The Columbia County Commission recently requested that Governor Nathan Deal look into Columbia County Tax Commissioner Kay Allen’s collection of municipal taxes pursuant to her own private contract, with a view toward potentially removing her from office. This was done pursuant to O.C.G.A. Section 48-5-145, “If any tax collector or tax commissioner fails or refuses to make payment, if he makes a false return, or if he fails or refuses to file the report as required, it shall be the duty of the commissioner or the county governing authority to report such facts to the Governor. The Governor shall cause a notice of the failure, refusal, or making of a false return to be served on the tax collector or tax commissioner for him to show cause why he should not be removed from office. If the tax collector or tax commissioner fails to make a proper excuse within ten days, it shall be the duty of the Governor to remove the offending official.”
Allen attorney Doug Chalmers bases the first section of his response to the governor’s notice on an argument against the applicability of this statute. His argument is largely based upon his interpretation of three undefined terms: “payment,” “return” and “report” and is essentially that Allen’s failure to remit or make any record or notice to the county of funds that she personally received does not constitute a false return or report. I believe that there is substantial room for the governor to find that she failed to make a proper return or report in that her return and report did not include the funds in question received from Harlem and Grovetown.
Anything the tax commissioner receives is tax money, by the very nature of the office, and under statute (O.C.G.A. Section 48-5-359.1) payable to the county. Chalmers fails to make an adequate distinction as to why these funds to which the county is and was entitled are any different than other funds to which the county is entitled, such as funds not derived from Harlem and Grovetown taxes. He ignores the fact that Allen had no authority at all to make a personal contract with the municipalities, as he continues to do throughout his response. It’s up to the governor to decide how the conduct fits the statute, but the answer seems clear to me.
Chalmers argues that Allen was unaware of the change to O.C.G.A. 48-5-359.1 that occurred in 2007 (which prohibited conduct previously legal, i.e. personal contracts of tax commissioners to collect taxes for municipalities for a fee in counties with more than 50,000 tax parcels) and became applicable to Columbia County in 2009. Ignorance of the law as an excuse is, at best, a last line of defense, and almost always ineffective.
The attorney is arguing that a professional and experienced tax commissioner is not aware of the laws pertaining to her duties. Chalmers goes so far as to insinuate that the county should have sent a notice to her to inform her of the change in law pertaining to her own constitutional office. Should the obligation be on the county to tell the tax commissioner to not make a contract that they do not know he or she is making, or should it be the responsibility of the tax commissioner to ensure that he or she is performing the duties of their office in conformity with law?
There are several facts alleged that mitigate against the assertion that Allen was unaware of the statutory amendment prohibiting her conduct. Witnesses have described a method of payment that involves off-record invoices, payment in envelopes marked confidential, employees being directed to deliver the envelopes unopened directly to the tax commissioner.
The process, if true, looks terribly shady. It looks like a bag drop. In the county’s letter to Governor Deal, commissioners reference a training session that should have made Allen aware of the statutory change. Chalmers does not address that reference or any of the allegations. Admittedly, the subject is outside the scope of response to the governor’s notice.
Chalmers argues that Allen is entitled to funds for her efforts notwithstanding statutory provisions and “generously” offers to negotiate the amount of compensation with the county ex post facto. This argument, in addition to being highly offensive to notions of accountability of public servants and completely lacking in hubris, fails on general contractual and moral grounds as well. I don’t think someone can legitimize funds wrongfully obtained by negotiating to be awarded those same funds by contract years later.
In an extremely loose analogy to illustrate the proposition, and without relation to the facts of this particular case, it would be as if I came to your house and took your television and then offered to buy it from you after the police caught me. The County Commission would have a difficult time explaining such a negotiation to the voters at the next election. Perhaps a better offer would have been to repay all funds wrongfully obtained, plead ignorance, apologize profusely and resign immediately. I think that would have been my advice to a client in a similar position. Clients don’t always listen to advice.
It’s telling that Chalmers admits the conduct of Allen was contrary to statute. I hardly see how he could do differently. His response is making the best of a bad set of facts and I don’t envy his position. The ability of an attorney to be effective is dependent upon the facts of the case and an ability to argue law, but even the finest lawyering can’t make up for a really bad set of facts.