LOVE: Let Oro Valley Excel

Oro Valley Resident Questions Legality of Utility Tax
The Explorer
Brian P. Nanos
February 7, 2007

Oro Valley resident Bill Garner has already failed in one attempt to stop the town’s 2-percent utility tax from taking effect, but he isn’t giving up that easily.

In a Jan. 31 letter hand-delivered to town attorney Melinda Garrahan, Garner charges that the town council vote approving the tax was invalid.

And, if Garrahan and the town disagree with his letter, Garner later told the EXPLORER, he “will absolutely” file an injunction to stop the tax from taking effect when it’s due to kick in April 1.

“On face value,” he said, “the whole process was halfheartedly done.”

Before the EXPLORER’s print deadline, Garrahan had not yet reviewed or responded to Garner’s letter. However, Councilman Terry Parish is confident that Garner’s reading of the law is wrong and statements made by the town’s finance director before the tax’s approval also indicate that it was passed legally.

Even if Garner gets his way and the tax is put to another vote, it is likely to pass again.

The 2-percent utility sales tax on water, electricity and natural gas will pay for 18.5 new town positions, mostly in the police department. It was approved by the town council Dec. 6. A 4-percent tax had been rejected in 2005 and later in September 2006.

Oro Valley town code requires all ordinances to be the subject of a public hearing before they get passed. The minutes to the Dec. 6 council meeting include a reference to Mayor Paul Loomis opening and closing a public hearing on the utility tax, and during discussion of the tax, Finance Director Stacy Lemos told the council that the item had previously been discussed at two public hearings.

Garner, however, claims that while the previously rejected 4-percent utility sales tax ordinances were the subject of public hearings, the December vote was on a different ordinance, one that Garner points out had “completely different” language, a different ordinance number and was never subject to a public hearing.

He also said the agenda published before the Dec. 6 meeting did not refer to a public hearing, only “discussion and possible action.”

“It’s pretty clear, at least this is my opinion,” said Garner, “that there was not a public hearing.”

According to Parish, who claimed to have discussed these issues with Garrahan before the tax was approved, a new public hearing would only have been necessary if the approved utility tax would cost the public more than the rejected one would have.

The less-expensive compromise, he said, is allowed.

“I had an idea that there would have to be a compromise, so I asked if we could do that,” Parish said.

Garner said he hopes the town council will be forced to vote again on the utility tax, and that before that vote, citizens will be able to convince Councilman Al Kunisch vote against the tax. Kunisch twice voted against a 4-percent tax but voted for the 2-percent version.

When asked of the possibility of changing his vote, Kunisch said, “No way. Absolutely not.”

“There are a lot of needs and not a lot of money,” Kunisch explained. “I voted for it. I support it. I think we need it. That’s it.”

Garner’s earlier attempt to stop the utility tax failed when he came up more than 100 signatures short of the 793 needed to file a referendum putting the issue to a public vote.

Even if he had gathered the number of signatures required, the attempt would have been purely symbolic. The town had already ruled that the tax, because it paid for support and maintenance, was exempt from referendum. Additionally, a communication breakdown between Garner and Oro Valley Town Clerk Kathi Cuvelier lead him to unknowingly miss the deadline for applying for the referendum.

Parish said the tax is the council’s attempt to provide the city with needed services.

“It’s unfortunate that we have to go through this type of controversy to get something that the citizens not only need, but demand,” he said.