Florida Department of Revenue VAB Workships

May 23, 2006

Sharon Gallops
Florida Department of Revenue via electronic transmission to: gallopss@dor.state.fl.us
Post Office Box 3000
Tallahassee, Florida 32315-3000

RE: Value Adjustment Board Process / DOR Workshops

Dear Ms. Gallops:

It is my understanding that the Property Tax Administration of the Florida Department of Revenue is conducting three workshops in the month of June, 2006, to take public comments regarding the following:

1) Compilation of the Existing Statutes, Rules, and Case Law
2) Need to train Special Magistrates
3) Verification of Special Magistrate qualifications

CPS requests that attendance sheets and all transcripts of testimony at each public meeting are posted on the DOR web site, and that copies of all correspondence received from any source and in any form, including emails, telephone messages, letters or memoranda also should be available for those attending the workshops and should be included on the DOR web site.

This protocol - providing public access to the testimony and commentary - has been followed in the past and provides all interested parties insight into the activities of DOR. Please indicate, in writing, either by email or by letter, that you will follow the same precedent. With regard to the subject matter related to each workshop, CPS submits the following comments:

1) Compilation of the Existing Statutes, Rules, and Case Law would be better stated as Compilation of the “Governing” Statutes, Rules, and Case Law.

In Value Adjustment Boards throughout the state there are substantive abuses of petitioner’s due process rights because the Clerks, Special Magistrates, Value Adjustment Board members, and most particularly members of the Government Section of the Florida Bar do not appear to know what changes in laws have taken effect since adoption of the Presumption Statute (194.301 Fla Stat) and the Taxpayers Bill of Rights (192.0105). It also is not clear to petitioners that local government members or magistrates understand Property Appraisers and their attorneys have vested interests in the outcome of hearings, and that VABs are to be completely independent of all influences.

In that context, your word “Existing” does not address what “governs”. CPS proffers the following examples of systemic abuses - with the caveat that I am not a lawyer and may have inadvertently omitted material points.

• The Administrative Procedures Act was amended in circa 1998. Based upon the plain English in section 120.54, Fla. Stat. DOR Petition form includes at least four criteria which are NOT included in the Florida Constitution, NOT included in Florida Statutes, and should NOT be incorporated in any documents promulgated by DOR. No petitioner should face coercion when filing a VAB petition, let alone face unusual expenses and losses of their rights, as has been documented most recently in Collier, Manatee, and Indian River Counties.
  
• The Taxpayer’s Bill of Rights, specifically section 192.0105 Fla. Stat. requires that hearings are conducted on time. The underlying provision was found to be unconstitutional - hence there is no requirement that administrative remedies are exhausted before litigation can be ensued. The practice of making certain petitioners wait, as is documented in Charlotte County, is an obvious effort to force petitioners to leave, and forfeit their rights to a hearing. It is an egregious form of rigging the process in favor of the property appraiser.
  
• An experience in which a corporate taxpayer allegedly flew into Florida to attend a hearing with her agent, a Florida attorney, only to be told upon arrival at a hearing that the property appraiser had asked for rescheduling is another form of abuse - for there is nothing in the statutes or DOR rules providing the property appraiser with a right to reschedule.
  
• Also pursuant to section 120.54 Fla. Stat. and addressed in part by AGO 2002-58, Value Adjustment Boards do not have statutory authority to draft or adopt local rules of procedure. Nor does a local government have authority to adopt an ordinance which creates conditions for the VAB when such conditions are not enumerated specifically by state statute. Palm Beach, Sarasota, Broward, Duval, and numerous other counties draft and adopt their own ad hoc “local rules“ or use unlawful documents (Broward, Escambia, Martin, Monroe, Collier, Lee, Charlotte, Manatee, Pinellas, Hillsborough, Orange, Pasco, Polk, Seminole, Indian River, Brevard, St. John, and more) promulgated by members of DOR or attorneys to property appraisers which steer the outcomes of hearings to favor the property appraisers. Unless rules are promulgated by DOR in full compliance with section 120.54 Fla. Stat., show the date of adoption by governor and cabinet, and are posted on DOR‘s web site, no VAB should use any document identified as VAB Rules, and/or Legal Guidelines.
  
• Further, DOR regularly receives locally adopted rules or notices of other documents or descriptions of procedures which DOR General Counsel knows, or should know, do not comply with governing statutes. Anyone in DOR who receives any document or description from a local government agency or office that does not conform strictly to the letter and spirit of governing laws should be required to inform the Chair of the County Commission and the elected Attorney General of the impropriety of such document or description and should request immediate intervention to protect petitioners from abuses.
  
