Eric Eisnaugle (Mayor's Appointee) Paul Rosenthal (District 5 Appointee)

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1 TAX COLLECTOR'S OFFICE FEASIBILITY TASK FORCE Legal Sub-Committee DATE: March 11, 2013 MEMBERS PRESENT: MEMBERS ABSENT: OTHERS PRESENT: CALL TO ORDER: Eric Eisnaugle (Mayor's Appointee) Paul Rosenthal (District 5 Appointee) None Lila McHenry, Esquire, Assistant County Attorney Jane Osborne, Administrative Assistant-Clerk to Task Force Fred Winterkamp, Manager, Fiscal &Business Services Stephanie Taub, Assistant Manager, Fiscal &Business Services Honorable Scott Randolph, Tax Collector Andrew Bell, Tax Collector's office 9:02 a.m. DISCUSSION: Legal Sub-Committee Chair Rosenthal began the meeting discussing the County's March 5, to the Task Force members along with the memos attached addressing a couple of legal issues and responses. Ms. McHenry reiterated that Orange County staff is not there to advocate the abolishment of the constitutional offices and the creation of charter offices. Ms. McHenry stated further the Orange County staff's role is to assist the Task Force members to reach a fully informed decision based on an accurate representation of the law and facts. Ms. McHenry stated there were two issues that came up in the February 14, 2013 Task Force meeting that Orange County felt did not fully reflect the law. The first issue was the DMV issue and the assertion that if the constitutional office of the tax collector were to be abolished that the citizens of Orange County would be forced to go to other counties to obtain driver's licenses. Discussion took place regarding the assertion that portions of statutory language imply that Orange County residents will be unable to receive certain DMV services under any form of governance other than the current elected Constitutional Officer. Ms. McHenry stated there is statutory language that mandates that the DMV shall transition services to constitutional officers and that constitutional officers shall accept the transfer. The statutory language is not a prohibition but an omission. Ms. McHenry further stated the legislative intent language which states that driver's license functions may be transferred to charter tax collectors as may be determined by the Department, there is legislative intent to allow for transitions to charter tax collectors' offices. It is up to the Department. Ms.

2 McHenry stated under the rules of statutory construction you are supposed to view statutory provisions in harmony with each other so under the rules of statutory construction you must look at both of those provisions and you do not read one in a way that would render the other provision meaningless. To state there is a prohibition in that statutory language would render the legislative intent language meaningless. Ms. McHenry stated there were two bills in connection with the transition of driver's license functions. There was the 2010 and 2011 legislation. The 2010 legislation contained the provision regarding the charter tax collectors. The 2011 legislation stated the constitutional tax collectors shall accept the transition. Ms. McHenry stated in conjunction with preparation of the Task Force, support staff contacted a couple of charter tax collectors and county attorney offices and, in particular, Volusia County, stated in an that the DMV asked Volusia County asked if they would take over the driver's licenses and Volusia County declined. Ms. McHenry believed the issue on the transition of the DMV functions is not a legal issue, but rather, a timing issue. DMV is already planning to close some offices in Orange County. Mr. Rosenthal asked when the DMV was planning on closing those offices. Ms. McHenry believed it was in Legal Sub-Committee Chair Rosenthal assumed it would be before the Board of County Commissioners or any charter amendments in this particular matter. A discussion was held on constitutional or charter tax collectors taking over driver's licenses among Legal Sub-Committee Chair Rosenthal and Mr. Eisnaugle. Mr. Eisnaugle also concurred that he did not believe this was a legal issue. Mr. Eisnaugle stated that if this issue came down to the one issue that would make or break changing the tax collector's office, it would seem that someone from the County could get an opinion from the Attorney General's office or in a possible declaratory action (which could be extreme) to clarify the issue, if it was needed. Ms. McHenry said the Attorney General's office would look at the legislative intent language. Legal Sub-Committee Chair Rosenthal stated the only reason to get an AG opinion would be if the department said no. A discussion was continued on the legislative intent language and driver's license transitions. Mr. Eisnaugle recommended that the appropriate sub-committees, financial or operational, look at the operational and financial issues that may arise from a charter tax collector in Orange County taking over the driver's license functions. The next legal issue discussed was placing the Tax Collector duties under the Comptroller and/or partial separation of duties under the Comptroller. It was asserted by Tax Collector Randolph that the Florida Constitution prohibits placing pieces of a constitutional office under another office, and that the it requires that all the duties be placed under that office. A discussion followed regarding the memo from the County Attorney's office with some further classification that the Comptroller already combines tax collection, fund custodian and auditing functions. The memo noted that in Article VIII, Section 1(d) of the Florida Constitution specifically provides that: "...when provided by county charter or special law approved by vote of the electors of the county, any county officer may be chosen in anothey manner therein specified, or /~

