On Wednesday, the Ohio Supreme Court issued a decision in State ex rel. Delaware Joint Vocational School Dist. Bd. of Edn. v. Testa, Slip Opinion No. 2017-Ohio-796. The case, discussed in a Jan. 27 Legal Ledger post, involves a Renewal Levy passed in November 2015 by the Delaware Area Career Center (DACC). Ninety-nine percent of DACC’s territory is in Delaware County, while less than 1% falls in Franklin, Marion, Morrow and Union Counties combined (DACC Territory). The Renewal Levy would have resulted in $7.1 million/year of revenue for 10 years, starting with collection in 2017 for 2016 taxes. The Renewal levy passed by more than 10,000 votes. Although DACC took all appropriate steps to renew its levy, it was notified by the Delaware County Board of Elections (DCBOE) that DCBOE erroneously failed to place the Renewal Levy on the ballots in Franklin, Marion, Morrow and Union Counties. Even if all 1,026 registered voters in those counties had voted against the levy, it still would have passed by a large margin (9,618 votes).
As a result of DCBOE’s failure to include the Renewal Levy on the other counties’ ballots, the Tax Commissioner refused to certify and levy the tax from the Renewal Levy. The court was asked to decide whether the Tax Commissioner can refuse to certify and levy the tax from a Renewal Levy when a county board of elections failed to carry out its statutory responsibility to notify other affected counties of the Renewal Levy request.
Unfortunately, in a 4-3 decision the court held that the tax commissioner could not be compelled to calculate tax rates where DCBOE hadn’t certified the election results from all five of the counties included in DACC’s territory. The Court noted that the tax commissioner's statutory obligation wasn’t triggered because he couldn’t determine that the tax had been authorized to be levied because DCBOE didn’t use the appropriate form (Form 5U) prescribed by the Ohio Secretary of State.
In a dissenting opinion, Chief Justice Maureen O'Connor (joined by Justices Judith L. French and Patrick F. Fischer) noted that, even if all 1,026 registered voters in the other counties had voted against the levy, it still would have passed. The dissenting opinion also disputed the majority's assessment that Form 5U was required, arguing the county also had the option of using Form 125, and that, because Delaware County properly submitted Form 125 to the Ohio Department of Taxation, the tax commissioner did have a clear legal duty to calculate the tax rates.
A joint amicus brief on behalf of OSBA, the Buckeye Association of School Administrators (BASA) and the Ohio Association of School Business Officials (OASBO) in support of DACC’s position was submitted through OSBA’s Legal Assistance Fund (LAF).
The outcome in this case is unfortunate for Ohio boards of education.