July 7, 2006

ATTORNEY GENERAL OPINION NO. 2006- 13

Michael R. O'Neal, Counsel

Girard Public Library

20 West 2nd Avenue, 2nd Floor

P.O. Box 2977

Hutchinson, Kansas 67504

Re:	Cities and Municipalities--Miscellaneous Provisions--Employee Benefits Contribution Fund in Certain Taxing Subdivisions; Tax Levy; Use of Proceeds; Establishment of Employee Benefits Contribution Fund for Library Employees

Synopsis:	Pursuant to K.S.A. 12-16,102, which authorizes a taxing subdivision to create an employee benefits contribution fund for a political subdivision on whose behalf it levies taxes, it is the governing body of the taxing subdivision that determines the amount of the annual tax, not the governing body of the political subdivision for which the fund was created. Cited herein: K.S.A. 12-
1218, 12-1220,12-16,102,13-14a02,13-14,100,14-10a02; K.S.A. 2005 Supp. 44-505c; K.S.A. 44-710e.

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Dear Mr. O'Neal:

As the attorney for the Girard Public Library, you inquire whether it is the governing body of the city or the governing body of the city library1 that determines the amount of the annual tax for an employee benefits contribution fund established for the city library.

You mention that past Attorney General opinions have concluded that it is the city library board that determines the amount of the tax levied to maintain the library.2 However, those opinions rest on an interpretation of K.S.A. 12-1220, which requires a city governing body to "establish [a city] library and . . . annually levy a tax for the maintenance [of the library] . . . in such sum as the library board shall determine. . . ."3

The answer to your question lies not in K.S.A. 12-1220 but, rather, in K.S.A. 12-16,102. K.S.A. 12-16,102 authorizes a taxing subdivision4 to create employee benefits contribution funds for both the taxing subdivision and "any political subdivision for which a tax is levied by such taxing subdivision for the purpose of paying the employer's share of any employee benefits . . . as may be prescribed in the ordinance . . . of the governing body creating such funds." In a situation involving a city library created pursuant to K.S.A. 12-1218 et seq., the city is the "taxing subdivision" and the city library is the "political subdivision" referred to in K.S.A 12-16,102.5

Section (c) of K.S.A. 12-16,102 addresses the annual tax:

"(c) The governing body of any taxing subdivision having established employee benefits funds . . . is hereby authorized to levy an annual tax upon all taxable tangible property within the taxing subdivision in an amount determined by the governing body to be necessary for the purposes for which such funds were created. . . ."6

Prior to 1978, when K.S.A. 12-16,102 was enacted, cities and counties levied separate taxes to fund a variety of employee benefit programs such as pension plans,7 worker's compensation,8 and unemployment insurance.9 K.S.A. 12-16,102 offered an alternative to levying a separate tax for each program by creating one employee benefits fund and levying one tax for the taxing subdivision/employer's share of employee benefits.10

However, when K.S.A. 12-16,102 was enacted, only cities, counties, and other political subdivisions authorized to levy taxes had the authority to create the employee benefits contribution fund.11 City library boards established pursuant to K.S.A. 12-1218 et seq. did not.12

In 1983, K.S.A. 12-16,102 was amended to address this problem by authorizing taxing subdivisions to create employee benefits funds for those political subdivisions on whose behalf taxes were levied by the taxing subdivision.13 The below italicized portion in subsection (b) of K.S.A. 12-16,102 highlights the amendments:

"(b) Any taxing subdivision14 may create and establish employee benefits contribution funds for (1) the taxing subdivision or (2) any political subdivision for which a tax is levied by such taxing subdivision for the purpose of paying the employer's share of any employee benefits, exclusive of any salaries, wages or other direct payments to such employees, as may be prescribed in the ordinance or resolution of the governing body creating such funds. The taxing subdivision may receive and place in such funds any moneys from any source whatsoever which may be lawfully utilized for the purposes stated in the ordinance or resolution creating such funds, including the proceeds of tax levies authorized by law for such purposes."

The State Librarian and the Kansas Library Association had initially requested new legislation authorizing a municipality to create an employee benefit fund for a municipal library and levying additional taxes to finance the fund.15 The original bill authorized a municipality to levy an annual tax "in an amount certified to the governing body of the municipality by the public library to be necessary for the purposes for which the fund was created."16

The League of Kansas Municipalities suggested that new legislation was unnecessary because K.S.A. 12-16,102 would suffice with the amendments referenced above.17 The League was successful in its efforts but the result left unchanged the 1978 verbiage in subsection (c) allowing the governing body of the taxing subdivision to establish the amount of the annual tax.

Moreover, when interpreting K.S.A. 12-16,102, we are mindful of one of the rules of statutory construction that presumes that identical words used in different parts of the same statute are intended to have the same meaning throughout the act.18 The reference to "governing body" in subsection (c) of K.S.A. 12-16,102 refers to "the governing body of any taxing subdivision" as the entity responsible for levying the annual tax. The second time "governing body" is used in subsection (c) is in conjunction with its role in determining the amount of the tax levy. The reference to "governing body" throughout this statute19 refers to the taxing subdivision's governing body - not the political subdivision's governing body.

Taking into consideration this rule of statutory construction and the legislative history of K.S.A. 12-16,102, it is our opinion that it is the governing body of the taxing subdivision that determines the amount of the annual tax, not the governing body of the political subdivision for which the employee benefits contribution fund was created.

Sincerely,

Phill Kline

Attorney General

Mary Feighny

Assistant Attorney General

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