3 any county office nay be abolished when all the duties of the office prescribed by general law are transferred to another office. When not otherwise provided by county charter or special law approved by vote of the electors, the clerk of the circuit court shall be ex officio clerk of the board of county commissioners, auditor, recorder and custodian of all county funds. Thus, under the language of the Florida Constitution, audit functions and fund custodian functions can be combined in the same constitutional office of Clerk of the Court. Also, the Comptroller's office already performs tax collection functions for the Tourist Development Tax and the Public Service Tax. The transfer of pieces of the constitutional office has already taken place in Orange County. The memo points out that in the case of Orange County, pieces of the constitutional office of Clerk of the Court are already split between the Clerk and the Comptroller pursuant to Article V, Section 16 of the Florida Constitution and Chapter , Laws of Florida. The Constitution does not prohibit transfer of certain functions of one office to another. As discussed, if the Task Force were to recommend transfer of some duties to the Comptroller but not others the validity of the transfer would depend on the specifics of the recommendation. However, the assertion that the Florida constitution "prohibits" placing pieces of one constitutional office under another office fails to acknowledge the broad home rule powers of charter counties. The fact that the constitution states that all the duties "may be transferred to another office" is not a prohibition against transferring those duties to one or more offices. Legal Sub-Committee Chair Rosenthal concurred with Ms. McHenry's analysis of splitting functions of a charter tax collector as well as the functions of the Comptroller. Legal Sub-Committee Chair Rosenthal believed it was good information to have in order to provide to the Task Force at the time they begin their deliberations. Mr. Eisnaugle stated he believed the legal argument that was presented made sense, but since there is no case directly on point there are always attorneys for both sides to make an argument. Mr. Eisnaugle agreed with Legal Sub- Committee Chair Rosenthal that this issue may not even be a bridge they need to cross at this point. It is possible, however. A discussion ensued concerning internal and external audits by the Comptroller. The next subject the Legal Sub-Committee addressed was the issue of abating taxes and whether the Tax Collector can abate taxes now and does this change if the Tax Collector were to become a charter officer. Legal Sub-Committee Chair Rosenthal stated he did not believe the Tax Collector had the ability to abate any taxes. Ms. McHenry stated property taxation is set out by statute and preempted to the state. Ms. McHenry stated Orange County Government does not have the authority to abate taxes. Ms. McHenry stated legislation has stated there are certain tax exemptions that counties can adopt at the local level. However, when taxes are due, the Board of County Commissioners does not have the authority to state, other than early payment provisions, that taxes do not have to be paid or pay less than what is due. A discussion ensued on the abatement of taxes in bankruptcy court and specifically referenced Tax Collector Randolph's February 2013 presentation, 3

4 Ms. McHenry stated the County Attorney's office does not represent the Comptroller's office. The Comptroller's office has separate counsel. A discussion on payment of back taxes ensued. Mr. Eisnaugle asked if the support group could look at the issue of collection of owed taxes and how the finance aspect of that happens. Legal Sub-Committee Chair Rosenthal discussed tax certificates on properties and liabilities. Ms. McHenry stated this was not an issue that the County Attorney's office gets involved in, but she would look into an answer. Mr. Eisnaugle stated that since the issue was raised by the Tax Collector, this indeed was an issue to look into regarding back taxes. The next legal issue Legal Sub-Committee Chair Rosenthal brought to the committee was would a court uphold a charter provision and keep the Tax Collector wholly independent from the Board of County Commissioners. Mr. Eisnaugle stated that was a big discussion at the last meeting. Mr. Eisnaugle stated Mr. Tedder, the Tax Collector from Polk County, stated yes the Tax Collector could be wholly independent, but then he focused on why the Task Force would want to do that and if there was a compelling reason to do that. Mr. Eisnaugle stated that to date no one has explained a legal argument as to why it could not be done. Mr. Eisnaugle stated based on Mr. Tedder's response, his personal analysis and no legal authority in opposition, he believed this was anon-issue. A discussion on an independent charter tax collector continued. Legal Sub-Committee Chair Rosenthal discussed term limits and if it was put into the policy to do term limits on the Tax Collector's office, would the Tax Collector's office have to be a charter office. Ms. McHenry concurred and stated yes term limits would be a charter provision. A discussion on term limits and budgets ensued regarding a charter tax collector. The final issue brought to the committee by Legal Sub-Committee Chair Rosenthal was the fees being charged regarding the local and municipal governments. Mr. Winterkamp stated he spoke with the Office of Management and Budget (OMB). OMB stated Florida governs how the fees can be charged and how the collections get paid. Florida Statute establishes the procedure for counties to use in calculating the commissions to be paid to tax collectors. The Board of County Commissioners pays commissions to the Tax Collector in accordance with Florida Statute A discussion was held on taxes, fees collected and ad valorem revenue impact. Legal Sub-Committee Chair Rosenthal stated he did not have any additional issues to discuss. Mr. Eisnaugle stated he also did not have any legal issues to address at that time. Mr. Eisnaugle stated he believed they reached a conclusion on the legal issues and the remaining issues are policy that hopefully the Operations and Financial Sub-Committees will study so they can make recommendations to the Task Force. Mr. Eisnaugle asked staff if the Comptroller's office should address the Task Force. Mr. Winterkamp stated the Comptroller's office and specifically, Jim Moye, stated in previous meetings that if the Task Force needed the Comptroller's office to speak at a meeting they would do so. Mr. Eisnaugle stated to the extent the Tax Collector's functions were moved to the Comptroller's office what are the possible options, legally. Mr. Eisnaugle stated it may be prudent to have the Comptroller's office speak to the Task Force. Mr. Winterkamp agreed to arrange for the Comptroller to speak to the Task Force. Legal Sub-Committee Chair Rosenthal stated one of the questions would be are their functions in the Tax Collector's office that the Comptroller's office can do and do efficiently? A i~

