When times were happier. Commissioners Dan Raley Center and Tom Mattingly, right, disagreed with Commissioner Tommy McKay, and the rest of the board’s decision to challenge a state opinion calling the senior property tax credit program unconstitutional.  -- The Bay Net photo by Sean Rice

The Board of St. Mary’s Commissioners is legally challenging an opinion by an Assistant Maryland Attorney General that states the county’s senior property tax credit program is unconstitutional.

The Board on Tuesday unanimously voted to seek a two-year extension on the senior property tax credit, which provides property owners 70 years and older a credit for the home they reside in that keeps the taxes at that level for life. The Maryland General Assembly required the county to add a sunset provision on the program.

The Board sought legislative approval to remove the sunset clause completely. A committee meeting in Annapolis earlier this month called to discuss the issue was abruptly cancelled when a surprise note from the Maryland Department of Taxation was attached to the bill saying the tax credit itself flies in the face of the Maryland constitution.

“During the process of lifting the sunset, someone requested an opinion from the attorney general’s office,” Commissioner President Tommy McKay said Tuesday when the discussion began. “I think we need to defend our ordinance, and provide as much security for our senior population. I think we need to argue that we did the right thing.”

St. Mary’s Deputy County Attorney Heidi Dudderar agreed, saying Assistant A.G. Bonnie Kirkland was incorrect in her assessment of the law, but she stopped short of saying the decision was absurd.

“The county attorney’s office doesn’t agree with Ms. Kirkland’s assessment,” Dudderar said. “It’s also important to note Ms. Kirkland did not cite any case law, only attorney general opinions.”

Dudderar went on to say she is “moe than willing” to fight the issue in court.

The Board adopted the law in 2004, and it became effective in 2005 when the state legislature approved enabling legislation. The assembly required the county define an income limitation for the program and add a sunset clase, which the county later did.

So far 765 seniors have used the program, with another 200 applications pending.

In Kirkland’s opinion, the credit program violates the tax “uniformity” clause in the state constitution. And she laid out options for the county that would solve the problem, Dudderar said. They were: leave the sunset provision intact or extend it, amend the law so it is “uniform”, or use other tax credit programs provided by the state.

“We dispute her analysis, but for the sake of time … an extension of the sunset provision may be the most prudent action to take that this time,” Dudderar said.

Dudderar said the county legal department did its research, and the county program is not much different that the state’s homestead tax credit, or the tax credit offered for disabled veterans. Both of which would not be “uniform” in Kirkland’s view.

McKay asked Dudderar if during the time she has been with county government has the county received “any other unsolicited opinions from the Attorney General.” She replied no.

McKay said the board should pursuit the issue in Circuit Court, and hire Dudderar on a contractual basis if needed, because she will be leaving her position next month for private practice.

“At least then we done the best we can to try to provide our seniors with tax relief” McKay said. “To do nothing would leave seniors in limbo.”

Dudderar asked the board to approve a motion to seek an extension to 2010, and “during that time, we’ll have the time to review the program, and make choices that are not based on two weeks of analysis,” noting the surprise and short notice of the Attorney General’s decision.

“Unfortunately, this is the kind of problem you get into when we adopt an ordinance without enabling legislation,” said Commissioner Tommy Mattingly, who later voted against challenging the Attorney’s Decision.

“My feeling at this point is to extend the deadline for five years, to give us time to look at the constitutionality,” Mattingly continued, adding he wouldn’t want in the future to have to send notices out to seniors asking them to return money.

Dudderar responded that the attorney general’s opinion is that the program is constitutional, as long as it has the sunset, eluding that that would not happen. “What we’re really asking is what happens beyond 2010.”

 “We’re people, and we’re not perfect,” Commissioner Larry Jarboe said, “And no one was campaigning on this when it first came up … the people came to us.”

“I hate to see us taking sides on this, county vs. state,” Jarboe continued. He later made a motion, which was approved, for the county to take the issue to court and ask the state to research it at the same time to find a solution.

Commissioner Dan Raley made the motion to seek the extension, which was seconded by Mattingly. Moments later, the two voted against the motion by Jarboe to challenge the decision. Mattingly voted no, Raley did not answer the call for a vote.

Dudderar said the motion to be filed in Circuit Court would be a Petition for Declaratory judgment, a process without opposition. If the court declares the law unconstitutional, the board would then have to determine if want to appeal to a higher court or move on to different direction, she said.