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Revisiting the “Uninterrupted Continuation” EMS Levy with an Informal Attorney General’s Opinion


February 4, 2013 by Judy Cox
Category: Emergency Medical Services

Revisiting the “Uninterrupted Continuation” EMS Levy with an Informal Attorney General’s  Opinion

On May 11, I wrote a blog post discussing new legislation (SB 5381, ch. 115, Laws of 2012) that makes it easier to renew an emergency medical services (EMS) levy. Recently, MRSC received an informal attorney general’s opinion [1] that confirms part of our previous analysis and offers a different opinion on another part.

The new law allows local governments to pass an “uninterrupted continuation” of a 6- or 10-year EMS levy with a simple majority vote. Previously, such an action required 60 percent voter approval with a voter turnout of 40 percent of those voting in the last general election.

In that blog, I said that, in analyzing the legislation, MRSC consultants had raised two questions about what tax rate could be used in a “continuation levy,” given that the language in the new legislation was silent about the tax rate:

If, for example, the original levy rate for the 6- or 10-year levy was 40 cents per thousand dollars assessed valuation (AV), does that mean the ballot measure for the “continuation” can only propose a rate of 40 cents or less? Here’s another example.  The original levy rate for a 6- or 10-year levy was 35 cents, but the current rate is 23 cents because the assessed valuation of the taxing district was increased since the last election. Does that mean the levy rate in the ballot measure for the continuation levy can be no more than the current rate, 23 cents?


We consulted with the folks in the Property Tax Division of the Department of Revenue and they, in turn, consulted with legislative staff and, as we reported in the blog, the answer we received was, essentially, “yes” for the first question and “no” for the second question. “[T]heir interpretation is that the new tax rate is not an issue. It can be as high as 50 cents per thousand dollars AV, the maximum allowed under RCW 84.52.069 no matter what the current rate is or what rate was in the ballot measure for the expiring levy,” I reported.

Now, however, in the informal AG opinion that we have received, the author agrees with one answer and disagrees with the other.

How the AG views these issues 

One of the questions asked by Rep. Pearson, as paraphrased by Mr. Bashford in the opinion, is:

If a taxing district receives voter approval to continue an emergency medical service levy for an additional multi-year term as permitted by RCW 84.52.069(2), is the district's tax collection in the first year of the renewed multi-year term limited by the one-percent growth rule set forth in RCW 84.55.010?


In answering this question, Mr. Bashford quotes RCW 84.52.069(9), which provides that “the limitation in RCW 84.55.010 does not apply to the first levy imposed pursuant to this section following the approval of such levy by the voters pursuant to subsection (2) of this section.” He then states,

I conclude that a continuation levy falls within the terms of subsection (9) because the voters' approval of a continuation levy constitutes "the approval of such levy ... pursuant to subsection (2)[.]”  Because voter approval of a continuation EMS levy excludes the first imposition of that levy from the levy lid, a taxing district may collect the full voter-approved rate in the first year of the continuation levy's multi-year term, even if doing so entails more than one percent growth over the EMS property tax dollars collected in the final year of the expiring multi-year levy.


[Emphasis added.]

In other words, his answer to question 1 in bold type is “no,” and his analysis agrees with the answer we provided to the second question about tax rates in the previous blog.

There I asked about an example in which the original levy rate for a 6- or 10-year levy was 35 cents and the current rate was 23 cents because the AV in the district had increased since the initial election. Did that mean the levy rate in the ballot measure for a continuation levy could be no more than the current rate, 23 cents? Using Mr. Bashford’s reasoning, the answer to this specific question is “no” also. The taxing district may levy the full voter-approved rate (35 cents) in the first year of the continuation levy’s multi-year term.  And, yes, although I did not mention it before, the amount of this levy, at a rate of 35 cents, will certainly be more than one percent higher than the amount of last year’s levy,  when the rate was only 23 cents.

Later in his answer to this same question, Mr. Bashford mentions that Rep. Pearson also asked about a situation in which “a taxing district, having previously received voter authorization to impose an initial multi-year levy for less than the statutory maximum rate[2], might simultaneously seek to continue the levy and to raise the authorized levy rate.”

Mr. Bashford says this would not be an “uninterrupted continuation” of the prior levy, even if they are “uninterrupted” in time. “To qualify as a ‘continuation’ of the first levy, the second levy must prolong the same levy rate previously approved by the three-fifths majority of the voters in the initial multi-year levy.”

For the example I proposed, this means that, if the initial levy rate was 40 cents, then the rate in the continuation levy can be no more than 40 cents. This answer is at odds with that of the legislative staff consulted by DOR, who said that the rate of the continuation levy could be as high as 50 cents.

Mr.Bashford’s opinion makes sense to me. If this were not the case, an entity could theoretically put the first or initial 6- or 10-year EMS levy on the ballot at some low rate that they think the supporters are likely to pass with a 60 percent vote. Then, the entity could do a continuation levy at a higher rate with a simple majority vote, with the result that the levy rate would be increased without a 60 percent vote.

Conclusion:

Note that this informal attorney general opinion is not legally binding in any way. However, if an entity is thinking of raising the rate, I suggest it may want to pay attention to Mr. Bashford’s reasoning.
 

 

[1] Jonathon Bashford, Assistant Attorney General, to Representative Kirk Pearson, dated November 30, 2012.

[2] The statutory maximum rate in RCW 84.52.069(2) is 50 cents per thousand dollars AV.

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