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MTC is planning yet another new tax that they lack the legal authority to propose
The Metropolitan Transportation Commission (MTC) is planning yet another new tax. The details can be found in the MTC meeting agenda for their Monday, August 26th hearing.
CLICK HERE to view the agenda.
MTC lacks the legal authority to put a tax on a ballot. Article XI, section 11, subdivision (a), of the California Constitution, provides,
“The Legislature may not delegate to a private person or body power to make, control, appropriate, supervise, or interfere with county or municipal corporation improvements, money, or property, or to levy taxes or assessments, or perform municipal functions.”
In Howard Jarvis Taxpayers’ Assn v. Fresno Metropolitan Projects Authority (1995) 40 Cal. App. 4th 1359, a statute passed by the Legislature, Gov. Code, § 68059.7, allowed the Fresno Metropolitan Projects Authority to impose a tax, and provided that the Authority shall be authorized to levy and collect the tax.
The Authority was held to be a “private person or body” because some of the members of the Authority were not publicly-elected officials, or appointees of publicly-elected officials. There were not accountable to the public. The court ruled that the statute was unconstitutional, because the power to tax cannot be delegated to a “private person or body.” The same constitutional flaw is fatal to the MTC.
Notably, the court in this case also concluded that it made no difference that the tax had been approved by the voters. It was “taxation without representation.”
Similarly, in County of Sonoma v. Superior Court (2009) 173 Cal. App. 4th 322, the court ruled that a state law requiring Sonoma County to submit disputes over employee compensation to arbitration, in which arbitrator would determine compensation, violated state constitutional provision giving county authority to establish such compensation. The constitutional power vested in the county could not be required to be delegated to a “private person or body” – an arbitrator.
However, the MTC Commission contains unelected officials.
Specifically, no one is elected to the position of MTC Commissioner. Some of the commissioners are elected officials. Some are appointees of elected officials. Some are not even appointees of elected officials.
These include Dina El-Tawansy (Representing California State Transportation Agency (CalSTA); Director, Caltrans District 4); Dorene M. Giacopini (Representing U.S. Department of Transportation); and Libby Schaaf (Representing U.S. Department of Housing and Urban Development).
Although those who are not even appointees of elected officials are "non-voting" MTC Commissioners, they participate in discussions. As such, their participation results in a violation of Article XI, section 11, subdivision (a).
By analogy, when a public official must recuse himself or herself from a decision, the recusal must include not only not voting, but also not participating in the discussion; also, the official must physically leave the room. (See Gov't Code section 87105(a)(2) and (3)).
But, at MTC, the non-voting commissioners do not leave the room and if present actively participate in the discussion.
I have submitted this argument to MTC. CLICK HERE to see Item 5 (public comment packet, page 5).
The participation of the non-voting members in discussions is sufficient to establish a violation of the California Constitution if MTC places a tax measure on the ballot.
Nick is a retired lawyer whose practice consisted of trials and litigation, primarily in real estate and doing pro bono work in his community. During the 11 years since retiring, he has been active in civic affairs and studied state housing laws in great detail.