News - Elections

POSTED: Monday, Jun. 22, 2009

County attorney: Property tax measure not legal

Whatcom County attorneys say that former KGMI personality Brett Bonner's property-tax-restricting proposal is not only inappropriate for an initiative, but state law trumps local laws on such taxes.

In a legal memo to County Council members about the issue - a common practice by government officials prior to making decisions - Chief Civil Deputy Prosecutor Randy Watts said courts have limited the way initiatives can be implemented and that no right exists by the public to limit a power delegated to a local government by the state.

"I think it is clear that Whatcom County Chief Civil Deputy Prosecutor Randy Watts is using selected citations and case law to reach a predetermined opinion," Bonner said in response to the memo, adding he had very little time to study it.

Bonner said that, though he isn’t an attorney, be believes case law isn’t clear on the issue of charter county power versus state power and other issues.

Bonner has argued that his mini-initiative, which goes directly in front of the County Council for a vote and not to the public, isn't the people taking away any ability of the council but the council members themselves doing it.

But Watts said in his memo that the council can't even take away the ability themselves, because state law pre-empts local laws on property taxes.

"(The state has) adopted very specific regulations with regards to it and thus the County is prohibited from adopting ordinances which are inconsistent with that," Watts said.

He also said that local laws and ordinances cannot be inconsistent with the state Constitution, though allowing an advisory vote of the people, because it's nonbinding, would be legal.

Under Bonner's proposal, County Council members would have to seek voter approval to take banked capacity, which is a tax increase they decided not to take in past years but have reserved the right to take if needed. Under state law, taxing districts can increase property taxes by only 1 percent per year plus banked capacity.

One fund Bonner included in the ordinance, controlled by the independent government body of the Flood Control Zone District Board of Supervisors, cannot be controlled in this proposal, Watts added in a follow-up memo after County Councilmen Sam Crawford and Seth Fleetwood asked more questions.

County Council members say the legal opinion will not mean that a June 23 public hearing on the issue will be canceled, but some believe it could change how some members might vote.

Crawford, who has been an adamant supporter of Bonner's proposed ordinance, said he was still leaning toward voting for the proposal but was disappointed in the legal opinion.

"I think it's a sad day when the will of the voters and the citizens cannot be followed because of regulatory entanglements," he said. "In other words, I believe that we should be able to institute a system of government locally that is the preference of the local people."

Councilwoman Barbara Brenner also favors Bonner's proposal and doesn't agree with the legal memo.

"I'm not a legal person, but this is to the council to make our own decision, and I don't think our hands should be tied on making our own decision," she said. "If we want to say we're restricting ourselves to this, then we do have that authority."

Councilman Carl Weimer intended to vote against the proposal before Watts issued the legal opinion.

"I'm a firm believer in representative government, and if you don't like what we're doing, toss us out," Weimer said. "I don't think anybody wants to hang their hats on just the technical, legal stuff, although I was kind of surprised how clear Randy made it sound."