Friday, March 19, 2004

Court: County notified public of tax

Bruce Schreiner
The Associated Press

FRANKFORT - The legality of Knox County's occupational tax was upheld Thursday by the Kentucky Supreme Court.

The ruling came in a taxpayer suit alleging that the Knox County Fiscal Court enacted the tax ordinance without fulfilling public notification requirements of the Open Meetings Act.

The justices said the county was in "substantial compliance" with the law, and that was sufficient.

The law required the county to publish a summary of the ordinance, which the county did with a notice in the Barbourville Mountain Advocate before a special meeting of the fiscal court.

But the summary was not certified by the county for accuracy, as required in another section of the statute. Opponents said the law required strict compliance, including certification of the summary, and that failure to do so rendered the payroll tax invalid.

The opponents lost in Knox County Circuit Court but won on appeal to the state Court of Appeals. The appellate court returned the case to the circuit court with instructions to invalidate the tax. But in a 5-1 ruling, the Supreme Court reversed the order.

Writing for the majority, Justice Martin Johnstone said the publication law "does not require strict compliance" because it is a directive, not a mandate.

"The obvious intent (of the law) is to ensure that no county ordinance is passed in secret or without reasonable notice to the public," Johnstone wrote.

If the summary accurately and sufficiently describes the ordinance, "we do not believe that the fiscal court's certification of the summary is absolutely necessary to accomplish" the law's purpose, the opinion said.

The summary that appeared in the Knox County newspaper sufficiently covered the proposed ordinance's main points, Johnstone said.

In a dissent, Justice Donald Wintersheimer said publishing requirements must be strictly followed.

"Clearly, the fiscal court has the legal authority to pass a valid occupational tax," he said. "However, in this case, the ordinance was evidently hastily enacted in such a way as to deprive the citizens and taxpayers and others affected to have an adequate and accurate notice as to the contents of the proposed ordinance."

The tax also was challenged on grounds that the fiscal court violated the Open Meetings Act's requirement for public meetings to be held at times and places convenient to the public.

The fiscal court meeting coincided with the Daniel Boone Festival, which drew large crowds around the courthouse. Foes of the tax said the timing and location were inconvenient.

Johnstone said the fiscal court might have chosen a more convenient time but that the law does not require maximum convenience.

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