• s. 194.032(3) Fla. Stat. is abused regularly by the adoption of dates certain for the conclusion of the VAB cycle. There is no such mandate, and any limitations related to rescheduling of petitions prejudices the rights of petitioners to enjoy a constitutional process.
  
• s. 194.011(3) restricts the promulgation of forms to DOR. Special magistrates in Broward, Lee, Duval among other venues, are using ad hoc forms, which include pre-determined statements favoring property appraisers.
  
• s. 194.011(4)(b) has been abused in Palm Beach County, where the Clerk has failed to provide property record cards and the attorney to the Clerk, engaging in ex parte communication with the attorney to the property appraiser, abdicated the responsibility of her office by failing to comply with this provision in the statutes, in effect stealing from the affected taxpayers who were deprived of lawful hearings.
  
• The statute governing the authority of the property appraiser, DOR, or the Auditor General to obtain confidential records is limited to language in section 195.027 and 12D-1.005 includes unauthorized delegations of legislative authority.

Access to a taxpayer's records shall be provided only in those instances in which it is determined that such records are necessary to determine either the classification or the value of the taxable nonhomestead property.

• In Indian River County, there is a public record example of the property appraiser bringing confidential documents to VAB hearings, and engaging in ex parte communication with members of the VAB, who appeared to not know how unlawful and unethical such communication was.

There are numerous other examples - these are among the most obvious. To the extent DOR is governed by section 112.311 (6), its primary obligation to taxpayers is to ensure the governing laws are enforced!

It is declared to be the policy of the state that public officers and employees, state and local, are agents of the people and hold their positions for the benefit of the public. They are bound to uphold the Constitution of the United States and the State Constitution and to perform efficiently and faithfully their duties under the laws of the federal, state, and local governments. Such officers and employees are bound to observe, in their official acts, the highest standards of ethics consistent with this code and the advisory opinions rendered with respect hereto regardless of personal considerations, recognizing that promoting the public interest and maintaining the respect of the people in their government must be of foremost concern.

2) Need to train Special Magistrates

Being licensed as an appraiser is not sufficient to ensure values are reviewed according to the laws governing assessments. Florida VABs are covered by USPAP’s Jurisdictional Exception language. And, the Jurisdictional Exceptions of Florida’s laws must be “considered properly” to result in lawful assessments. There is an obvious need to train value special magistrates through two steps.

Each appraiser who desires to be a value special magistrate should be required to know and comply with DOR Guidelines.

Formal training, however, should NOT be provided by DOR, which has an inherent conflict of interest through its own “aid and assist” property appraisers alleged mandate. Training should be provided by the same private company entities that train candidates for brokerage and appraisal licenses, and periodic refresher courses should be required.

In addition, each VAB should be required to conduct Orientations, which should be public meetings, and should teach special magistrates how to apply the criteria in 193.011 F.S. to the hearings they are engages to conduct. The VABs should not rely upon county attorneys or employees of the Clerk or Record Divisions to train. Training should be done by independent, objective outside attorneys who have twenty or more years of experience in Florida ad valorem tax law.

There should be a process for reporting special magistrates who do not comply with the governing laws and USPAP Code of Conduct. The Appraisal Board is one already established destination for recourse, however a complaint to the Appraisal Board does not address the losses of resources and rights imposed upon petitioners.

There is a need to ensure VAB members and their attorneys also are accountable when they do not comply with state laws, rules, and case law governing the process.

Among the training should be specific instructions related to evaluations of evidence. In Broward County, there are documented examples of special magistrates referring to documents they never received in evidence, quoting documents written by attorneys to property appraisers, and admissions of confusion about DOR documents. In Palm Beach County, there are anecdotal descriptions of special magistrates having lunch with or working for the attorneys to special magistrates.

3) Verification of Special Magistrate qualifications

DOR maintains a list of special magistrates. It should include license numbers and should be submitted to the Department of Professional Regulation for current compliance with licensing requirements. In addition, an affidavit should be signed by each special magistrate in which they swear to meeting state’s criteria, and attest that they will not have ex parte communication on specific cases with anyone in the office of a property appraiser.

Do you want to lower your property taxes? Ad valorem taxes are based upon valuation methods, modified by state laws and regulations. CPS knows due process procedures and value applications should be applied to your real and tangible taxes. If you have a question, or need professional services, for a free consultation, contact CPS at 1-305-372-9200 or email us at cps1@flash.net.