Tahlequah Daily Press

February 18, 2013

Attorneys: City tax ordinance is valid

Staff Writer

TAHLEQUAH — Tahlequah Mayor Jason Nichols and city attorney Park Medearis met Friday afternoon to answer questions over the city’s charter and whether a recent sales tax ordinance is valid.

Nichols and Medearis met with local accounting professor Dr. John Yeutter, who had questions about the city’s process before and after voters approved a sales tax increase in January. That increase of 3/4ths of a percent is set to take effect in April, and will bring in more than $21 million to fund numerous city projects in the coming months.

Yeutter first asked whether the city could introduce and pass an ordinance during the same meeting. He referred to a decision made by the city council last November that seemed to indicate the board had approved of the sales tax ordinance, although it had not gone before voters. Under Section 48 of the city charter, ordinances cannot be passed on the day they are introduced unless there is a public emergency.

Nichols said the ordinance’s approval by the council in November was conditional upon voter approval in January. Medearis agreed and said the question presented an “apples-to-oranges situation.”

“When an action is sent to the people for enactment, then those provisions do not apply – the ones that would ordinarily apply to council-enacted ordinances,” said Medearis. “I have confirmation of that from our bond counsel.”

Yeutter then brought up Section 50 of the city charter, which requires an ordinance be published once in a newspaper and says the ordinance “shall not take effect until 30 days after such publication... .”

“Section 50 doesn’t apply, because [the ordinance] was enacted by the citizens, the voters,” said Medearis. “This was a referendum, which, by definition, is when the legislative body sends to the electorate the issue of the enactment – or not – of an item of legislation. And we can add to the mix that it was published in the newspaper numerous times [prior to enactment].”

Yeutter said his main concern is the style of the ordinance, which seems to differ from the style set forth by the city’s charter. Yeutter explained he wanted to be sure all actions taken by the city were proper before he considers an invitation made to him to serve on a sales tax oversight committee.

Nichols said attorneys for the project have cited case law that style or “form” of an ordinance does not change or invalidate the will of the voters.

“It’s one of those form-over-substance issues, where maybe it doesn’t look right in form, but in substance, it’s correct,” Medearis said. “The case law is that they’re not going to allow form to override the substance. If there is a bit of an inconsistency here or there, the bottom line is, the voters voted to do this, and stylistic inaccuracies, if there are any, aren’t going to invalidate it.”

The mayor said he contacted the law firm hired as bond counsel for the project and asked attorneys to check that the city made no mistakes in its process.

“Their answer was, ‘No, we’ve done hundreds of these, but at your request, we’ll take a look,’” said Nichols.

Those attorneys researched the concern and also spoke to another city ruled by a charter, and determined there was no problem, Nichols said.

“The bottom line is that the case law is that form or style will not override the vote of the people,” said Medearis. “I’m 100 percent confident, after having talked to [Floyd Law Firm attorney] Jeff Raley, that the city of Tahlequah is completely in compliance, and that despite some facial questions that may arise, that what we’re doing is completely supportable by current case law.”

Bonds are expected to be issued within the next few weeks, and funding will likely be “in the bank” by March, Nichols said.