by Cat Urbigkit, Range Writing columnist
At Tuesday’s regular business meeting, the five members of the Sublette County Commission unanimously voted to release attorney/client communications regarding the county’s fire mill levy in response to a Wyoming Public Records Act request, and then held a public discussion of the taxation issue for more than an hour.
The meeting room was fairly crowded, with attendees including the mayors and legal counsel for the incorporated towns in the county who had been specifically invited to join in the discussion at the meeting.
The communications included a 12-page analysis of the way the commission had levied up to one mill for Sublette County Unified Fire services in the county.
As reported in last week’s column, when Sublette County unified its local fire departments into one countywide department in 2015, it continued to tax a portion of a mill for fire protection in the unincorporated areas of the county. Residents of the incorporated towns were never subjected to the county tax.
In anticipation of the commission’s decision to publicly release the document from the County Attorney’s office, Sublette County Clerk Carrie Long prepared a large stack of copies to be distributed to the public attending the session.
Written by Chief Deputy County Attorney Clayton Melinkovich, the memo included several startling revelations. The first is the County Attorney’s determination that “the County has no authority, statutory or otherwise, to assess a mill levy for fire protection services, and as such the practice of doing so is unlawful.”
The memo reported that there is no time limitation for refunds of an illegal erroneous collection of a tax and pointed out that Sublette County has collected more than $11 million from its fire protection levy in the last five years.
Not only did Sublette County improperly impose the Fire Mill tax levy, the County Attorney’s office advised that the County also violated state and federal laws by failing to apply its General Fund tax levy uniformly throughout the county by not taxing properties located within the three incorporated towns (Big Piney, Marbleton, and Pinedale). County officials estimate that this failure represents an undertaxation of about $42,000 per year, or about $36 per person residing in the towns.
My column last week criticized the county commission for holding its discussion of this taxation issue in executive session on June 7. An email communication to county officials dated June 3 from Melinkovich, released in response to the Wyoming Public Records Act request, summarized the situation going into that meeting:
• “the County has not had the authority to assess a ‘fire mill’ since 2015”
• “A tax collected without proper authority would likely be found to be erroneous/illegal”
• “Erroneous or illegally collected taxes are subject to refund or credit against future payments.”
• “Eliminating Sublette County’s ‘fire mill’ and absorbing that amount into the County’s general fund levy and taxing all properties within the County uniformly would protect all dollars collected in the future from being subject to refund.”
The June 3 email was sent to prepare the Board of County Commissioners for its June 7 business meeting. The email noted: “We will be discussing whether the County is appropriately assessing a fire mill at Tuesday’s meeting.
The agenda has a brief executive session prior to the discussion for the purposes of providing the opportunity for the Board to ask any questions about the legal aspects of the attached memo or the issue and what potentially could happen next.
If the Board ultimately chooses to make a change and absorb the amount that has been levied as a ‘fire mill’ into the County General fund mill levy, this decision would need to be made through Board action. Thus, a motion, discussion, and vote would need to take place in open session.”
But the County Commission didn’t hold any of the discussion in open session at that June 7 meeting, and the public generally was unaware of the taxation issue until my column was published last week. In my view, this week’s release of documents and full discussion in open session, resolves the lack-of-transparency issue.
After discussion of the issue at length between county and town officials on Tuesday, Sublette County Commissioner Sam White said he was ready for the commission to make a decision, to take action. “I think we are doing it wrong and we need to change the way we are doing this,” he said.
Although Commission Chairman Joel Bousman pressed to request an Attorney General’s opinion on the matter, Commissioner Tom Noble said that legal opinions are just that (opinions) and “only a judge” could make the legal determination.
In the end, the commission took action as White had suggested. Prompting Melkinovich to provide the proper verbiage, Commissioner Doug Vickrey make a motion to eliminate the Fire Mill levy from the county taxation in the future. The motion was seconded by Commissioner Dave Stephens, and passed on a vote of 4-0, with Bousman abstaining from the vote.
This week’s action means that Sublette County will no longer impose a Fire Mill levy and will now begin to tax its General Fund levy on property owners within the incorporated towns to comply with the Wyoming Constitution’s Article 15 provision that taxation “be equal and uniform.”
The county’s fire protection program will now be a part of the General Fund budget, on par with other departments such as the road and bridge department and the sheriff’s office.
That also means that the revenue stream generated from Sublette County Unified Fire’s (SCUF) work on federal wildfires throughout the western states will no longer be protected by its designation into a restricted fund used to replace aging equipment and fire halls.
Instead, the revenues generated by Unified Fire will go into the General Fund to be spent by the county commission as it wishes (and will no longer be earmarked exclusively for fire purposes).
That issue was of considerable concern for many attendees at Tuesday’s meeting. Representatives from the towns expressed their continued support for SCUF and the existing structure of the town-county deal in which the county provides fire protection for the towns, prompting the commission to agree that the exiting program works well and expressing their support for the importance of the fire protection program.
In the end, it will be the sitting board of county commissioners that decide how much money is spent on the SCUF program every year when it adopts the upcoming budget. That’s been the way the program has operated in the past, but from now on, the revenues generated by SCUF will no longer be set aside specifically back into that program.
By the time the session concluded Tuesday, what the commission didn’t address was how to correct the mistaken taxation imposed since 2015. My guess is that any action on that front would only be prompted by a legal filing from a county taxpayer.
A full audio recording of Tuesday’s commission meeting is available here. The Fire Mill Levy agenda item begins around 1:25:44.
Cat Urbigkit is an author and rancher who lives on the range in Sublette County, Wyoming. Her column, Range Writing, appears weekly in Cowboy State Daily.