Hot on the heels of the Pennsylvania School Boards Association’s attack on Governor Corbett’s plan to improve educational opportunities for poor students in the state’s weakest performing districts comes a negative editorial in a Pittsburgh newspaper. The op-ed demonstrates the thinking of those who remain stubbornly committed to the status quo public monopoly schools regardless of massive failures in many districts across the state.
The General Assembly has once again taken a highly questionable position in ordering a stop to court ordered reassessments. One can hope that the Governor will not sign the latest version of the bill, which applies only to Washington County.
Legislation overturning court rulings that are clearly based on the Pennsylvania Constitution is an assault on the Constitution and the balance of power contained therein. Where does it end? Indeed, what happens when the Supreme Court rules the legislation unconstitutional? Will the law be enforced or not? Who has the power to enforce when the law says one thing and the courts say different?
This is an ill-advised slippery slope for the Legislature to be taking. Qui bono? Who benefits? The majority in the legislative bodies must not confuse temporary electoral expedience with fealty to their oath to defend and obey the Constitution. They might not like what the Constitution requires but that is dealt with an amendment process-not by flouting the Constitution. There is not enough good to be gained from this action to justify the long term harm that will come from taking it.
The irony is that the Legislature has known about the problems with Pennsylvania’s assessment statutes and the morass of assessment schemes across the state for a long time and has failed in its duty to write new bills to bring the state into the 20th century.
The Governor should ask some of his constitutional experts about the advisability of signing this legislation.
A Tribune Review article of November 8 reminds once again just how desperate the unfunded pension plan situation is for many Pennsylvania communities, including the two largest cities as well as several midsized cities. With assets to liabilities ratios below 50 percent in Pittsburgh, Philadelphia and Scranton and others below 65 percent, there can be little doubt that a crisis is at hand.
The Mayor of Pittsburgh, members of Pittsburgh City Council, and all City appointees do it; so too do the members of Allegheny County’s personnel board; county officials in Erie County also do it; but whether deliberate or because of an oversight, the Allegheny County Executive and members of County Council do not.
“Allegheny County will comply with the court-ordered 2012 reassessment…”-press release from the Chief Executive, December 4, 2009
“I will do everything in my power to make sure [a 2012 reassessment for Allegheny County] does not happen”-quote from the Chief Executive from a County Council meeting, January 19, 2010. Further, in speaking to reporters the Executive indicated that as Governor he would put an end to court ordered re-assessments claiming that his power to do that derived from the Supreme Court’s ruling that the assessment issue is the purview of the Legislature.
In a previous Policy Brief (Volume 9, Number 51) we raised the question of whether Pittsburgh’s legacy costs could force the City to seek relief under Chapter 9 of the U.S. Bankruptcy Code. Under Chapter 9 a judge would oversee a readjustment of debts. Pennsylvania’s Act 47 permits a municipality in financial distress to pursue a Chapter 9 filing if one of the following conditions is present:
The Act 47 coordinator recommends filing
There is imminent action by a creditor that would threaten the ability of the municipality to provide services
A creditor has rejected the Act 47 plan and the rejection cannot be resolved
A condition causing financial distress could be solved by filing
The governing body has failed to adopt an Act 47 plan or carry out the recommendations of the coordinator
Section 709 of the City of Pittsburgh Home Rule Charter outlines the oath of office for every elected official and appointee as the following: "I do solemnly swear or affirm that I will support the Constitution of the United States and of this state and the charter of this city and that I will faithfully discharge the duties of office to the best of my ability".
So how do we reconcile the obligations of that oath with the statements of one of the most senior members of Council, soon to be a magisterial judge of the Commonwealth, who said this of a senior citizen tax relief program debated yesterday in Council: "So it’s not in compliance with state law. Big deal…I don’t give a damn if [the tax break] is illegal or unconstitutional if it supports the poor people of the city of Pittsburgh."
Stunning: not only in light of the fact that the member is in direct violation of the oath he vowed to uphold, but for the fact that soon the member will be hearing cases involving "most summary offenses, most preliminary hearings, certain DUI cases, certain third-degree misdemeanors and some ordinance violations, landlord/tenant cases and some general civil claims subject to financial limits" according to one description of the responsibility of a magisterial judge. Imagine if a landlord in the City fails to meet state safety requirements or doesn’t have sprinklers and claims it is because they are too expensive; would that pass muster? Or what if a person down on his luck decided to steal to support his family?
What will be the deciding factor in his rulings: the law and the Constitution, or the financial needs of the parties in front of the bench?
Article VI, Section 3 of the Pennsylvania Constitution requires that all Senators and Representatives take and subscribe to the following oath, "I do solemnly swear (affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity."
Straightforward and leaves little room for interpretation.
How is it then that the Legislature intends to pass a bill that sets aside Article VIII, Section 1 of the Constitution that requires; "All taxes shall be uniform, upon the same class of subjects, within the limits of the authority levying the tax, and shall be levied and collected under general laws."? The Supreme Court has upheld this provision on several occasions, most recently in the case of a suit brought against Allegheny County’s assessment system.
The legislative moratorium on court ordered re-assessments based on the Constitutional requirements set out in Article VIII, Section 1 essentially sets aside the Constitution as it applies to property taxation, an action that is clearly inconsistent with the oaths of office taken by legislators and the Governor if he signs the bill into law.
The principal effect of the moratorium on re-assessments now working its way through the Senate after having passed in the House will be to set aside an important constitutional provision known as the Uniformity Clause. By ordering a stop to court ordered re-assessments until some future unknown date, the Legislature will overturn a Supreme Court ruling that the base year as used in Allegheny County is unconstitutional. Thus, the legislation as written effectively amends the constitution statutorily rather than through the prescribed amendment process contained in the constitution.
Another consequence of the legislation will be to deprive property owners from suing a county wherein a property is located and taxes are paid on the grounds that the assessment system violates the Uniformity Clause. That amounts to legislative denial of due process.
Of course, this should be enough to give the Legislature pause before it proceeds, but it apparently won’t.
The Legislature says it wants the moratorium so that it can reform the state’s assessment regulations. The problem is the Legislature has no credibility on this point. They have had decades to fix the problem and have done nothing until forced by a Supreme Court ruling, which they now want to overturn. Here’s the crux of the situation. Any legislative reform of assessments will have to call for a re-assessment in counties that are far out of line on measurements of accuracy of assessments in order to satisfy the Uniformity Clause requirement and move the state into the 20th century vis-à-vis assessment.
The irony is that the Legislature is asking for time to write a bill that mandates re-assessments. They will meet the same resistance from folks afraid of a re-assessment and who are now screaming at them to stop court ordered re-assessments. Of course, the wink-wink, nod-nod understanding is that no legislation requiring re-assessments will be forthcoming any time soon. Thus, the state will continue with a constitutional crisis and ever worsening assessment inequities that are effectively locked in place.