[StBernard] ATTORNEY GENERAL MAY 16 2007 OPINION NO. 06-0164-A

[Westley Annis]

State of Louisiana 
DEPARTMENT OF JUSTICE 
CIVIL DIVISION 
SHREVEPORT 
71101-SS3i 
430 FANNIN STREET
SUITE 309
TEL: 318) 227-3790 FAX: (31B) 676-7144 
CHARLES C. FOTl, JR.
ATTORNEY GENERAL  
MAY 16 2007 OPINION NO. 06-0164-A 
 
Ms. Polly C. Boudreaux
Clerk of Council 
St. Bernard Parish Council
8201 West Judge Perez Drive

Chalmette, Louisiana 70043


46 - A - FEES & COSTS 
115 - TAXATION-COLLECTION & ENFORCEMENT 
AGAINST PERSON AND PROPERTY 
LSA-R.S. 18:1284 


According to the St. Bernard Parish Home Rule Charter an.d LSA-R.S. 18:1284,
a resolution for a tax must be approved 
by two-thirds of the total council before it is placed on a ballot for voter
approval. In contrast, a fee can be levied by adoption of a ordinance of the
council. 


 
Dear Ms. Boudreaux: 
 
Your request for an Attorney General's opinion has been forwarded to me for
research and reply. Specifically, you ask how the St. Bernard Parish Home
Rule Charter, Sections 2-17(d) and 2-11(a)(7), should be interpreted with
regard to council authority in regulating fees. You also state that your
request for this opinion arose in a discussion of Attorney General Opinion
Number 06-0164. In that opinion this office opined that all proposals to
levy a new or increase an existing sales and use tax, charge, or fee shall
be submitted to the voters for approval in accordance with the election laws
of the state. We also said that the St. Bernard Parish Council is not
permitted to suspend the provision requiring all proposals to levy or
increase fees and charges be approved by the voters of St. Bernard Parish. 
 
To answer your question, Sections 2-17(d) and 2-17(e) and 2-11(a) (7) must
be analyzed. These provisions areas follows: 
Section 2-17. Power to levy taxes. 
 
(d) All proposals to levy a new or increase an existing sales and use tax,
charge, or fee shall be submitted to the voters for approval In accordance
with the election laws of the state. 
 
(e) All tax proposals requiring a vote of the electors must be approved by a
favorable vote of at least two-thirds (2/3) of the total membership of the
council prior to submission of the proposal to the voters. 
 
Ms. Polly C. Boudreaux OPINION NO. 06-0164-A Page 2 
 
Section 2-11. Action requiring an ordinance. 
(a) An act of the council having force of law shall be by ordinance. An act
requiring an ordinance shall include but not be limited to those which: 
 
(7) Regulate the rate or other charges for service by the 
parish government; 
 
Louisiana jurisprudence has discussed the difference between a "tax" and a
"fee." According to Audubon Insurance Company v. Bernard, 434 SO.2d 1072
(La. 1983), the Louisiana Supreme Court held: 
 
It is well settled generally and in Louisiana that not every imposition of a
charge or a fee by the government constitutes a demand for money under its
power to tax If the imposition has not for its principal object the raising
of revenue, but is merely incidental to the making of rules and regulations
to promote public order, individual liberty and general welfare, it is an
exercise of the police power. 
 
In contrast, the court in Audubon (supra) stated 
 
But if revenue is the primary purpose for an assessment. and regulation is
merely incidental, or if the imposition clearly and materially exceeds the
cost of regulation or conferring special . benefits upon those assessed, the
imposition is a tax. 
 
It appears that Section 2-17(d) and (e) deal with the parish's taxing power
and raising revenue as the primary purpose, while Section 2-11 (a)(7) deals
with the parish's police power and implementing fees to offset the cost of
government services. 
 
It is apparent from reading the sections from the St. Bernard Parish Home
Rule Charter that Sections 2-17(d) and 2-17(e) require proposals to levy a
new or increase an existing sales and use tax, charge, or fee to be approved
by two thirds (2/3) of the total council before it is submitted to the
voters for their approval. 
 
When reading Section 2-11 (a) (7), it could be argued that this section
allows the council to regulate the rate or other charges for service by the
parish government by adopting an ordinance. While this may be the case for
increasing the charge for garbage collection or for water, Section 2-11 (a)
(3) is more specific in dealing with levying taxes or assessments. 
 
