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Outgoing leader would adhere to AG opinion

KEVIN UPCHURCH

KEVIN UPCHURCH

By BOBBY HARRISON / Daily Journal

JACKSON – Kevin Upchurch, the outgoing state fiscal officer, said this week if he was still in office on July 1 he would adhere to the official opinions of the Attorney General’s office, meaning the state would have less revenue than originally thought for the upcoming budget year.

The state fiscal officer, who also serves as executive director of the Department of Finance and Administration, oversees the enactment of the budget, disbursing funds to state agencies based on the appropriations bills passed by the Legislature and signed into law by the governor.

Upchurch is retiring on July 1 so it is not clear how his replacement will handle the delicate issue of how to carry out the mandates of the Budget Transparency and Simplification Act that was passed during the 2016 session.

The office of Attorney General Jim Hood released three official opinions this week that would mean the new law, which is a linchpin in developing the budget for the fiscal year starting July 1, would not produce as much revenue as the legislative leadership said it would.

“It has always been my position to err on the side of the law, and with the AG being the state’s top lawyer, the best protection we could have is to follow his interpretation/opinion of the law,” Upchurch said in an emailed response.

He added that since his tenure began in 2009 he has “always adhered to the AG opinions, and as far as I know, this department has always followed the opinions prior to my time here.

“Now, that is not to suggest that I wouldn’t be supportive of the Legislature making changes to the law to make sure the law actually represents what they intended to come about.”

The attorney general’s opinions regard the aspects of the Budget Transparency and Simplification Act that sweeps into the general fund about $188 million in “special funds” that were generated through various fees and assessments and that in the past were designated for specific purposes.

The AG’s opinion said in some instances the special funds designated for specific purposes cannot be swept into the general fund because of other state laws that were not changed by the Budget Transparency and Simplification Act.

In addition, “applying the plain language” of the new law, if the fees or assessments do not go “for the support” of the agency, then the fund would continue and those funds would not be transferred to the general fund.

Upchurch said if the next executive director does adhere to the attorney general’s opinions, it will leave a shortfall in the budget.

“If certain funds are deemed to be not available or not correctly/legally made available to be transferred to the general fund then there is obviously not enough money in the general fund to cover the appropriations made,” he said. “It’s really no different than you writing a check for a certain amount, and yet the balance in your checking account is not enough to cover the check.”

Gov. Phil Bryant has not named Upchurch’s replacement. The governor did not respond to questions about whether he would want the next state fiscal officer to adhere to the attorney general’s opinions regarding the Budget Transparency and Simplification Act.

But he did say, “I’ll take Attorney General Hood’s opinion into consideration and work with the legislative leadership to determine if any adjustments are needed. This should be a collaborative effort in bringing more transparency and accountability to the budget process.”

Laura Hipp, a spokeswoman for Lt. Gov. Tate Reeves, said the attorneys in Hood’s office “appear to use sound logic consistent with legislative intent,” in regards to some of the opinions related to the new law. But she said Hood “completely contradicts himself” in saying the special funds that in the past were channeled through his agency, such as a fund to compensate victims, would not be covered by the act.

AG’s opinions do not carry the weight of law, but do provide protection from litigation for public officials who follow them.

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