TAX COLLECTION ETHICS John Bolster, Partner Linebarger Goggan Blair & Sampson, LLP 2 Changes Due to SB 546 • County Tax Assessor/Collectors and their employees will no longer be subject to TDLR oversight • County Tax Assessor/Collectors and their employees will not be subject to TDLR rules • Continuing Education requirement changes to 20 hours per calendar year and new County TACs will be required to take an ethics and constitutional responsibility course within 90 days of taking office. This requirement applies to all County TACs even those who do not collect taxes. 3 Changes Due to SB 546 continued • County Tax Assessor/Collectors who do not comply with the education requirements may be removed from office under Subchapter B, Chapter 87, Local Government Code for incompetency. • Anticipate the classes to stay the same with the exception of the course required for new County TACs. It is not clear what, if any, examinations you will be required to pass. • Effective date is September 1, 2013 except for the provision requiring the class for new County TACs which take effect January 1, 2014 4 TDLR Rules • The Property Tax Professional Code of Ethics remains an excellent guide to proper and ethical behavior for County Tax Assessors and their staff • Abiding by the tenets contained in the Code of Ethics will assure the public perceives that your office is run with the highest ethical standards • The recent controversy involving the IRS illustrates how damaging the perception of favoritism and unequal treatment can be to a tax collection agency even if there are no criminal violations. 5 FAIR & EQUAL COLLECTION PRACTICES – TDLR RULE 94.71 94.71 a) Uniformity of collection practices Hardships Special Requests Have a set policy regarding litigation targets (there is no requirement that everybody be treated equally, only uniformly) Tax Warrants Workflow 6 FAIR & EQUAL COLLECTION PRACTICES – TDLR RULE 94.71 94.71 c) Knowingly providing incorrect information Tax Warrants Tax Statements 7 FAIR & EQUAL COLLECTION PRACTICES – TDLR RULE 94.71 94.71 d) Misleading the public Collection practice inquiries – Do not threaten to take actions that you will not take. Tax sale inquiries 8 GENERAL ETHICAL CONSIDERATIONS REGARDING TAX SALES Uniform rules required Who can bid, or better question, who should bid? 9 Penal Code Provisions • Until and Unless the County Tax Assessors adopt their own rules the primary enforcement mechanism to insure ethical behavior in the County Tax Office will be through criminal prosecution. • However always remember just because its not criminal does not mean it is ethical. 10 Bribery • Sec 36.02 Penal Code • You commit the is offense if you accept a benefit in return for a decision, opinion, recommendation, vote, or other exercise of discretion as a public servant. • Benefit means anything reasonably regarded as pecuniary gain or pecuniary advantage, including benefit to any other person in which whose welfare you have a direct and substantial interest. • The Benefit received can be delivered after the action in question and it is still a crime • 2nd degree Felony 11 Improper Influence • Sec. 36.04 Penal Code • This offense could be committed by attempting to influence the decisions of the Commissioner’s Court on the basis of considerations other than those authorized by law. • Class A misdemeanor 12 Obstruction or Retaliation • Sec 36.06 penal Code • A violation occurs if you intentionally or knowingly harm or threaten harm to another by an unlawful act in retaliation for their reporting a crime or to prevent them from reporting a crime • It is possible to be guilty of violating this even when what the “crime” reported is determined not to be criminal. • 3rd Degree Felony-punishment could be more serious than for the original crime 13 Gifts to Public Servants • Not allowed to receive gifts from anybody who you know • • • • • • is interested in or likely to become interested in any contract, payment, claim or transaction involving exercise of your discretion. Does not apply to gifts valued at less than $50 Does not apply to Political Contributions Does not apply to Food, Lodging, Transportation, or entertainment accepted as a guest (gift giver must accompany you) Sec 36.08 Penal Code Class A Misdemeanor Unlike Bribery this does not require a quid pro quo 14 Abuse of Official Capacity • Section 39.02 Penal Code • You commit this offense if you with the intent to obtain a benefit • • • • or with intent to harm or defraud another you violate a law relating to your office or employment (think tax code) or you misuse government property, services, personnel or any other thing of value belonging to the government. Very Broad Statute Violation of a law relating to your office is a Class A Misdemeanor Misuse can be anywhere from a Class A misdemeanor to a 1st Degree Felony depending on the value of what is misused Most Common Violation 15 Official Oppression • 39.03 Penal Code • Enforcement of an illegal tax lien, denying a taxpayer their rights under the tax code, and sexual harassment under color of office would be violations of this law. • Color of Office is when the public servant acts or purports to act in an official capacity or takes advantage of such capacity • Sexual Harassment means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition off a persons exercise or enjoyment of any right either explicitly or implicitly-no outcry required • Class A Misdemeanor-In the Private Sector you get sued and you can here as well, but additionally there can be a criminal prosecution. 16 Misuse of Official Information • Must involve non-public information (not much of this in a • • • • tax office) Use such information to assist you or another in any type of business transaction (the success of the transaction does not matter) Or, uses or discloses the information for a nongovernmental purpose with the intent to obtain a benefit or harm another 3rd Degree Felony Section 39.06 Penal Code 17 QUESTIONS?