Lawyer sues county over 911 fee increase

A Corbin attorney and vocal critic of the Whitley County Fiscal Court filed suit last week seeking to block the county from transferring excess monies, which are expected to be generated from a recent 911 fee increase, to the county’s general fund.
On March 30, David O. Smith filed suit in Whitley Circuit Court against the fiscal court, Judge-Executive Burley Foley, and Magistrates Nolan Bird, Johnny Lawson, Wayne Wilson, and David Myers.
The lawsuit seeks an injunction to halt the transfer of funds from the operation of the Whitley County 911 system to pay for any other expenses of the fiscal court or any agency administered or funded by the fiscal court.
On Feb. 28, the fiscal court approved the second reading of an ordinance raising the 911 fee from 95 cents per month to $2 per month.
“Upon information and belief, the increase in the 911 fee is in excess of the amount needed to operate the Whitley County 911 system, and the aforesaid fiscal court intends to transfer funds from the 911 account to the general fund or other funds to pay non-911 related expenses,” Smith wrote in the lawsuit, which he filed himself.
The February increase was the first since the 911 fee was instituted in 1988.
Foley was out of the office Monday and Tuesday, and could not be reached for comment.
Following the first reading of the ordinance on Feb. 16, county officials said that they anticipated that the fee increase would generate some revenue in excess of what it takes to pay for the 911 service annually.
If that happens, Foley said the revenue would be used to pay back the county’s general fund about $480,000 that has been transferred into the 911 service over the last 10 years.
“If we just need $60,000 of it for the 911 service, then we can take the other $140,000, and reimburse the general fund for years we have paid into it,” Foley said.
County Treasurer Jeff Gray said the fee increase should generate about $200,000 more each year in additional revenue providing that the number of households with land based telephones stays the same. Officials cautioned that more and more households are doing away with land based telephone service in lieu of cell phones though.
Foley said that he didn’t know if the 95-cent per month 911 fee had ever covered all of the 911 expenses. He said that the fiscal court had been contributing funds to help cover the 911 expenses since he was first elected to the fiscal court as a magistrate in 1994.
“I would rather pass a fee than a tax. It is a buck a month basically,” Foley said.
In the lawsuit, Smith quotes a state statute, which appears to support his position.
“All revenues from a tax or fee expressly levied to fund 911 emergency services shall be expended solely for the establishment, operation, and maintenance of a 911 emergency communications system; this may include expenditures to train communications personnel and to inform the public of the availability and proper use of the 911 service,” the statute states.
The lawsuit also seeks a judge’s ruling that funds derived from the Whitley County 911 fee can only be used to pay expenses exclusively for the 911 system, and for a declaration that the 911 system owes no loans to the Whitley Fiscal Court.
Whitley County Attorney Paul Winchster said Monday afternoon that he was aware of the lawsuit, but that he hadn’t had time to review it yet.
According to the county’s budget for the 2005-2006 fiscal year, which was approved last June, the 95-cent per month 911 fee on land based phone lines was expected to generate $188,700 in revenue for the fiscal year with fees from wireless telephone 911 surcharge generating $61,500. The fiscal court was expected to transfer $60,500 from the general fund into the 911 fund.
The total expenses for the 911 fund were expected to total $318,750 with $154,000 being paid out in wages, but since that budget was approved the fiscal court has laid off some 911 employees.