An assortment of local political observers went public last week in support of the legality of Thurston County’s proposed rural car tax. Their defense of the car tax is fascinating, but it is lazy and wrong.
We wrote last week about Thurston County’s proposed illegal car tax and wrote again about the opposition to the car tax by local residents at the public hearing. After the Olympian wrote a fawning and uncritical review of the car tax proposal and did a better job
reporting on the hearing itself a few days later, several local commentators challenged claims that the proposed tax was illegal. This included a short article by local talk show host and long-time writer Ken Balsley with whom I often tend to agree. The supporters of the tax also included local politicos like former Lacey Mayor and current North Thurston School District Board Director Graeme Sackrison. (Correction: at this time, Mr. Sackrison has confirmed via Facebook post that he does NOT support this tax).
Due to the legal confusion among folk who should (and usually do) know better, it is worth clarifying why this proposed tax is illegal. Against our better judgment we will also outline the three actions that could be taken to make the proposed illegal tax a “legal tax.”
Why this proposed tax is illegal
None of the Thurston County Commissioners live within the newly incorporated Thurston County Transportation Benefit District (TCTBD), which is the primary reason the proposed tax is illegal. All taxing districts are managed by a Council, Commission or Board of elected officials who live in that district. All of them. No exceptions. Multiple statutes deal with taxing districts individually by category. Examples of this are RCW 35.57.010 (3)(c) and RCW 85.38.070 (3) and (6) . However, it is true in the state law that was passed to create Transportation Benefit Districts, this legal fact is not specified (although it is implied). Fortunately, the statute doesn’t have to specify this fact because state law (and recent legal precedent) is very clear.
Specifically, RCW 42.04.020 “Eligibility to Hold Office” clearly states:
“That no person shall be competent to qualify for or hold any elective public office within the state of Washington, or any county, district, precinct, school district, municipal corporation or other district or political subdivision, unless he or she be a citizen of the United States and state of Washington and an elector of such county, district, precinct, school district, municipality or other district or political subdivision.” RCW 42.04.020
This statute was recently reaffirmed in a local Thurston County 2012 lawsuit (Parker v. Wyman), which was filed to challenge the eligibility of candidate (and now Superior Court Judge) Christine Schaller who had filed to run for Superior Court Judge that year. Thurston County Auditor (and now Washington Secretary of State) Kim Wyman was named in the lawsuit because the plaintiff was challenging the auditor’s decision to allow candidate Schaller to be on the ballot since she did not reside in Thurston County at the time. The court affirmed that ALL elected officials EXCEPT judges must live within the boundaries of the district for which they are running for office.
The TCTB is a separate and independent municipal corporation. It is a unique taxing district. This is clear both under state law and the incorporation documents (attached below) It is not just another division of Thurston County for the Commissioners to run any way they want.
How come the other Transportation Benefit Districts don’t have this problem?
The most common (and the laziest) argument made for the legality of this proposed rural car tax is this. Everyone else is doing it, why can’t the Thurston County Commissioners?
Two other Transportation Benefit Districts exist within Thurston County already. These are located in Olympia and Tumwater. Each TBD conforms to the same boundaries as the existing respective city boundary. The city council members in both cities sit on both the city council and the board of the TBD. This is legal and the taxes they charge are legal (if misguided and wasted) because the elected officials all live within the boundaries of their respective district. According to our research, all the other TBDs around the state have similar arrangements. It is only Thurston County who chose to take the road less travelled and the one with a few more legal landmines.
The statute governing TBDs (RCW 36.73) allows for a multi-jurisdictional boundary (covering combined county and city jurisdictions), however, it also provided for very detailed and explicit representation requirements on the final municipal corporate board so that each municipality had proportional representation on that board. This also implies that it was the intention of the legislature that the board members would all live within the taxing district itself.
Because, as referenced in the original ordinance (link here) forming the district, Thurston County was not able to politically convince the other jurisdictions to join in a multi-jurisdictional TBD, Commissioners Sandra Romero, Cathy Wolfe, and Karen Valenzuela decided to create a rural county district only. None of the current Thurston County commissioners live within the taxing district boundaries. Any creation of a new tax using the TCTBD is not legal.
Creating the district was legal, but imposing the tax is illegal
There is some nuance in this argument because it does appear that the formation of the TCTBD is legal (if misguided and a poor policy choice). However, since none of the elected officials live in the district, then any effort by them to do anything with the district would be illegal.
Which creates a quandary. Quandaries, like quagmires are not uncommon in recent Thurston County Commission history.
How to make it legal. Three options
Against our better judgment, because we do not support the tax or the district, we will still do our civic duty to help Thurston County understand how to stop violating the law.
First, since this TCTBD is a separate municipal corporation from Thurston County itself, there is a clear legal requirement for independent counsel. This is logical because of the obvious self-dealing conflict of interest problems. However, it is also spelled out in the TCTBD charter itself (section 5.06). Thurston County needs to do this quickly because they have obviously been giving themselves poor legal advice up to this point, which opens up the county to litigation and the staff attorneys to bar complaints.
The three options the commissioners have to make the proposed tax legal are as follows:
- All three commissioners can move into the taxing district, or
- They can initiate the process to create a new taxing district board comprised of elected officials who live in the district, or
- They can lobby to change state law
Since it is unlike all three commissioners would move anytime soon, the Thurston County Commissioners could initiate the process for the TCTBD to set up a new three or five member commission of elected officials to represent the residents of this new taxing district. They can be elected on a staggered term as is traditionally found in all taxing districts. For example, if five members – three would have four year terms, and two would have two year terms the first cycle. After that, all would have a full four year term staggered, three one election cycle, two others the next. This isn’t rocket science.
Alternatively, Thurston County Commissioners Romero and Wolfe, being former legislators themselves, can take the final option and lobby their former co-workers in the state legislature to change the law and the state constitution to allow local elected officials to run for office in districts where they don’t live. This is a tough road to travel, but Thurston County usually doesn’t pick the easy way.
In conclusion, there are legal paths to impose the desired tax. The Thurston County Commission has so far failed to take them. Due to a combination of ignorance, poor legal advice, and no shortage of incompetence, Thurston County has chosen the wrong path.
We have done our civic duty, and the county has the opportunity to avoid a class action lawsuit next year. Better yet, the citizens should have a reprieve from a poorly planned illegal tax. A new commission can just dissolve this silly effort and start working to use the transportation dollars more efficiently in the future. The choice, ultimately, rests with our elected officials, but at least ignorance can no longer be Romero, Wolfe, or staff’s excuse.
Our Constitution begins with the phrase “we the people.” It was the founder’s intent that government be created by the people, to serve the people. It wasn’t their intention for the people to serve the government. It was always intended that government which failed to serve the people should be “altered or abolished.” Until we return to the founder’s intent, we remain We the Governed…