Ms. Polly C Boudreaux OPINION NO. 06-0164-A Page 3 
 
This subsection is as follows: 
 
(a) An act of the council having the force of law shall be by ordinance. An
act requiring an ordinance shall include but not be limited to those which: 
 
(3) Levy taxes or assessments as provided by law in 
accordance with section 2-17; 
 
Accordingly, Section 2-17(d) and 2-17(e) require approval of 2/3 of the
total council before a vote is submitted to voters to levy taxes or
assessments. 
 
It must be noted that Section 2-17(d) of the Home Rule Charter requires that
proposals are to be submitted to the voters "in accordance with the election
laws of the state" The state statute which governs voting on these proposals
is LSAR.S. 18:1284 which states:
Section 1284. Resolution calling election; proposition. 
A. The election shall be ordered by a resolution of the governing authority
of the political subdivision which shall state the purpose for which it is
called. 
 
B. If the purpose of the election is to authorize the issuance pf bonds, the
resolution and the proposition submitted to the voters shall state the
purpose for which the bonds are to be issued and, if required by the law
pursuant to which the bonds are issued, the maximum amount of the bonds to
be issued, the number of years for which the bonds are to run, and the
maximum rate of interest on the bonds. 
 
C. If the purpose of the election is to authorize the levy or Increase of a
special tax, the resolution and the proposition submitted to the voters
shall state the rate, object, and purpose for which the tax is to be levied
or increased; the estimated amount reasonably expected to be collected from
the levy or increase of the tax for one entire year at the time it is
proposed; and, if it is to be limited as to duration, the number of years it
is to run. 
 
D. If the purpose of the election is to authorize the assumption of
indebtedness, the resolution and the proposition submitted to the voters
shall state the amount and nature of the debt to be assumed. 
 
Ms. Polly C. Boudreaux OPINION NO. 06-0164-A Page 4 
 
E. In each election ordered by a governing authority of a political
subdivision for the purpose of authorizing the issuance of bonds, the
proposition on the ballot submitted to the voters shall state the kind and
source of revenues which are pledged to retire the bonds. 
 
F. (1) The preparation of the statement of the proposition to be submitted
to the voters at an election shall be the responsibility of the governing
authority of the political subdivision ordering the election. The statement
of the proposition shall also include a simple and unbiased concise summary
in easily understood language which sets forth the substance of the
proposition. The statement of the proposition, including the summary, shall
not exceed four hundred words in length. Such summary shall be set in all
capital letters and shall be placed at the beginning of the statement of the
proposition. 
 
(2) The secretary of state shall be responsible for ensuring that the
statement of the proposition contains the summary as provided in Paragraph
(1), of this Subsection. 
 
Section 1284 requires a resolution, rather than an ordinance of the
governing body of a political subdivision to order an election. A proposal
to levy or increase taxes, charges, or fees does not become law until it is
approved by the voters. Also, since Section 1284 is a state statute which
governs the procedure a political subdivision must follow to order an
election, this state statute must be followed rather than Section 2-11
(a)(3) of the St. Bernard Parish Home Rule charter. Please note that neither
Section 2-17(d) nor 2-17(e) require that the proposal submitted to the
voters be an ordinance. 
 
On the other hand, it appears that regulating the rates or other charges for
services by St. Bernard Parish can be effected by the adoption of an
ordinance of the council. There may be a question of what is a Section
2-17(d) "charges" which must go to the voters to be approved and what is a
Section 2-11 (a)(7) "charge for service" which can be effected by passage of
an ordinance. Since this is an area of uncertainty, it is suggested that
your council may address this by clarifying the definitions of both terms in
a amendment to your home rule charter. The procedure for this is set out in
Section 7-04. 
 
In summary, when following the applicable Sections of the St. Bernard Parish
Home Rule Charter [Sections 2-17(d) and 2-17(e)] and the state statute found
in the Louisiana Election Code (LSA-R.S. 18:1284), a resolution for a tax
must be approved by two-thirds (2/3) of the total council before the
proposal can be placed on a ballot for voter approval. In contrast, if the
council is regulating a fee, 
 
Ms. Polly C Boudreaux OPINION NO. 06-0164-A Page 5 
 
the rate or other charge for service by your parish government, it can be
accomplished by adoption of an ordinance by the council. 
 
We trust this sufficiently answers your question. However, if you should
need any additional information do not hesitate to contact this office. 
 
Very truly yours, 
 
CHARLES C. FOTI, JR
ATTORNEY GENERAL 
 
BY 
FRANCES J PITMAN 
ASSISTANT ATTORNEY GENERAL 
 
CCF,Jr.:FJP:sc