On September 29, 2014, the State Board of Equalization issued a Letter to Assessors (LTA) and to clerks and other interested parties, that the staff again proposes to amend Property Tax Rule 308.6, Application for Equalization by Member, Alternate Member, or Hearing Officer to incorporate past legislation, including AB 824 (Chapter 477 of 2009), which was sponsored by CACEO. That legislation gave the clerk of the assessment appeals board discretion to have an AAB in another county sit as a special alternate board to hear an appeal filed by an AAB member, assessment hearing officer, employee of the clerk’s office, certain members of the staff of the county counsel in lieu of the cumbersome process of convening a special alternate board appointed by the presiding judge. The new draft rule is fully in keeping with the legislation sponsored by clerks. But it wasn’t always so.

The BOE first initiated an interested parties process to amend the rule in 2012-13, but drafted it in a way that was unacceptable to clerks. That rule, in its first draft, would have required a formal agreement between the two counties. The county counsel of one county even suggested that there be a formal agreement signed by the boards of supervisors of the involved counties. Ultimately in early 2013, the BOE staff submitted a proposed rule for BOE adoption that would have required the approval of the receiving assessment appeals board.

None of these drafts and suggestions was at all in keeping with the CACEO-sponsored legislation, which gave the clerk full discretion to use another county’s sitting assessment appeals board. What the clerks envisioned when they sponsored AB 824 in 2009 was that the two clerks involved would come to an agreement and the AAB members of the “receiving county” would travel to the “referring county” and be compensated for their time and mileage. Simple, straightforward, and economical.

When the proposed rule came before the BOE in 2013, CACEO filed a letter objecting saying that the intent of the legislation was to let the clerks involved determine how these applications should be handled, pointing out that the proposed rule was inconsistent with the plain language of the statute and wholly inconsistent with the intent of the 2009 legislation. The draft rule was pulled from the BOE’s agenda and the project was put on hold.

Fast forward to September 2014. The BOE staff again announced their intention to launch the proposed changes to Rule 308.6, this time with language stating that applications may only be referred to a county if that county’s AAB, or the clerk at the direction of the AAB, has consented to accept the referral. This was also unacceptable to CACEO’s BOE Rules Work Group. An AAB has no authority whatsoever to make administrative decisions. Moreover, a rule giving AABs that kind of authority could very well have provided justification for making AABs subject to the Brown Act. Hard experience in the Legislature over that very issue has made clerks very wary of any such notion.

The BOE’s Legal Division had concerns that a receiving county might be saddled with large, unanticipated costs from a large influx of appeals from a referring county. However, when we explained how this process really works, and how rare these appeals are, their fears seemed to be allayed.

We appreciate the cooperative work of Sherrie Kinkle at the BOE and the Legal Division staff in resolving the issue. CACEO’s BOE Rules Work Group plans to respond to the LTA supporting the latest draft. However, we will actively participate in the interested parties process and will attend the BOE meeting at which the amended rule will be considered. Just to make sure . . .