Opponents of Measure 24-292, the Marion County (Oregon) charter change, have been using scare tactics in an effort to preserve the county government status quo.
I guess they think government is working so wonderfully, we, the people, shouldn't try to improve it. Well, polls show that most citizens want more control over government. They're tired of politicians working for special interests, rather than the general good.
One of the be scared! approaches of some No on 24-292 folks is to claim that the Measure will lead to increased taxes. On page 27 of the Marion County Voter Pamphlet that came in the mail yesterday, the three current county commissioners say:
Vote "NO" on 24-292 to: PROTECT your right to vote on county tax measures
Some recent letters to the editor in the Salem Statesman Journal have echoed this talking point. But also without providing any evidence that the Measure threatens the right of voters to approve new county taxes.
So I did some research today. And concluded that we taxpayers don't have anything to fear from Measure 24-292. That's the bottom line.
Here's what led me to that conclusion: Basically, freedom and democracy shouldn't be feared.
The proposed charter change moves the county from being governed by state law, to a "home rule" governance. As the first page of this Law Review article says, in 1906 Oregonians approved a change to the state Constitution that allowed cities to claim extensive lawmaking authorities through their charters.
In other words, home rule.
Pretty much as states have powers not granted to the federal government by the U.S. Constitution, after 1906 Oregon cities enjoyed the right to have powers independent of state government.
In 1958 Oregon voters, by referendum, extended the privilege of home rule to counties. Currently nine counties (out of 36) have taken advantage of the home rule option. Marion would be the tenth.
This morning I emailed our three current county commissioners, asking them the basis for their statement above -- that the right to vote on county tax measures needed to be protected with a "no" on Measure 24-292.
Commissioner Janet Carlson replied quickly, which was much appreciated. She shared a question that had been addressed to the county legal counsel, and the response.
Question: May a county with a home rule charter impose a tax without prior voter approval?
The short answer is no, as to property taxes, but generally yes, as to other types of taxes.
Under Oregon Constitution Article XI, section 11g, all counties seeking new or additional ad valorem property taxes against real property on or after December 5, 1996 must get voter approval. ORS 203.055, requiring voter approval for a county ordinance imposing or providing an exemption from taxation, does not apply to home rule charter counties.
Unless otherwise restricted in the charter, a general grant of powers "to have authority over matters of county concern to the fullest extent granted or allowed by the laws of the United States and the State of Oregon, as if each power comprised in that general authority were specifically granted by the charter", includes the power to adopt an ordinance for most types of taxes.
Examples of restrictions on taxes in charters include Josephine County Charter, prohibiting a county income tax, and Lane County Charter, limiting county income tax, if imposed, to 2% and restricting uses. Voters in home rule counties have the right to referendum on any ordinance, including one imposing a county tax.
Carlson also included a link to a lengthy (125 page) "County Home Rule in Oregon" study that was prepared for the Oregon Association of Counties by Tollenaar and Associates in 2005.
I fired up my web browser's search function, typed in "tax," and speedily read through the 88 uses of that word in the document.
My admittedly non-lawyerly (since I'm not one) conclusion is that the county legal counsel may be correct when she says that "generally" a home rule county can impose non-property taxes, but it seems to me that this requires a vote of the people.
So I think the legal counsel is wrong about home rule counties that operate under a charter not being subject to the Oregon law (ORS 203.055) requiring a vote on tax measures.
Page 21 of the study says:
To summarize the effect of statutory county home rule, ORS 203.035 delegates in the most comprehensive terms local legislative authority over “matters of county concern.” The delegation has some restrictions, however.
County ordinances enacted under the delegation that make changes in the form of county organization or that impose taxes or exemptions from taxation must be submitted for a referendum vote of the people. Also, such ordinances may have no effect inside incorporated cities without the consent of the city governing body or city voters. [emphasis added]
This sure seems to say that a Board of Commissioners in a home rule county can impose a tax, but it has to be submitted for a vote of the people. Checking the actual relevant Oregon Oregon laws bolsters this interpretation.
ORS 203.030 says:
As used in ORS 203.030 (Definition for ORS 203.030 to 203.075) to 203.075 (Payment of assessments in installments), "governing body" means the representative body vested with legislative power by statute or charter. [1973 c.282 §1]
Thus this defines "governing body" as used in ORS 203.030 - 203.075 to mean either a county governed by state statute or a home rule charter. Meaning, the laws in those sections apply to all counties.
Turning to ORS 203.055:
Referral of revenue related ordinance
Any ordinance, adopted by a county governing body under ORS 203.035 (Power of county governing body or electors over matters of county concern) and imposing, or providing an exemption from, taxation shall receive the approval of the electors of the county before taking effect. [1973 c.282 §6; 1975 c.736 §3] [emphasis added]
So it's possible the county legal counsel has confused (1) a home rule county being able to pass an ordinance for a new tax, with (2) that ordinance going into effect. Because it seems like ORS 203.030 and 203.055 require that voters must approve a tax-related ordinance in home rule counties before it takes effect.
Regardless, the 2005 Oregon Association of Counties' study devotes only one short paragraph to the subject of "Exercise of Revenue Powers." That's because there isn't much to say about how home rule counties have used their taxing power.
Oregon counties have made very little use of their home rule powers to raise revenue. Several counties have enacted transient room taxes, two counties (Multnomah and Washington) have real estate transfer taxes, and two counties (Multnomah and Lane) have taxes on car rentals.
Multnomah has a business net income tax, Gilliam charges a major landfill operation a “host fee” that produces general revenue for the county, and Washington County has enacted a traffic impact tax on new development based on the amount of traffic expected to be generated by the type of development.
It's interesting that among the Voter Pamphlet arguments in opposition to Measure 24-292, no one other than the three current county commissioners is arguing that Marion County taxes could be increased without a vote of the people if the charter change passes.
If there was solid evidence that this would happen, you'd think that others would be raising the taxation issue as a reason for voting "no." And it also would seem that there would be tales of how Oregon's nine current home rule counties have raised taxes willy-nilly without allowing voters a say.
Hasn't happened, so far as I know.
I'll end by sharing a few quotes from some old Eugene Register-Guard newspaper stories about Lane County's changeover to home rule back in the 1960s. I came across these in the course of my Google research for this post.
This August 1963 story was titled, "Lane County's Transition to Home Rule a Smooth Operation."
Whereas last fall Lane County department heads generally had a cool outlook towards the proposed charter, the situation now, commissioners believe, is a team determined to make home rule government work.
...Any problems? Although there were many worries about the complex shifting of the sheriff's tax collection division to the Dept. of Assessment and Taxation -- to name just one worry -- no one around the courthouse will now admit to any concern about the transition.
Making changes that will improve county government and make it more accountable to citizens can be threatening to employees who are used to doing things a certain way. However, the Lane County experience shows that moving to a home rule charter isn't difficult.
In May 1968 there was an effort to repeal the Lane County charter. An editorial, "Home Rule Gives Us More Local Control," argued why citizens should vote to keep the home rule charter -- which is what happened.
But if home rule is abandoned... In Lane County government of the people, by the people and for the people would be set back one important step from local voting booths. Repeal of home rule would be the same as saying, "We don't want the maximum local control state law will allow us -- we'd rather have our county government designed and more completely controlled by the Legislature."
...Repeal would disarm us of our present right to hold our county commissioners accountable for many significant courthouse department actions. It would turn back the clock to the days when buck-passing was the acceptable practice in county affairs.
Forty-two years later, these are still good reasons for county residents to vote in favor of home rule. Citizens of Marion County, vote "yes" on Measure 24-292.