buses to transport special education students entitled to transportation services if the board of education pays for the maintenance. See, AG’s Opinion ## 2004-159; 2004-056 and 99-145.

• The county may perform free grading, filling, graveling, and pavement work at rural volunteer fire department locations. AG’s Opinion # 87-28. This is based upon Code of Alabama 1975, § 9-3-18, which authorizes the county (and other governmental entities) to donate money, property, equipment or other thing of value to volunteer fire departments and rescue squads.

• The county may provide funds, labor, and/or equipment for agricultural and industrial development purposes pursuant to Code of Alabama 1975, § 11-3-11(a)(19). This statutory provision and the statute authorizing the creation of industrial development boards and county assistance thereof (Code of Alabama 1975, § 11-20-30 et seq.) have generally been broadly applied. See, e.g., AG’s Opinion ## 98-94 and 94-264.

• Code of Alabama 1975, § 11-3-11(a)(19) has also been cited as authority for appropriating funds and contracting for services with an economic development authority. See, e.g., AG’s Opinion ## 2006-137, 94-233 and 89-449.

• See, also, Amendment 772 of Alabama’s Constitution, which allows the county to use public funds and resources for the promotion of economic and industrial development, provided the procedures in the amendment (including public hearing) are followed and a public purpose is established.

• Code of Alabama 1975, § 23-1-86 authorizes counties to maintain roads and bridges within a municipality with the consent of the municipality. AG’s Opinion # 87-307. [1]

• When the county does work under one of the exceptions noted above, it is important to keep in mind the funding sources for the project. As discussed in Chapter Six, Funding Sources for County Roads and Bridges, counties are restricted to certain uses for proceeds from gasoline taxes. There are other limitations on uses from the various funds of the county that are beyond the scope of this manual.
   

C. SPECIAL CIRCUMSTANCES

Other exceptions have been recognized because of a special circumstance, such as a showing that there is a genuine benefit to the county and/or public. Some examples of these are listed below:

• The attorney general’s office has authorized work on private property to correct a health problem or nuisance, as where the county health department certifies to the county commission that an abandoned well is a public health or safety hazard. AG’s Opinion # 88-223. See also AG’s Opinion ## 2001-188; 96-61; 94-221; and 93-303.

• In this situation, the county may assess the expense or cost of the work to the property owner. AG’s Opinion # 93-303.

• The attorney general has also held that a town can perform debris removal following a hurricane if (1) the property owners are assessed, (2) the debris constitutes a health hazard, and (3) the landowners were unable to secure a private source to perform the service. AG’s Opinion # 2005-029.

• The county may perform work on the county rights-of-way. AG’s Opinion ## 91-251 and 89-89.

• The county may contract with a private landowner to dump debris onto the landowner’s property using county equipment and personnel, where the county is receiving a benefit in that it needs land for dumping debris from storms. AG’s Opinion # 96-83. This opinion should be read very narrowly.

• A municipality may use community development block grant (CDBG) funds to install sewer lines on private property. AG’s Opinion # 91-406.

• This opinion, which would likely apply to a county as well, is based upon the attorney general’s conclusion that “use of CDBG funds to rehabilitate privately owned property does not violate § 94 of the Constitution of Alabama, 1901, as amended.”

• But see also, AG’s Opinion # 2003-074, holding that a local government can only expend public funds to improve private property if it concludes that a public purpose will be met by the public expenditure.

• The attorney general’s office has held that the Constitutional prohibition is not applicable to work done by a county on a roadway belonging to a public water authority because it is a public corporation and a road belonging to that corporation would be a public road. AG’s Opinion # 82-72.

• However, the county may not perform maintenance and repairs on a private road leading to a water authority. AG’s Opinion # 2001-231.

• The county may also perform work where damage to private property resulted from improvements to county property. AG’s Opinion # 95-18.

• As part of its maintenance of the county road system, a county may clean drainage areas located on private property if the county has an easement and the county will receive some benefit from the work performed. AG’s Opinion ## 90-317 and 87-307.

• The county may also maintain driveway bridges and install driveway pipe located on county rights-of-way and connecting private property to a public road at its expense where necessary “for the safety and convenience of the traveling public”. AG’s Opinion # 91-251.

• The attorney general has repeatedly held that the county cannot perform work on private property for the purposes of parking or turnaround. AG’s Opinion # 94-245.

