A flood of concern about the legality of a tax that the City Council
reinstated two weeks ago has prompted Councilwoman Debbie Cook to
seek legal advice on the issue from California Atty. General Bill
Since any member of the legislature can ask for a legal opinion of
the state's attorney general, Cook approached Assemblyman Tom Harman.
"I have requested from Tom Harman that he ask the attorney general
to issue an opinion," Cook said. "We are pursuing outside advice on
this issue to make sure we've covered all of our bases."
The tax the council reinstated will fund retirement benefits for
public safety employees approved by voters in 1966 and 1978 at a rate
of $7 per $100,000 of assessed value. The city stopped collecting the
property tax for two years while being sued by the Howard Jarvis
Taxpayers Assn. for a similar tax.
The city lost the four-year legal battle and is now faced with
paying property owners as much as $27 million in refunds.
Many, including Councilman Dave Sullivan and Assemblyman Tom
Harman, who were on the council together four years ago when the
lawsuit began, think the city may be repeating a $27-million mistake.
Since the property tax was approved by the City Council less than
three weeks ago, critics have questioned its legality in the face of
Government watchdog Chuck Scheid says he fears it violates
Proposition 13, the 1978 initiative that froze the property taxes
cities could levy at 1% of the property's assessed value.
Jon Coupel, president of the Howard Jarvis Taxpayers Assn.,
wonders whether it violates Proposition 218, an initiative passed by
voters in 1996 that requires a two-thirds majority vote for any new
or increased tax.
Cook believes that the tax does not violate either initiative but
still feels that an issue of this magnitude warrants an outside
"We do want to make sure on this, and that's why we're seeking an
outside opinion," she said.
Cook predicted that it could take months before the city hears a
response from Lockyer, but said that in the meantime, the city won't
spend the money collected.
"We're in no mad rush to spend the money," she said.
Harman said that Lockyer would give a good, reliable opinion but
warned that there's no guarantee that Lockyer will accept the
"The only fly in the ointment is that it's my understanding that
the attorney general can decline and say it's not within his
jurisdiction," Harman said.
The assemblyman hopes that Lockyer will choose to honor the
request and estimates that he'll know for sure by next week. If
Lockyer agrees, Harman said, it could take him several weeks to come
back with a decision.
Harman criticized the city for not adequately informing property
owners about the refund and personally sent out 34,000 claim forms to
Huntington Beach homes.
"I think that the city needs to get an independent legal opinion
on whether this road they're going down is correct or incorrect,"
In forming his opinion, the attorney general would ask the advice
of the Howard Jarvis Taxpayer's Assn., said Tim Bittle, director of
legal affairs for the taxpayers' group.
"On any tax question that the attorney general receives, [he]
contacts us for our input," Bittle said, and pointed out that, in a
roundabout way, the city is seeking advice from the very group that
"We have a strong interest of protecting our victory in the
lawsuit," Bittle said, adding that getting an opinion from Lockyer
would be a smart move for the city.
"It wouldn't hurt, two heads. It would certainly give more of an
air of legitimacy to what the city's doing," Bittle said. "The city
attorney is a little bit biased because [she] works for the city.
Then [the city] would be able to say that there's some respectable
outside legal authority for what [it's] been doing."