Despite an Arizona state law, the city of Tucson can move ahead with a planned July vote on a sales tax increase, Attorney General Kris Mayes said.
In February, the City Council set a summer vote on a possible sales tax — but Arizona law requires such elections go before voters only on November ballots.
Arizona Sen. Rosanna Gabaldón then asked Mayes if Tucson can legally go ahead with a scheduled sales tax election, despite the “apparent conflict” with state law.
Mayes made her determination this week, finding that Tucson, as a charter city, can set the dates of its own elections.
“The timing of Tucson’s election to amend the Charter and authorize a transaction privilege tax is a matter of purely municipal concern” and the city “is not preempted from holding such an election on a different date from that prescribed” in state law, she said in a legal opinion.
The Council unanimously voted to hold the election — without yet determining the rate of a potential increase or what the funds would be dedicated to — as jockeying over an extension of the Regional Transportation Authority continues. The Council called the vote for August 6, but the state Legislature then moved the date of the summer elections to July 30.
The move is a gambit to apply pressure to the other members of the RTA (Pima County, area Native tribes and incorporated towns), with Tucson potentially going its own way if the all-Democratic Council doesn’t believe city residents are getting a fair share of the taxes that would be raised under a 20-year RTA Next plan.
“I think the law in Arizona is quite clear that the statute limiting this type of election to the statewide general election date violates the Arizona Constitution and the authority of charter cities to conduct local elections,” City Attorney Mike Rankin told the Sentinel last month.
Mayes concurred with the city’s stance.
“Under Arizona law, when action under a city’s charter conflicts with state law, the municipal action prevails if it is on a matter of purely municipal concern. The timing of Tucson’s special election to amend its Charter is a matter of purely municipal concern, even though the proposed amendment concerns a transaction privilege tax,” she wrote.
Tuesday, Rankin said, “I appreciate the attorney general’s careful and thorough review of the long history of case law relating to this issue, most of it involving Tucson.”
State law vs. Tucson Charter
Arizona Revised Statute 16-204 requires that any city election held to authorize a “transaction privilege tax” (the formal term for a sales tax) must be held on the first Tuesday after the first Monday in November.
Members of the Legislature are allowed to ask the attorney general if a state law is being violated. Gabaldón requested an “expedited opinion” on the matter.
While most such requests are prompted by lawmakers attempting to halt actions they believe violate the law, the LD 21 Democrat’s Feb. 23 letter to Mayes is couched in language that favors Tucson’s move. Gabaldón’s district stretches from Douglas and Nogales, through Sahuarita and into parts of Tucson’s South Side.
“I do not make this request for an expedited opinion lightly, but time is of the absolute essence. If Tucson’s authority to control the method and manner of its own elections does not extend to a TPT election on a state consolidated election date of the city’s choice, then Tucson’s officials must have the opportunity to correct this action in order to meet the deadlines that would apply to a November 2024 timeframe. I would respectfully ask that an opinion be issued by your office no later than 30 days from the date of this request,” the state senator wrote.
The Tucson City Charter (essentially the city’s constitution) doesn’t specify a limit on dates when the Council can call for a sales tax election.
Tucson has won a number of election court cases, with judges finding that the Charter’s provisions for holding elections in odd-numbered years and setting up the city’s system of nominating Council members by ward and electing them citywide are valid and override state laws that attempted to limit them.
“From the earliest days of Arizona statehood, state law has paid special solicitude to cities. That solicitude is reflected in the home rule charter provision, found in the Arizona Constitution,” the attorney general wrote.
While Mayes agreed that the city has the authority to call for a summer sales tax election, right-wing opponents of Tucson’s Democratic leadership may still file a suit over the matter.
City questions RTA Next
Tucson City Manager Mike Ortega — set to leave his position this summer — has echoed his elected bosses in exploring a city-only alternate path to transportation improvements.
In a memo to Mayor Regina Romero and the six members of the Council sent just days after the election vote, he wrote that “I may not be able to in good conscience recommend the city of Tucson continue to participate in RTA Next.”
City officials want a bigger share of the taxes paid into the regional authority, pointing out that a majority of the sales taxes collected come from transactions inside the city limits — and that the city has most of the voters who would be necessary to approve a renewed multi-decade regional plan.
RTA Executive Director Farhad Moghimi has responded by noting that about 73 percent of the “categorical projects” under the 2006 plan have been within the city, and that under the current draft plan for RTA Next, 53 percent of the projects would go to Tucson. The city has 52 percent of the county’s population, he said.
“The RTA is a regional taxing district,” he told the Sentinel. “This means that the Arizona Department of Revenue collects money from “the district” and not from any single jurisdiction. (No point of sales report is provided to the RTA.) Why is this important to note? Everyone pays in. No matter where anyone shops in the district, they pay the RTA half-cent sales tax. As a whole, the district wants to offer a fair distribution of the regional dollars collected to everyone in the district.”
“The (RTA) board is fully committed to ensure a balanced regional distribution of benefits,” he said. “Otherwise, in my opinion, the voters won’t support any proposal that is not a fair distribution of benefits.”
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