Law does not allow for a petition to reverse tax vote

Christopher Maher, Alice Echo-News Journal

Officials with the City of San Diego learned last week that information they had provided to voters regarding the repeal of a vote to establish a property tax in the city was not correct.

On Aug. 14, the San Diego City Council voted unanimously to establish a $1.25 per $100 valuation ad valorem tax, the first ever property tax for the city.

The purpose of the tax is to fund a $4 million street and drainage repair project in the city, with a requirement that at least 90 percent of the funds raised from the tax be dedicated to the project.

At the time of the vote, city officials said citizens who oppose the new ad valorem tax would have until Sept. 4 to bring a petition signed by at least 10 percent of registered voters to the city. If a petition were filed with the city, the city would be required to hold an election to seek voter approval, officials said.

Interim-City Manager Ernesto Sanchez said Friday the city began reviewing the steps required to hold an election on the property tax after officials received word last week that a petition to rescind the council's vote was being circulated in town.

In researching the issue, the city was informed by the Texas Municipal League, an entity that provides legal counsel for municipalities, the city is not required to hold an election to set an initial tax rate, even if a petition is filed.

"Unlike adopting sales taxes, setting a property tax (including the first tax adopted by a city) does not require an election of the citizens," TML Legal Counsel Laura Mueller wrote in a letter to city officials. "The council simply adopts the tax by ordinance prior to Sept. 30 of each year."

In addition to that information, Mueller said city officials could not call for a vote from the public on the establishment of a property tax, even if they wanted to.

"Not only do property taxes not need to be submitted to the voters, the adoption of a new property tax cannot be submitted to the voters," Mueller wrote. "Citizen approval of the adoption of property taxes is neither required, nor is it permitted."

Mueller added that because the laws regarding the establishment of tax codes are dictated by the state, local entities are prohibited from changing them.

Mueller did indicate the city could conduct an informal poll or survey of citizens regarding the establishment of a city property tax, but such a poll would not be legally binding on the council.

"While the will of the citizens is always an important factor, there cannot be an election on the issue and only the city council can decide," Mueller wrote.

Sanchez said the city had initially stated that a petition could rescind the vote based on information the city had received in a similar situation.

"We were going on the advice of our old bond attorney," Sanchez said. "But this is new territory for us."

Sanchez said he understood the confusion might irritate some voters, and said that if a petition is filed it will still be forwarded to the council for consideration.

"We know that a lot of citizens are going to be upset, but there's nothing that I can do at this point," Sanchez said. "(The council) will take it under advisement."