5 discussion ensued on the Comptroller's office taking over the functions of the Tax Collector and that feasibility. Mr. Eisnaugle asked if the Comptroller's office could take a basic look at whether this is possible, efficiency issues and human resource issues. Mr. Eisnaugle asked if the Comptroller's office could speak at the April meeting. Mr. Winterkamp stated he would arrange this for the April meeting if possible. Legal Sub-Committee Chair Rosenthal brought up partial consolidation. He stated hypothetically if the Task Force was to say purchasing (or any other function) should be brought under the County as opposed to the Tax Collector because it is more cost efficient, is this possible? Could a charter provision be written? A discussion on consolidated functions ensued. Mr. Eisnaugle believed if it was a charter office then yes the provision could be written and partial functions consolidated with Orange County. Mr. Eisnaugle stated he believed Operations and Finance were already looking at these issues to identify potential savings. Legal Sub-Committee Chair Rosenthal confirmed that he would not need to prepare any minutes for the meeting. Mr. Eisnaugle stated Legal Sub-Committee Chair Rosenthal would need to provide a verbal report to the Task Force at the next meeting. Legal Sub-Committee Chair Rosenthal asked Tax Collector Randolph if he would like to add anything to the meeting. Tax Collector Randolph stated he had not yet seen the County memo and could not make comment on same. Tax Collector Randolph spoke to the Legal Sub- Committee and initially addressed tax certificates and confirmed that Legal Sub-Committee Chair Rosenthal was correct in their earlier discussion on tax certificates going to the property tax abatement situation. Tax Collector Randolph stated the tangible property taxes that they do not do tax certificates. Tax Collector Randolph referenced the K-mart bankruptcy. Regarding the real property side it is more of an issue sometimes about what the county wants to take title to. A discussion was held on unwanted parcels and tax certificates. Tax Collector Randolph stated the DMV office will officially close in April, Tax Collector Randolph stated they will be taking over the Courthouse DMV office in June, Tax Collector Randolph stated the $35 million in fees that the tax collector's office collects is not all property tax. He stated the County portion of the property tax fees is about $24 million, statutorily. Tax Collector Randolph stated about $19 million of that is returned to the County. Tax Collector Randolph stated the reason it cost anything is because the municipalities and the school district do not pay any statutory fees despite the fact that the County only represents about 40 Io of the property taxes they collect. The County represents about 95% of the fees paid. Tax Collector Randolph stated the question for the Comptroller is not just the property tax but what is to be done with the tag and title and licenses if you were to roll the tax collector's office into the Comptroller. Mr. Eisnaugle asked Tax Collector Randolph about collections and liens. Tax Collector Randolph stated it comes into play during bankruptcies. Tax Collector Randolph used the example of the litigation with the Parliament House and the timeshares behind the Parliament House being separate units and taxed accordingly. Tax Collector Randolph stated the law changed and the timeshares are now assessed as one property. Tax Collector Randolph stated it is a complicated bankruptcy. Regarding the litigation, Legal Sub-Committee Chair Rosenthal asked 5

6 if Tax Collector Randolph had statutory authority in the context with regard to $4 million of taxes being due and he collects $3 million and if you collect $3 million how does the Tax Collector allocate who gets the $3 million. Tax Collector Randolph stated he has spoken with his legal counsel on this issue. His counsel stated there is vagueness in the law, and it is possible to have that discretion, but it is unclear. A discussion was held on this issue. Mr. Eisnaugle wanted clarification on the word "abate" and that it did not seem like the right word, but more negotiating a settlement once back taxes are in dispute. Tax Collector Randolph concurred. A discussion ensued concerning authority to settle back taxes if the tax collector were a charter office as well as independence of a charter office. Legal Sub-Committee Chair Rosenthal asked if anyone else had any issues or questions. There were none. Legal Sub-Committee Chair Rosenthal adjourned the meeting. NEXT MEETING DATE There is no future Legal Sub-Committee meeting scheduled at this time. MEETING ADJOURNED The Legal Sub-Committee meeting was adjourned at 10:45 a.m. fi Paul Rosenthal Tax Collector's Office Feasibility Task Force Legal Sub-Committee Chairman ~~ I~ Date D

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