Opinion from AG?s office calls special assessment into question

The Marion County Public Safety and Law Enforcement Center Committee thought it had the financing worked out for a new law enforcement complex, but members learned at the Tuesday, Aug. 11, meeting that the option of implementing a special assessment had hit a snag with the Kansas Attorney General?s office.

The snag, or ?speed bump? as one member put it, was prompted by Marion County Attorney Susan Robson?s request for an opinion July 17 about financing.

In her letter to Mary Feighny, assistant attorney general, Robson stated her question as: ?Does KSA 19-101a and KSA 19-101m allow Marion County to pass a resolution to finance a law enforcement facility based upon a per residence fee??

When the group formed in late April, most of the members would not go along with a new facility if it meant using property tax or sales tax to fund the building.

In response, Michael Smith, assistant attorney general, stated the proposed revenue-raising method was labeled a ?fee.?

The court, he wrote, has considered the question of what are fees and what are taxes.

?The distinction between a fee and a tax does not depend upon its label, but rather on the nature and function of the charge,? he stated.

The court determined a tax is a forced contribution to raise revenue for the maintenance of governmental services offered to the public.

In the court?s determination, it was further stated that in contrast, a fee is paid in exchange for a special service, benefit or privilege not automatically conferred upon the general public.

In conclusion, Smith stated that ?given the nature of the proposed project, construction of a jail, the term ?fee? is incorrect.

?The levy of a uniform amount for a statutory duty is a tax. The county is required to maintain a jail for the safe-keeping of prisoners lawfully committed. Therefore, any method for financing a new jail and dispatch center must be considered a tax.?

The attorney general?s office further recommended the group consult with bond counsel to discuss appropriate procedures and options for raising the necessary funds.

In earlier meetings, the special assessment for the jail complex would be no more than $10 per month to fund the cost for a new facility and each of the 5,900 homes on the tax rolls could pay for a total yearly collection of $660,000.

?The special assessment would sunset once the law enforcement facility was paid off,? a member said.

Commissioners Dan Holub and Bob Hein attended the July 15 meeting and listened as committee members talked about the special assessment,

?Our motive is that we think the special assessment is affordable and all Marion Countians will pay for it,? one member said.

?Everyone in the county benefits from 911 dispatch, emergency management and even a jail facility.?

By levying money from each household, each person pays for benefits, a member said.

?Thanks for all the work you have done,? Hein said.

At the July meeting, Danny Flynn, chairman of the Marion County Public Safety and Law Enforcement Center Committee, and the rest of the group had hoped to have a firm plan about an architect, the size of a facility and the way to pay for it by Thursday, Aug. 20.

After news regarding the special assessment snag, one group member said he would continue to look into the matter.

Last week?s meeting also included estiamtes from two architectural firms who came up with law enforcement complexes at $1.5 to $4 million to build.

The next meeting?s agenda will be to decide on one of two architects to continue working with the group and possible news regarding the attorney general?s opinion and bond counsel discussions.

For questions or input regarding the jail committee, call Sheriff Robert Craft at 620-382-2144.

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