County judge to de­cide mill­age case

Cave Springs city at­tor­ney ar­gues city’s 2017 rate le­gal

Northwest Arkansas Democrat-Gazette - - NORTHWEST ARKANSAS - TOM SISSOM

BEN­TONVILLE — Cave Springs city of­fi­cials didn’t do much, but they did just enough to make their 2017 mill­age rate le­gal, its city at­tor­ney ar­gued Fri­day.

Justin Eich­mann said in Ben­ton County Court state law places al­most no real re­quire­ments on cities in es­tab­lish­ing their an­nual prop­erty tax mill­age. He read through a list of re­quire­ments for other ac­tions, from an­nex­a­tions to in­creas­ing sewer rates, and pointed to state law pro­vi­sions re­quir­ing or­di­nances or res­o­lu­tions be adopted in very par­tic­u­lar ways. In the state law re­gard­ing the city’s prop­erty tax mill­age, the law only re­quires the city coun­cil to “make out and cer­tify” by “a con­cur­rence of the ma­jor­ity” the city’s mill­age rate.

“That is the law,” Eich­mann said. “That is what is re­quired of the city. A res­o­lu­tion or an or­di­nance is not re­quired.”

Eich­mann pro­vided ex­am­ples of other Arkansas

towns and cities no­ti­fy­ing their county clerks of mill­age rates by phone, by email or by let­ter. Cave Springs’ City Coun­cil demon­strated its in­ten­tion to keep the mill­age at the same rate in the city’s bud­get, which showed nearly $400,000 in rev­enue, he said. The coun­cil dis­cussed and re­jected low­er­ing the mill­age, ac­cord­ing to min­utes of a coun­cil meet­ing, and ap­prov­ing the bud­get showed the coun­cil meant to keep the rate the same in 2017 as it was in 2016, he said.

“It’s our con­tention, judge, that Cave Springs when they made that vote to lower it, af­ter that failed, their in­ten­tion was to leave it,” Eich­mann told County Judge Barry Moehring, who heard the case.

Ge­orge Spence, rep­re­sent­ing Trea­surer Deanna Rat­cliffe, Col­lec­tor Gloria Peter­son, and County Clerk Tena O’Brien, ar­gued the city had a more af­fir­ma­tive duty to show what mill­age rate it chose to levy.

“I think there has to be some writ­ten record some­place show­ing that there was enough peo­ple there to pass it and they passed it,” Spence said.

The county of­fi­cials named in the fil­ing have a duty to en­sure the city’s mill­age is en­acted ac­cord­ing to law, Spence said. The state Con­sti­tu­tion gives county courts ju­ris­dic­tion over ques­tions in­volv­ing mill­age is­sues, he said.

O’Brien re­quested the 2017 mill­age from the city last year. Ni­cole Fer­gu­son, the mayor’s as­sis­tant at the time, sent the same res­o­lu­tion as the pre­vi­ous year ex­cept with a dif­fer­ent res­o­lu­tion num­ber.

In March, O’Brien was con­tacted by an in­di­vid­ual who ques­tioned the city’s mill­age, ac­cord­ing to court doc­u­ments. Af­ter the ques­tions were raised, the county stopped dis­tribut­ing the money col­lected on the Cave Springs mill­age. The county of­fi­cials asked for the County Court to de­cide whether the city prop­erly adopted the mill­age and the amount, to de­ter­mine what they should do with the rev­enue and they be dis­missed from any li­a­bil­ity to the city.

Eich­mann and Spence agreed the city’s re­quire­ments are min­i­mal. They dis­agreed on whether the city had met those re­quire­ments.

“I think you have to have some show­ing of an af­fir­ma­tive vote,” Spence said. “There has to be some sort of writ­ten record of that. It has to be clear and that writ­ten record, what­ever it is, has to be de­liv­ered to the Clerk.”

Eich­mann said Moehring would have to de­cide if the city com­plied with the law or not.

“My ar­gu­ment is we just barely got over the line,” he said. “Ge­orge’s is that they didn’t. Your de­ci­sion has be be where is the line?”

Moehring told the par­ties he would re­view their fil­ings, the state laws they cited, and the tes­ti­mony from Fri­day’s hear­ing and make a de­ci­sion. He didn’t set a time­line for that de­ci­sion.

Eich­mann and Spence agreed the city’s re­quire­ments are min­i­mal. They dis­agreed on whether the city had met those re­quire­ments.

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