Monday, October 16, 2006

Does a Yes on Issue 12 Really Mean a New Jail?

Posted by The Dean of Cincinnati

A guest article by Michael Earl Patton.

Several people have noticed that the wording of Issue 12, commonly known as the “jail tax” issue, actually says nothing about a new jail.  Instead it says that the additional sales tax shall be used “for the purpose of supporting criminal and administrative justice services.” Now that’s a little vague, and while it certainly would allow a new jail to be built with the money, it doesn’t mandate it.  What’s going on?

It turns out that the county commissioners passed TWO resolutions on August 21.  One put the sales tax on the ballot—let’s call that the tax resolution.  The other said that the tax shall be used for an 1800-bed jail and calls for a property tax roll-back.  Let’s call that the jail resolution.  The tax resolution said that the money shall be used “for the purpose of supporting criminal and administrative justice services”; that’s where the wording comes from.  It also said that the tax shall be one-quarter of one percent and last 10 years.

Now here’s where the Ohio Revised Code (ORC) comes in.  The ORC Section 5739.021 states what must be in the resolution for a sales tax increse:

Let’s take this bit by bit.  First, one needs a resolution by the commissioners.  We have that—the tax resolution.

Second, the resolution has to state the purpose for the tax.  We have that, too—it’s for “criminal and administrative justice services,” as stated in the tax resolution.

Third, the resolution has to state the length of time.  We have that—10 years, again, as stated in the tax resolution.

So where does the jail resolution come in?  Answer: I don’t know.  It is a separate resolution, and even contradicts the tax resolution in that it states the period shall be less than 10 years if there are “additional” savings.  Additional to what?  The baseline is not given.  Furthermore, the jail resolution talks about a property tax reduction in conjunction with the sales tax increase.  Presumably this tax reduction is paid for by the sales tax, but that runs into another problem from the same section of the ORC:

But this is a separate resolution from the tax resolution, and the ORC says that such apportioning shall be in the resolution establishing the tax.

Here’s what I think it all means: the jail and the property tax reduction are promises by the commissioners, and are not actually being voted on by the electors.  They are voting on a quarter-cent sales tax increase to be used for “the purpose of supporting criminal and administrative justice services,” period.  The commissioners could use the tax money for a broad range of such purposes including a new jail, but also including new staff for the sheriff, prosecutors, or coroner, or new rehabilitation programs for the inmates.  I would also interpret the ORC to mean that they cannot use the tax revenue for a property tax reduction.

I have asked the legal council for the commissioners for clarification.  When I hear back, I will post it in the Beacon. 

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says:
16 Oct 2006  at  04:15 am | #

ORC:  If the tax is to be levied for the purpose of providing additional general revenues and for the purpose of supporting criminal and administrative justice services, the resolution shall state the rate or amount of the tax to be apportioned to each such purpose.

Am I missing something?  What Patton calls the “tax resolution” includes no language pertaining to “the rate or amount of the tax to be apportioned to each such purpose.” Doesn’t that mean the ballot initiative is wrong, or something?

funnelcake says:
16 Oct 2006  at  06:58 am | #

Here is the county’s webpage on the “jail tax”:
http://www.hamiltoncountyohio.gov/administrator/bsi/jail.asp

Here is the PDF of the text we will be voting on:
http://www.hamiltoncountyohio.gov/administrator/bsi/jail/SalesTax.pdf
Earl is correct that the language of what we are voting on never says “Jail” or “consutruction” except for the word “jail” in the title of the PDF file.  But we aren’t voting on PDF filenames now are we?

The County Administrators have already passed an separate amendment for both a reduction in property tax and specifying that the “jail tax” will be used to build a jail.  But since the citizens are not voting on that, the county commissioners can change their own resolutions as they see fit.  That resolution is here:
http://www.hamiltoncountyohio.gov/administrator/bsi/jail/Reduction.pdf

Nate Livingston says:
16 Oct 2006  at  02:18 pm | #

I’d like to know where all the local politicians stand on Issue 12.

I’m especially interested in knowing whether Republican State Representative candidate Kim Hale supports or opposes the jail tax?

nineball says:
16 Oct 2006  at  04:59 pm | #

Yeah, Where does Dale stand on this?
I bet he wants a tax so he can get a better cell.

says:
16 Oct 2006  at  06:53 pm | #

Whatever…

I oppose this regressive, poorly executed, unclear tax—and I urge everyone else to do the same!

Robert Wilson says:
16 Oct 2006  at  07:15 pm | #

I certainly oppose this mess of a “deal”

says:
16 Oct 2006  at  07:26 pm | #

I heard back from Robert Johnstone, the attorney for the commissioners.  He said that there was an opinion from the attorney general, <u>no. 2000-027, which states that the commissioners can reduce the property tax at any time while the sales tax increase is in effect.  The only restriction is a technical one in that the “inside millage” has to be the one reduced, which would not prohibit a reduction in the case of Hamilton County.  This opinion is based on another section of the ORC, section 5705.313.

I don’t agree with Mr. Johnstone, as this would render the section about apportioning essentially meaningless.  But this is what the county’s legal opinion is.  So they are saying that property tax reductions can be even bigger and last longer than the ones stated in the “jail resolution.” Could most or even all of the sales tax money go for property tax reduction?  Given the interpretation above, apparently so.

says:
17 Oct 2006  at  07:39 am | #

To answer the Dean’s question (#1):

I don’t think that the Dean is missing anything.  The “tax resolution” says nothing about apportioning some of the proceeds to general revenue, which is what one would have to do for a property tax reduction.  So the way I read it, a property tax reduction is not legal.

If you read Mr. Johnstone’s opinion (#7), he says differently.  He is basing this on section 5705.313 of the Ohio Revised Code (ORC).  That section says that one can have a property tax reduction at any time a sales tax increase is in effect.  Here’s why I think Mr. Johnstone is wrong—the Issue 12 “tax resolution” says specifically that the revenue shall be used for “supporting criminal and administrative justice services.” It is nota general, unspecified, sales tax increase.  If the sales tax increase were for general revenue, then I would agree that one of the many purposes for which the money could be used is a property tax reduction.  But Issue 12 is not.  It is specific.  And it says nothing about using any portion for general revenue.

If one reads all of section 5739.021 it states what “supporting criminal and administrative justice services” may include.  Property tax reduction is not one of them.  Therefore using the money for property tax reduction is against the ORC.

However, since Mr. Johnstone is the legal counsel for the commissioners, his opinion probably overrides what we say here.  Unless someone sues, of course.  Any public-minded lawyer want to help us here?

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