Is it illegal if Fulton skirts the law?

The curious image of Fulton County commissioners being led away in handcuffs – for the crime of voting on their annual budget – recently popped into PolitiFact’s head.

The reason? Fulton is taking steps to raise its countywide tax rate for the first time since 1991.

Leaders in Georgia’s largest county say the state constitution was on their side when they voted last year to repeal a property tax cap that affects only Fulton. That set the stage for this year’s proposed increase.

But state lawmakers point to House Bill 604, which bars Fulton from raising taxes until 2015. Any tax increase above the rollback rate – the millage that would raise the same money as last year – violates that law.

"Contrary to law, the Fulton County Commission has taken preliminary action to move forward to increase property taxes," state Sen. John Albers, R-Roswell, wrote in an email blast to constituents. "This is both illegal and immoral."

Illegal? That gives us the image of time in the clink – and makes it necessary to vet this one quickly since Fulton is taking up the issue of advertising the tax increase at its meeting Wednesday.

Fulton Commission Chairman John Eaves says the law created by HB 604 violates the state constitution by singling out the county and removing the job of its leadership to set taxes.

Moreover, advertising a rate increase doesn’t mean the County Commission will move forward to raise taxes, he said. The commission could lower the rate from the one advertised when it adopts the final rate this summer.

"A final millage rate will not be set until our citizens have had an opportunity to be heard," Eaves said. "We are duly elected to ensure that the services our citizens have come to expect are available to them."

The tax for general county services in Fulton is currently 10.211 mills. That’s about $817 on a $275,000 home with the $30,000 homestead exemption.

The proposed rate of 11.781 mills – a 17 percent increase above the rollback and a 15 percent jump from the existing rate -- would add about $125 to the bill from last year and $140 from the rollback rate.

State lawmakers from north Fulton have battled with the Democratic-led County Commission for years, saying their constituents do not get their money’s worth for those taxes.

After unsuccessfully pursuing state legislation to split Fulton into two counties by lopping off the northern part, lawmakers drove home their belief that county government spends too much money by passing HB 604.

"Fulton County already has a bloated budget, and this is us trying to make them responsible and follow the law," Albers said. "If not, we will seek a court battle, and that just means taxpayers will be paying even more to fight themselves. That makes no sense."

But does disagreeing with a law mean acting against it is illegal? Reminding us of why people hate lawyers (and reporters), the legal experts say no.

Unlawful, and illegal, are not synonyms in the technical sense, said Jack Williams, a professor of law at Georgia State University.

The legislative branch of government – whether it’s the Legislature at the state level or a county commission locally – can adopt laws and speak to whether something is lawful, Williams said.

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Kimberly Nelson

stated on December 3, 2013 in a meeting

"The commission form of government is definitely losing favor in the United States."  

But in our separated system, it’s up to the courts to decide whether a law is legal.

For instance, Congress passed the Affordable Care Act in 2010. But not until 2012, when the Supreme Court upheld what’s become known as Obamacare, did it become legal.

"It’s a political statement. It’s not a legal one," Williams said of the "illegal" claim. "He may be right in the end, but we don’t know yet. That’s why we pay taxes to build courthouses."

But does it matter that most people aren’t attorneys and therefore have a different understanding of what "illegal" means?

Maybe. After all, elected officials are sworn into office promising to act in accordance with state law and the constitution, said Mary Dudziak, a professor of law at Emory University.

"Acting contrary to (the law) would be a law violation, whether or not a court has ever ruled on it," Dudziak said. "And it is not out of line for a lawmaker to say that a local tax is ‘unlawful’ because it is in conflict with a state statute."

Ah, which brings us back to the difference between unlawful – something that violates a law – and illegal – a court’s decision on whether a law can be enforced.

In that sense, parsing words matter. Albers said it would be "illegal" for Fulton to raise its taxes.

That isn’t up to him any more than it is to the commission, regardless of common understanding of the word.

For that reason, we rate his statement as Mostly True.