HomeMy WebLinkAboutDocumentation_Regular_Tab 23_10/13/2011 ������%��� ��
ATTORNEYS AT LAW
1111 Hypoluxo Road, Suite 207
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JOHN CORBETT TELEPHONE (561) 586-7116
TRELA J. WHITE TELECOPIER (561) 586-9611
BRADLEY W. BIGGS*^
KEITH W. DAVIS• " Board Certified in City, County and Local Govemment Law
R. MAX IAHMAN ^ State Certified County and Circuit Court Mediator
ABIGAIL FORRESTER JORANDBY '•AICP, LEED AP
JENNIFER GARDNER ASHTON
ERIN L. DEADY, P.A., Of Counsel**
MEMORANDUM
TO: Mayor and Council Members
FROM: Keith W. Davis, Esq.
DATE: October 6, 2011
RE: Challenge to Palm Beach County Office of Inspector General Funding
A. The Purnose of This Lawsuit.
1. NOT to overturn the Inspector General Program.
2. SOLELY to contest the funding mechanism for the Program.
B. Historv of Countvwide Programs in Palm Beach Countv.
1. County Charter states that municipal ordinances prevail over county ordinances to
the extent of any conflict, unless voters of both the County and the Municipality vote in a
referendum to create a"countywide" regulation on a particular matter.
2. Prior to 2010, five amendments to the County Charter have occurred after
approval by the voters in a referendum, and municipalities have never been required to
share in the cost of these countywide programs (well-fields, county wide impact fees,
planning council, county roadway LOS, voluntary annexation).
3. In 2010, when the County Commission on Ethics and Office of Inspector General
were made to apply countywide by referendum vote, the cost of the Commission on
Ethics was and is funded entirely by the County.
4. The County Office of Inspector General, however, is proposed to be funded in
part by the Municipalities, with no explanation as to this change in policy.
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C. The Current IG Funding Mechanism Is An Illegal Tax.
The IG funding requirement for municipalities does not qualify as a valid user fee or a valid
special assessment. Therefore, the only thing it could be is a t�. This t� is not permitted by
general law or the Florida Constitution and is therefare unenforceable.
1. The funding requirement is not a user fee, because there is no nexus between the
fee being charged and the services being rendered (IG investigation, audit or contract
oversight may be more present in some municipalities than others, resulting in some
municipalities subsidizing services performed in another); the funding requirement is not
voluntary; and the fee payer (a particulaz municipality) may not actually be the recipient
of the service (a different municipality).
2. The funding requirement is not a special assessment, because there is no benefit to
real property associated with it.
3. If the funding requirement is not a user fee or a special assessment, it must be a
tax. State law, however, clearly states that a ta�c cannot be imposed unless it is provided
for by genera.l law or the Sta.te Constitution. There is no such general law or
constitutional provision for an IG funding requirement. Therefore, it appears that the
County's requirement that the municipalities pay a percer�tage of the IG's annual budget
would constitute an illegal or invalid tax.
4. The fact that the voters approved a ballot question does not make it legal.
D. The Current IG Funding Mechanism is Inconsistent with the Charter Amendment.
1. The original charter amendment stated that the program's minimum funding base
was to be in an amount equal to 0.25% of contract activity.
2. Presently, however, the County is using the LOGER system to calculate the
minimum funding base. The LOGER system does not look only at contract activity.
Instead, it looks at all expenditures over a period of time, having the effect of artificially
growing the source of funds available for the IG program.
E. The Prouosed Alternative IG Funding Mechanism (Contract Fee) is not feasible.
An alternative funding mechanism, making vendors and contractors pay a 0.25% fee on every
municipal or county contract, was considered and then abandoned by the County (due to
substantial administrative difficulties) before the Inspector General Ordinance was adopted on a
countywide basis. There are several reasons that this approach is not feasible.
1. The Contract Fee Does Not Appear in the Current Ordinance: The current
Ordinance sa.ys that the IG will be funded "in an amount equal to" 0.25% of contract
activity.
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2. The Contract Fee would Constitute an Ille a1 Tax for the same reasons that the
current funding mechanism is an illegal tax as described above.
3. The Contract Fee Would Cost Tax�avers MoneX, since contractors and vendors
could simply increase their contract price by 0.25% to pay for the fee as opposed to
cutting theu own profits.
F. Municioal Residents Are Paving for the Same Countv Service Twice.
l. Municipal residents are paying the same county taxes as those living in
unincorporated areas, which go toward the County's share of the IG's funding. These
same municipal residents are also paying municipal taxes, which go toward the
municipality's share of the IG's funding.
2. A taxpayer receives the same services from the IG, whether he or she is within a
municipality or the unincorporated azeas of the County. A municipal taxpayer receives
no additional services in exchange for paying more.
G. The Municinalities Have Lost Control Over Their Sud�ets.
l. By obligating Municipalities to pay for the Inspector General program, in an
amount established by the County, Municipalities have lost controi over their own
budgets.
2. The County can increase the funding base far the Inspector General program
without getting the Municipalities' input or consent, and approve supplemental budget
requests without getting the Municipalities' input or consent.
3. This conflicts with municipal Home Rule and Chapter 166, Florida Statutes,
which provide that Municipalities have the exclusive right to appropriate funds as they
deem necessary in the responsible operation of government.
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