Attorney General: Secretary Mark S. Ryan, Office of Policy and Management, 1999-012 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

November 3, 1999

Secretary Mark S. Ryan
Office of Policy and Management
450 Capitol Avenue
Hartford, Connecticut 06106

Dear Secretary Ryan:

Your office requested our opinion on whether the Town of Seymour may enter into an agreement with a third party agent to collect current and delinquent sewer use charges pursuant to authority granted in Public Act 96-217, as amended. We conclude that Public Act 96-217 does not authorize the Town to enter into such an agreement, but there are other statutes that provide the Town with options for using a third party agent for collection purposes.

Section 4 of Public Act 96-217 provides for the establishment of a pilot program in the Town of Seymour for the purpose of improving the tax collection capabilities of the Town. Specifically, Section 4 of the Public Act provides:

Notwithstanding any provision of the general statutes or regulations adopted thereunder, the town of Seymour is authorized, for the period of the pilot program, to employ a third-party agent, acting under the direction of the town tax collection official to collect current and delinquent property taxes, interest, and fees...

(emphasis added). The Connecticut courts have not ruled on the question of whether sewer use charges are property taxes, and so we must conduct the appropriate analysis.1

In the construction of statutes, it is an accepted principle that "[w]hen a statute provides that a thing shall be done in a certain way, it carries with it an implied prohibition against doing that thing a different way." State v. White, 204 Conn. 410, 423-4, 528 A.2d 811 (1987) (citing State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957); New Haven v. Whitney, 36 Conn. 373, 375 (1870)); See also Conn. Light & Power Co. v. Walsh, 134 Conn. 295, 301, 57 A.2d 128 (1948). Further, "[a]n enumeration of powers in a statute is uniformly held to forbid things not enumerated." State ex rel. Morris v. Buckeley, 61 Conn. 287, 367, 23 A. 186 (1892), cited in White, 204 Conn. at 424 and in Kaminsky, 114 Conn. at 620; see also 30 Conn. Op. Atty. Gen. 99, 100 (1957). When construing a statute concerning municipal authority, the governing principle is that a municipality, "being a creature of the State, can exercise no powers except those which are expressly granted to it or are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation." Bredice v. City of Norwalk, 152 Conn. 287, 292 (1964).

The Attorney General relied on the above principles in 1992, when he issued an advisory opinion concluding that a municipality could not use a third party agent to collect delinquent taxes, except for the limited purpose of making personal or written demand on delinquent taxpayers as expressly authorized by Conn. Gen. Stat.  12-155. See Conn. Op. Atty. Gen. 92-18 (1992). Subsequently, in 1993, Public Act 93-434 was passed by the legislature, authorizing municipalities to assign for consideration liens filed to secure unpaid taxes on real property. See  12-195h. However, an effort to allow municipalities to transfer the functions of the tax collector to a private contractor failed in 1995. See Interim Report of the Task Force to Study Municipal Tax Collection, April, 1997. Nonetheless, Public Act 95-228 established a Task Force on Municipal Property Tax collection, and the first pilot programs to improve tax collection in New Haven and South Windsor, by allowing these towns to contract with third party agents for tax collection services. Public Act 96-217 extended the pilot program to the Town of Seymour. The program's applicability to real and personal property taxes is clear from the language of the statute, but whether it extends to sewer use charges cannot be discerned without resort to statutory construction.

Sewer use charges are imposed under the authority of Conn. Gen. Stat.  7-255, which provides in pertinent part:

(a) The water pollution control authority may establish and revise fair and reasonable charges for connection with and for the use of a sewerage system. The owner of property against which any such connection or use charge is levied shall be liable for the payment thereof. Municipally-owned and other tax-exempt property which uses the sewerage system shall be subject to such charges under the same conditions as are the owners of other property, but nothing herein shall be deemed to authorize the levying of any property tax by any municipality against any property exempt by the general statutes from property taxation. (emphasis added).

The primary purpose in construing statutes is to ascertain and give effect to the intention of the legislature. That the legislature did not consider sewer use charges to be "property taxes" is evident from the unequivocal language highlighted. "When the words of a statute are plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature." Rhodes v. Hartford, 201 Conn. 89, 93 (1987).

Our conclusion that sewer use charges are not "taxes" for purposes of Section 4 of Public Act 96-217 is consistent with the weight of authority from other jurisdictions which have considered the issue. See West Capital Associates Limited Partnership v. City of Annapolis, 110 Md. App. 443, 677 A.2d 655, 658 (1996) and cases cited therein ("water and sewer charges imposed by municipalities are generally not regarded as taxes or fees in the nature of taxes but rather as charges for the sale of a service or commodity.") See also Jersey City Sewerage Authority v. Housing Authority of the City of Jersey City, 40 N.J. 145, 190 A.2d 870, 872 (1963) and cases cited therein.

Our conclusion is buttressed by the language in Conn. Gen. Stat.  7-258 which governs collection of sewer use charges. The property tax collection statutes provide the framework for collection of sewer use charges,2 including the imposition of a statutory lien for delinquent charges. However, while providing the framework for collection activity, it is clear the legislature did not consider sewer use charges to be the equivalent of property taxes, as demonstrated by the provision on lien priorities: "Each such [sewer use charge] lien shall take precedence over all other liens and encumbrances except taxes" (emphasis added). Such phrasing is an unambiguous statement by the legislature that it does not consider sewer use charges to be "taxes." Accordingly, it is our view that Public Act 96-217, Section 4 which authorizes the Town of Seymour to hire third party agents to collect current and delinquent property taxes does not authorize the collection of sewer use charges, because such charges are not "taxes."

