attorney general opinion -- letter to Skilling; local option tax; Apr24,2000

Topic Code: L136Local Option Tax (ST)           Document Reference: 00350070

McCown to Skilling, Kossuth County Attorney, 4-24-00; #00-4-2(L)

April 24, 2000

David C. Skilling

Kossuth County Attorney

111 S. Harlan Street

Algona, Iowa 50511

Dear Mr. Skilling:

          You have requested an opinion of the Attorney General with respect to the local option tax law in Iowa Code chapter 422B. Specifically, you ask whether the Board of Supervisors is allowed to paraphrase the language found in a “use change” petition prior to having the “use change” petition issue placed on the ballot in a local option tax election. As explained below, we conclude that the Board of Supervisors can, and in some instances must, paraphrase and supplement the language of the petition prior to having the issue placed on the ballot in a local option tax election.

          You state that the petition in question requested a "re-vote" on the local option sales tax referendum for the purpose of a change of use of the local option tax revenue for the unincorporated area. With your request, you enclose a copy of the petition. The language of the petition reads:

We the eligible electors of Kossuth county petition the Board of Supervisors to call for a Referendum concerning the disbursement of the revenue collected from the 1% local option sales tax in the unincorporated area of Kossuth County and, if passed, to be changed from the current language, where only 20% is property tax relief to; 100% tax relief in the unincorporated areas.

As you indicate in your request, Iowa Code section 422B.1(6) provides that “The election at which the question of repeal or rate or use change is offered shall be called and held in the same manner and under the same conditions as provided in subsections 4 and 5 for the election on the imposition of the local option tax.” Subsection 6 imposes a mandatory duty upon the board of supervisors to call an election when the conditions of the statute are met. Ordinarily the use of the term "shall" is mandatory and imposes a legal duty. Iowa Code § 4.1(30)(a) (1993); Willett v. Cerro Gordo County Board of Adjustment, 490 N.W.2d 556, 559 (Iowa 1992).

          In this instance, the Board was required to submit the question of use change upon receipt of a petition. The “question of use change” of a local sales and services tax must be presented to the electors upon receipt of a petition calling for such referendums in the same manner as is provided in subsection 4. Iowa Code §§ 422B.1(3)(a) and (b), 422B.1(4). See also 1990 Op. Att’y Gen. 93 and 1986 Op. Att'y Gen. 127. Section 422B.1(4)(a) requires that the Board direct the county commissioner of elections to submit the “question of imposition” of the local option tax to the electors upon receipt of a petition. Upon receiving direction from the Board, the county commissioner of elections submits the question of imposition in a ballot proposition according to the requirements of Iowa Code section 422B.1(5). Therefore, the question in this matter becomes what information is the board required, permitted or obligated to provide when it directs that the commissioner of elections submit the question of the use change of the local option tax to the electors.

          Iowa Code section 422B.1(5) sets out what must be specified in the ballot proposition. Under section 422B.1(5) the proposition is required to be in a form prescribed by rules which are established by the state commissioner of elections. The ballot proposition presented to the voters must specify the type and rate of proposed local option tax, the date it will be imposed, the approximate amount of revenues from the tax that will be used for property tax relief and the purpose or purposes for which the remainder of the revenues will be used. Iowa Code § 422B.1(5); Op. Att’y Gen. #97-9-2(L); 1991 Op. Att’y Gen. 50 and 1990 Op. Att’y Gen. 93. Additionally, with respect to the question of use change, Iowa Code section 422B.1(6) requires that the ballot proposition “shall list the present use of the revenues, the proposed use, and the date after which revenues received will be used for the new use.”

          Plainly, the petition in this matter does not contain all the required information required to be placed in the ballot proposition by sections 422B.1(5) and (6). Section 422B.1 does not impose requirements concerning the contents of the petition or specific information to be included in petitions requesting that a local option tax be repealed, increased, decreased or the use changed. Nor does section 422B.1 directly or implicitly impose any criteria on the governing body as to information that should be included in the submission of the question of the use change other than the approximate amount of revenue that will be used for property tax relief and thepurpose(s) for which the revenue otherwise will be expended.

Rules promulgated by the Secretary of State implementing 422B require the governing body to provide the county commissioner (1) the rate of the tax, (2) the date the tax will be imposed, (3) the amount of local option tax revenues that will be used for property tax relief and (4) the specific purposes of the tax revenues other than property tax relief. 721 IAC 21.801(1).1 We have found nothing in chapter 422B that prohibits governing authorities from determining the wording of a proposition.

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          1 Rules promulgated by the Secretary of State implementing 422B require the governing body to provide the county commissioner (1) the rate of the tax, (2) the date the tax will be imposed, (3) the amount of local option tax revenues that will be used for property tax relief and (4) the specific purposes of the tax revenues other than property tax relief. 721 IAC 21.801(1).

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          It is reasonable to conclude that without the information required to be placed in the ballot proposition the commissioner of elections has no guidance as to how the ballot proposition is to be drafted. It is also reasonable to conclude that for the Board of Supervisors to fulfill its duty to notify the county commissioner of elections, it must provide the information necessary to introduce the proposition to the electorate. “Assuming the sufficiency of the petition, there then is imposed upon the county supervisors the same sacred duty to act legally as in meeting any other official requirement made of them by law. When performing this function, the supervisors should not evade or equivocate. Likewise their action in this regard must not be arbitrary or captious.” O’Keefe v. Hopp, 230 N.W. 876, 878 (Iowa 1930).

          It is the opinion of this office that the Board has discretion to determine the language that it includes in its directions to the commissioner of elections to submit the question of use change of a local option tax. However, that discretion is limited by its obligation to accurately identify the nature of the proposed use change of the local option tax. The subject matter for the ballot is obtained from the petition. O’Keefe v. Hopp, 230 N.W. 876, 878 (Iowa 1930). “[W]hile the governing body has discretion in determining the wording of a proposition; the proposition should constitute a fair portrayal of the chief features." See Blum v. Lanier, 997 S.W.2d 259, 261 (Tex. 1999). “[I]t is mandatory that ‘the language of the ballot [be] so plain that there could have been no mistake as to the proposition submitted.’" O’Keefe v. Hopp, 230 N.W. 876, 878 (Iowa 1930) citing Lee Electric Co. v. City of Corning, 199 Iowa 680, 202 N.W. 585, 586. Such is true even though under the circumstances it shall not be necessary to submit the question "in haec verba." Enough should appear, at least, to indicate the proposition. O’Keefe v. Hopp, 202 N.W. 876, 879.

          In summary, it is the opinion of this office that the Board of Supervisors is not required to place on the ballot in a local option election the proposition as stated in the petition. The Board can word the ballot issue. However, while the Board has discretion to determine the language, that discretion is limited by its obligation to accurately identify the nature of the proposed use change as stated in the petition.

                                                            Sincerely,

                                                            VALENCIA VOYD McCOWN

                                                            Assistant Attorney General

VVM:cml