Alabama Advisory Opinions September 21, 1988: AGO 88-00457 (September 21, 1988)

Advisory Opinion Text

Honorable Bill Drinkard

Member, Alabama state senate

10th District

Holy Name of Jesus Medical Center

Moragne Park

Gadsden, AL 35902

Counties - Revenue Commissioner -Referendum Elections - Officers and Offices - Tax Assessor - Tax Collector

Provisions of Section 7 of Act 88-789 are legal; there is time to place referendum called for in said Act on the ballot of the election in November.

Election to fill vacancy occurring one month prior to referendum may be delayed pending outcome of referendum.

Supernumerary Tax Assessor or Department of Revenue will carry out duties of tax assessor pending referendum or election.

Dear Senator Drinkard:

This opinion is issued in response to your request for an opinion from the Attorney General.

QUESTIONS 1 AND 2

1. Are the provisions in Section 7 of Act 88-789 allowing for the combining of the tax assessor's and tax collector's office into a revenue commissioner legal even though there are three years remaining on the terms?

2. Is there adequate time to place the referendum called for in Act 88-789 on the November 8, 1988, ballot and if so who would order it placed on the ballot?

FACTS AND ANALYSIS

Section 7 of Act 88-789 provides as follows:

"Section 7. The offices of the tax assessor and tax collector of Etowah County are hereby abolished effective the first day of the next term of office, or upon the occurrence of a vacancy, for any reason whatsoever, in the office of tax assessor or tax collector. In the event that the office of tax assessor or tax collector becomes vacant before the next term, the office of county revenue commissioner shall immediately come into operation, and the remaining officer, tax assessor or tax collector, as the case may be, shall immediately assume the duties of the office of county revenue commissioner and shall perform such duties until a county revenue commissioner has been elected as provided herein. For the performance of such duties, he shall be entitled only to the salary herein above prescribed for the county revenue commissioner."

A review of the Act, and, in particular, §7 thereof, reveals that there is no change in the character or duties of the offices of tax assessor or tax collector until the end of the current term or upon the occurrence of a vacancy in either office. Upon a vacancy in either office, both offices cease to be, but the surviving officer assumes the new office of county revenue commissioner for the remainder of his term.

This is similar to other statutes by which the offices of tax assessor and tax collector in other counties have been combined into the office of a county revenue commissioner. We note that since 1971, over 25 of the 67 counties have consolidated the offices of tax assessor and tax collector.

Accordingly, your first question is answered in the affirmative, the provisions of § 7 of Act 88-789 are legal.

As to your second question, the Act in question became law on September 15, 1988, some 7 weeks prior to the next general election. In Section 8, the Act calls for a referendum " ... to be held at the next general , special, or constitutional election...." (emphasis supplied.) That election is the general election to be held on November 8, 1988. By the terms of the Act, the county commissioners are required to give notice of the election, which notice, " ... shall be published once a week for three successive weeks before the day of the election." There is more than sufficient time to do this. The Act is self-executing insofar as ordering the question to be placed on the ballot. Accordingly, your second question is answered as follows: there is adequate time for the referendum called for in Act 88-789 to be placed on the ballot for the November 8, 1988, election, and the election officers of the county, including the probate judge have the duty to see that this is done.

CONCLUSION

The provisions of Section 7 of Act 88-789 are legal, there is sufficient time for the referendum called for to be held at the general election on November 8, 1988, and the question should be on the ballot for that election, as set forth in the Act itself.

QUESTIONS 3 AND 4

3. In the event of the resignation of the tax assessor, effective October 1, 1988, can the county commission, under Section 1 of Act 88-790, hold off calling an election pending a referendum as set forth in Act No. 789?

4. In the event of the resignation of the tax assessor, effective October 1, 1988, who would operate the office of the assessor during the vacancy of the office pending either the above-mentioned referendum or election to fill the office?

FACTS AND ANALYSIS

Act 790 provides as follows:

"Section 1. whenever a vacancy occurs, for any reason whatsoever, in any Etowah County office more than one year before the expiration of the term of office, the Etowah County Commission shall forthwith order an election to be held by the qualified electors of the county to fill such vacancy. Such election shall otherwise be held and conducted in the same manner as provided by law for county-wide or special elections."

"Section 2. In the event the unexpired term is for less than a year, the county commission shall, at their discretion, either make an appointment for the unexpired term or oversee the operation of the vacant office. Provided, however, that no person appointed nor any member of the county commission shall be eligible to immediately qualify to hold the same office subsequent to such special election without the elapse of one full term. Thereafter, such person shall be eligible to qualify for said office, as provided by law."

We understand that there are three years remaining in the term of the tax assessor. Assuming his resignation is effective October 1, 1988, there is no vacancy to fill until that date, and the provisions of Act 790 will apply to that vacancy. This would require that the Etowah County Commission order an election to fill that vacancy. Except that the election is to be called by the county commission, it is to be "otherwise held and conducted in the same manner as provided by law for ... special elections." See the provisions of Title 17, for the general law respecting elections. This election should allow sufficient time for candidates to qualify and for a campaign to be conducted. It is unlikely that such an election could be properly conducted prior to the referendum. In the interest of fairness and economy, it would be reasonable, and within the authority of the commission, to delay calling the election until the referendum has been conducted. An affirmative result in the referendum would moot the question entirely.

This, however, appears to leave the office of tax assessor vacant for more than a month at a crucial period in the tax year, which leads us to a consideration of your final question. Even if an election were to be held as early as possible pursuant to Act 88-790 there would be a period of a month or so in which the office would be vacant. This situation is adequately covered by other statutes. Section 40-6-2 provides:

" ... if a vacancy shall occur in the office in the county in which the supernumerary ... tax assessor ... holds his commission, he shall immediately assume and exercise all the duties, power and authority of such official in said county until a successor is appointed. ..."

Thus, if there is a supernumerary tax assessor in the county, he will be expected to carry out the duties of the tax assessor's office. Should there be no such supernumerary officer, then the duties of the office are to be carried out by the State Department of Revenue pursuant to its general powers and duties set forth in § 40-2-11(2) Code , which provides:

"It shall be the duty of the department of revenue, and it shall have the power and authority ...

"(2) To equalize, value and assess ... any property subject to taxation, and such valuations and assessments it shall enter or cause to be entered in the proper assessment book, record or minutes of the proper official...."

CONCLUSION

The county commission may await the results of the referendum provided for in Act 88-789 before calling an election as required in Act 88-790. In the interim the duties of the office of tax assessor will be carried out by a supernumerary tax assessor or the Department of Revenue.

I hope this sufficiently answers your questions. If our office can be of further assistance, please do not hesitate to contact us.

Sincerely,

DON SIEGELMAN, Attorney General.

PHILIP C. DAVIS, Assistant Attorney General.