• A private driveway is not considered a public road simply because it is used by a school bus or mail carrier. AG’s Opinion ## 96-214 and 82-72.
   

In an opinion discussing a municipality, the attorney general’s office held that a city may lease idle equipment if the lease contract indemnified the municipality from liability and required return of all equipment in good condition and if all of the following strict guidelines are met:

• The service is not available in the area through private enterprise

• The equipment is leased only when not needed by the municipality

• The amount paid should be comparable to the rental price from private sources

• The lease contract mandates municipal approval of machine operators

• Municipal employees allowed to operate machinery only when off duty

AG’s Opinion # 96-282. See also, Ethics Opinion # 96-109.

In addition to the exceptions based upon a genuine benefit to the public, the attorney general has held that transfers among governmental agencies are not subject to the limitations of Section 94 of the Constitution. See, e.g., AG’s Opinion # 2010-010.

 

D. PUBLIC PURPOSE DOCTRINE

The Supreme Court has held that public entities may donate public money or other things of value where there is a “public purpose”, which has as its objective the promotion of public health, safety, morals, security, prosperity, contentment, and the general welfare of the community. The test should be whether the expenditure confers a direct public benefit of a reasonably general character (i.e. a significant part of the public). Slawson v. Alabama Forestry Commission, 631 So.2d 953 (Ala. 1994). See, also, AG’s Opinion # 2005-073.

The Supreme Court and the attorney general’s office have generally held that this is largely a decision to be made by the governing body. However, counties should be very careful in applying this doctrine, and ensure that there will be a direct public benefit of a general character. The attorney general has written numerous decisions discussing this principle. A few of the most recent are:

• A city may assist in the removal of siltation from a private lake if it determines that this removal effort would serve a “public purpose”. AG’s Opinion # 2002-211.

• A city may assist the county program on aging in the renovation of a building for the activities of the program. AG’s Opinion # 2002-039.

• A city may only pave a roadway adjacent to a public street if it acquires the roadway for a public purpose by dedicating transfer of deed, or by prescription. AG’s Opinion # 2004-143.

• The restrictions of Section 94 do not apply where a governmental entity enters into a contract with mutual benefits to each party and consideration on both sides. AG’s Opinion # 2005-017.[2]

• City may expend public funds to pay for debris removal following hurricane if it determines that the work serves a legitimate public purpose or absent such finding, it may assess property owners for the clean up where the debris is a health hazard and the owners cannot find a private source to perform the clean up. AG’s Opinion # 2005-029.

• County may assist a city in preparing a roadway on private property to promote industry or prevent job loss if it determines that a public purpose will be served and that a public benefit is provided. AG’s Opinion # 2005-041.

• The creation or increase in tax revenue alone is not sufficient to show public purpose.

In recent years, the Attorney General’s office has begun to look more closely at whether there is some statutory authority to support the use of public monies, even when applying the “public purpose doctrine”. For example, in AG’s Opinion # 2012-044, that office held:

Absent statutory authority to promote the general welfare and development of citizens who are mentally and developmentally disabled, the Geneva County Commission may not use and appropriate county funds to the Geneva County Association for Retarded Citizens for the payment of fire and hazard insurance on a building owned by the Association. See, also, AG’s Opinion # 2013-005.
 

E. AMENDMENT 772

Amendment 772 of the Constitution of Alabama was ratified in 2004. This amendment grants counties fairly broad powers to use county resources for the acquisition and establishment of economic and industrial development projects. Under this amendment, the county may do any of the following without violating the constitutional provision prohibiting counties from using public funds for private purposes:

• Acquire, sell, or lease real property and equipment using public funds

• Lend its credit or grant public funds or things of value for the promotion of economic and industrial development

• Become indebted and issue bond

Prior to taking any action under this amendment, the county commission must:

• Provide seven days notice of the public meeting at which expenditure of public funds will be considered

• Adopt a resolution making the determination that the expenditure of specified use public funds will serve a valid and sufficient public purpose

• As noted above, this amendment gives counties broad powers to provide for economic and industrial development which may well include participation in the infrastructure needs of any given project. Counties should consider all prospects very carefully to determine whether they fit within the definition of the public purpose doctrine as discussed above.
   

See, AG’s Opinion # 2006-137.

An economic development project may include transportation infrastructure, maintenance, and improvement. See e.g., AG’s Opinion # 2009-068. Therefore, if proper procedures are followed, Amendment 772 may be used for this purpose.