Nor does Section 4 of Public Act 96-217, when read together with  7-258, which authorizes a municipality's designated "collector" to "collect such [sewer use] charges in accordance with the provisions of the general statutes for collection of property taxes" (emphasis added), create authority for the proposed agreement. Although most Public Acts are general in nature and are codified in each revision of the General Statutes, occasionally Public Acts contain provisions which are special in nature. Such provisions are not codified and are not included in the Revised General Statutes, although they remain in full force and effect. See, Reference Tables to the General Statutes Rev. of 1997, vol. 16 (Preface). Such provisions, being special in nature, are not statutes of general applicability, or "general statutes." Section 4 of Public Act 96-217 is such a provision. It is special in nature and has not been codified. Accordingly, it is not a "provision[ ] of the General Statutes for the collection of property taxes" within the meaning of  7-258.

In conclusion, it is our opinion that Public Act 96-217 does not authorize the Town of Seymour to enter into an agreement with a third party agent to collect current and delinquent sewer use charges. However, as noted at the outset of this opinion, other statutes provide the town with options for using a third party agent for collection purposes. Section 7-258 permits the town to designate the tax collector or "any other person" as collector of sewerage system use charges. Such collector "may collect such charges in accordance with the provisions of the general statutes for the collection of property taxes." Therefore, the Town of Seymour may by ordinance designate a third party as "collector" of sewer use charges. In accordance with section 7-258, such third party would be required to follow the statutory procedures governing collection of property taxes. The town's current collector may use a third party agent in the manner discussed in Conn. Op. Atty. Gen. 92-18 (1992) (to make demand on delinquent taxpayers only). Finally, the town may assign for consideration liens for delinquent sewer use charges to a third party. Only the first option provides for collection of current (as distinguished from delinquent) charges. None of the options permits the town to contract with a third party for collection of sewer use charges without designating such third party as "collector" or without requiring such third party to follow statutory collection procedures.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Shelagh P. McClure
Assistant Attorney General

RB/SPM/rj


1 The issue of whether sewer use charges are taxes is distinguishable from the issue addressed in cases such as Zizka v. Water Pollution Control Authority, 195 Conn. 682, 689, 490 A.2d 509 (1985), which held that sewer assessments "although not formally denominated a 'tax' involves the taxing power of the state" for purposes of the federal Anti-Injunction Act, 28 U.S.C.  1341, and Vaill v. Sewer Commission, 168 Conn. 514, 517, 362 A.2d 885 (1975), which held, somewhat more equivocally, that

[a]n assessment for benefits is not ordinarily included in the term 'taxes.' Cortigiano v. Waterbury, 133 Conn. 1, 4, 47 A.2d 413; Whitmore v. Hartford, 96 Conn. 511, 523, 114 A.686; New London v. Miller, 60 Conn. 112, 116-17, 22 A. 499. '[W]hile an assessment of benefits is an exercise of the taxing power of the State, it is never spoken of in charters of cities and boroughs, or in the general law, or in popular...(usage), as a tax.' While it is 'in a general sense a tax, it is one of a peculiar nature. It is a local assessment imposed occasionally, as required, upon a limited class of person interested in a Local improvement; who are assumed to be benefited by the improvement to the extent of the assessment.' Bridgeport v. [*888] New York & N.H.R. Co., 36 Conn. 255, 262. They stand apart from the general burdens imposed for State and municipal purposes, and are governed by principles that do not apply to the general levy of taxes. (emphasis added).

Assessments, which are imposed pursuant to  7-249 and may be based on "area, frontage, grand list valuation and [ ] present or permitted use or classification" of the benefited property, are distinguishable from use charges, which may be based on "any factors relating to the kind, quality or extent of use of any such property or classification of property or users including, but not limited to, (1) the volume of water discharged to the sewerage system, (2) the type or size of building connected with the sewerage system, (3) the number of plumbing fixtures connected with the sewerage system, (4) the number of persons customarily using the property served by the sewerage system, (5) in the case of commercial or industrial property, the average number of employees and guests using the property and (6) the quality and character of the material discharged into the sewerage system."  7-255(a)

2 Section 7-258 provides in part:

Delinquent charge for connection or use. Lien. Any charge for connection with or for the use of a sewerage system, not paid within thirty days of the due date, shall thereupon be delinquent and shall bear interest from the due date at the rate and in the manner provided by the general statutes for delinquent property taxes. Each addition of interest shall be collectible as a part of such connection or use charge. Any such unpaid connection or use charge shall constitute a lien upon the real estate against which such charge was levied from the date it became delinquent. Each such lien may be continued, recorded and released in the manner provided by the general statutes for continuing, recording and releasing property tax liens. Each such lien shall take precedence over all other liens and encumbrances except taxes and may be foreclosed in the same manner as a lien for property taxes. The municipality may by ordinance designate the tax collector or any other person as collector of sewerage system connection and use charges and such collector of sewerage system connection and use charges may collect such charges in accordance with the provisions of the general statutes for the collection of property taxes...

(emphasis added).


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