Asked by commissioners if it would be possible to have legislation passed in time for a jail bond question to be put on an April Marion County election ballot, Brookens said it is unlikely it could be passed before next May.
Brookens said he has read the opinion from the Kansas Attorney General’s Office that stated there is no precedent or established legal standing for the anticipated $10 a month per taxing unit fee to build a jail.
He said he has also read consulting attorney Jonathan Small’s letter on the subject. Brookens, who is an attorney, said he agrees that a lawsuit against the fee would likely result if the fee were charged under existing law.
Commission Chairman Randy Dallke told Brookens that the jail committee had completed its work last week and has done everything expected of it. He said it’s time for the county commission to move forward on the committee’s conclusions.
Commissioner Dan Holub said the commissioners realize that a fee wouldn’t replace property tax or sales tax. But, he said, the county is split between persons who are against a property tax and persons who are against a sales tax to finance a jail.
Dallke said the county is charged by statute with providing a jail and appropriate care for prisoners. He said the pressure is definitely on from the State Fire Marshal’s Office to do something about the jail, and the commissioners have no choice but to proceed somehow.
Holub called it an “unfunded mandate” from the state. He said the county must report to the SFMO that it making definite progress toward compliance.
Brookens said that under the state constitution the commissioners are considering a type of tax, not a fee. He said the constitutionality of that tax will be about who is being taxed—both individuals and businesses must be considered, he said.
Anywhere there is not protection for all persons becomes a legal issue, he said.
Holub said under the committee’s conclusion, everybody who gets a tax notice would also get a fee notice—about 8,100 of them from the county.
Brookens said there also must be “due process.” Taxpayers must have their right to speak, and to petition, he said.
Brookens said issues could arise on such things as a husband and a wife receiving separate tax notices, whether the fee is charged to only one household or to each tax notice.
“You’ll have to consider how this gets plugged into the computer,” he said.
Brookens added that the fee has no lien value to the state against real property. With property tax, the county can file a lien against property, and sell it at tax sale, he said.
As an example, Brookens said, out-of-state property owners especially might just refuse to pay a fee with no recourse against them. Bonds may have to be based against mill-levy property tax for bond purchasers to have the confidence in repayment, he said.
Dallke said the committee and the commissioners are thinking a 26- to 40-bed new jail needs to be built. He said the fee would “sunset”—go away once the jail is built—and that operations would be funded out of mill-levy funds.
Brookens said, “It’s tough to do this, but it can be done. I am only one vote. I can advocate, but it will take 63 other votes total in the Legislature to pass this.
“There could be amendments attached at the end of it. It could have ramifications elsewhere.”