Cook takes tax question to Lockyer

Jenny Marder

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

two propositions.

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,"

Harman said.

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

sued it.

"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."

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