Fulton County May Rebuke State on Millage Rate Increase
(APN) ATLANTA — The Fulton County Board of Commissioners (BOC) is currently considering a set of millage rate increases–one for all of Fulton County, and one for unincorporated South Fulton–that if passed, would rebuke the Republican-controlled Georgia Legislature on its attempts to force deep cuts at Fulton County Government by starving the county of funds.
Fulton County is one of the only Metro Atlanta counties to not have increased its millage rate in recent years during the economic downtown that began in 2008. In 2012, an increase was proposed, but the BOC voted it down after citizens expressed their opposition.
Despite the Board’s previous reluctance to raise property taxes, earlier this year, the Legislature passed HB 604, legislation by State Rep. Jan Jones (R-Milton), which suspended any proceedings by the BOC to increase the ad valorem millage rate in 2013 or 2014.
HB 604 does and and cannot apply to any other Georgia county, but legislators believe it is allowed because of a 1951 Constitutional amendment pertaining only to Fulton County, as discussed below.
HB 604 also requires five of seven commissioners to vote to increase the millage rate beginning in 2015.
However, the County appears to have found a way to pursue a millage rate increase anyway.
According to the Post-agenda Minutes, which have not yet been approved by the Commission, during its June 19, 2013 meeting, the BOC voted six to one to approve the staff’s “recommended response to House Bill 604 (Fulton County Millage Rate) and request adoption of an ordinance pursuant to the Home Rule provisions of the Georgia Constitution Repealing Act 135 (House Bill 604) adopted by the 2013 Georgia General Assembly.”
The County is basing its response on county “home rule” provisions contained in Article IX, Section II, Paragraph I, subparagraph (b) of the Constitution of the State of Georgia, which allow a county to repeal or amend virtually any law imposed upon the county by the state legislature.
The provision, under Georgia’s Home Rule law for counties and municipalities states: “Except as provided in subparagraph (c), a county may, as an incident of its home rule power, amend or repeal the local acts applicable to its governing authority by following either of the procedures hereinafter set forth.”
“Such local acts may be amended or repealed by a resolution or ordinance duly adopted at two regular consecutive meetings of the county governing authority not less than seven nor more than 60 days apart. A notice containing a synopsis of the proposed amendment or repeal shall be published in the official county organ once a week for three weeks within a period of 60 days immediately preceding its final adoption,” the provision states.
“Such notice shall state that a copy of the proposed amendment or repeal is on file in the office of the clerk of the superior court of the county for the purpose of examination and inspection by the public. The clerk of the superior court shall furnish anyone, upon written request, a copy of the proposed amendment or repeal,” the provision states.
Commissioners John Eaves (District 1), Robb Pitts (District 2), Tom Lowe (District 4), Emma Darnell (District 5), Joan Garner (District 6), and Bill Edwards (District 7) voted in favor. Liz Hausmann (District 3) voted nay, according to the Post-agenda minutes.
In addition, the BOC voted to move forward on advertising a package several proposed millage rate increases. There were four different votes on four different parts of the package.
The BOC is currently proposing a 2013 General Fund millage rate of 10.211 mills, a decrease of .07 mills; a 2013 Bond Fund millage rate of 0.270 mills, no change from the current rate; and a new Hospital Fund of 1.560, up from zero mills.
Overall, the total county-wide millage rate for 2013 would be 12.041 mills, up 1.490 mills, from 10.551 mills.
The BOC also proposed an increase in the millage rate for the unincorporated South Fulton Tax District, from 10.469 mills, to 12.469 mills, an increase of 2.000 mills.
The vote on the countywide General Fund was five to one, with Eaves, Hausmann, Darnell, Garner, and Edwards voting in favor, and Pitts opposing, and Lowe not voting.
“Commissioner Robb Pitts, District 2, At-Large, voted against Fulton County’s proposed 2013 millage rates, calling it a tax increase in disguise,” Pitts’s office stated in a press release sent to Atlanta Progressive News.
“While I commend staff for this innovative approach, my preference would be to reduce the current millage rate of 10.211 by 1.56 segregating the Hospital Authority’s portion, thereby leaving a total millage of 8.651 so that there will not be a tax increase,” he said.
The vote on keeping the bond rate the same was unanimous in favor.
The vote on creating a new countywide Hospital Fund was four to two in favor. Eaves, Lowe, Garner, and Edwards voted in favor. Pitts and Hausmann opposed. Darnell did not vote.
The vote on increasing the South Fulton Tax District rate was Eaves, Pitts, Lowe, Darnell, Garner, and Edwards in favor; and Hausmann voting nay.
The public is invited to a Public Hearing on Wednesday, July 17, 2013, at 10 am in Assembly Hall of the Fulton County Government Center, to discuss the proposed increase. The Board will set the final millage rate at its meeting that day.
Earlier this year, the Legislature had also considered passing HB 541, to increase the Fulton County Homestead Exemption from 30,000 dollars to 60,000 dollars over three years. However, this legislation did not pass.
Had the homestead exemption increase passed, then the proposed millage increase would have had the effect of creating a more progressive property tax structure for Fulton County, because lower-income homeowners would have been shielded from the millage increase by the new homestead exemption.
Therefore, because the homestead exemption increase did not pass, any millage rate increase, as proposed, would be felt more equally across the board.
During the June 19 meeting, Interim County Manager David Ware told the Commission the Legislature’s actions in approving HB 604 were “unprecedented” and “unconstitutional,” and could be repealed under the home rule provisions.
Interim County Attorney Larry Ramsey said the Commission expressed its concerns regarding HB 604 to Governor Nathan Deal in a letter dated April 01, 2013, but the Governor had failed to respond.
“The reality is we’re setting ourselves up for a huge fight–and I’m not saying we shouldn’t fight–on the constitutionality of it,” Pitts said during the meeting.
Eaves said he had received bipartisan “moral support” from other Metro Atlanta county chairs on “how this legislation [HB 604] was a violation or an infringement of home rule.”
However, some supporters of HB 604 as well as at least one legal scholar, say Fulton County cannot use home rule provisions to repeal HB 604, because of a 1951 local constitutional amendment.
According to the legislative record available on the University of Georgia’s GALILEO website, this amendment gives the Legislature the right to prescribe “the date or time when the fiscal authorities of such county shall make or fix the levy of ad valorem taxes and the amount of assessments and other charges to be made for any purpose against property or property owners.” It also gives the Legislature the right to set forth other aspects of the county’s tax collection regime which do not relate to the millage rate.
However, the amendment–which was reaffirmed in a 1986 statewide referendum–does not clearly, specifically enumerate millage rate levels as one of the areas that the State can dictate to the county.
One question the courts will likely need to decide when the issue comes up in what is likely to be future litigation, is whether HB 604–which limits the millage rate for two specific fiscal years–falls under the Legislature’s authority to fix the “the date or time when the fiscal authorities of such county shall make or fix the levy of ad valorem taxes,” or whether it is beyond the scope of that language.