The Machinery Act makes it clear that the “governing board” (aka the board of county commissioners or the city council) has the sole authority to appoint and remove both assessors and tax collectors. GS 105-294 and -349.   But the statutes are silent as to the regular supervision of local tax officials. To whom may assessors and collectors be required to report on a regular basis? How much control may a supervisor exert over decisions made by tax officials? This blog examines some of the legal and practical issues involved in these types of questions.

1. May the board require that the assessor and tax collector report to the manager?

Yes. The governing board cannot delegate its authority to appoint or remove an assessor or collector because that authority is expressly granted to the board and only the board by statute.  (See this blog post for more on situations in which the authority to act rests exclusively with a local governing board.) But the Machinery Act does not require the board to engage in direct supervision of these appointed tax officials. And the statutes that govern managers’ duties (GS 153A-82 (counties) and GS 160A-148 (cities)) authorize managers to “direct and supervise” all county or city offices, departments, boards and agencies subject to the “general control” of the governing board. As a result, the board can (and probably should, in larger governments) delegate the regular supervision of the assessor and tax collector to the manager.

I think that a manager may further delegate the supervision of the tax office to an assistant manager.  Admittedly, no statute directly answers this question. But this common approach is almost certainly acceptable because the manager supervises their assistants and therefore would be indirectly supervising the tax office.

2. Who sets the salaries for the assessor and the tax collector?

The Machinery Act expressly grants the governing board the authority to set compensation for these two appointed officials in GS 105-294 and -349.  But this simply means that the board must make the final decision.  The manager can have a large say in these decisions by recommending to the board initial salary levels and annual increases/decreases for the assessor and collector.

3. May supervisors require the assessor or collector to engage in tasks that are not listed in the statutes that define the obligations for those two positions?

Yes. GS 105-296 lists at least ten specific duties for the assessor, while GS 105-350 lists nine for the collector.  But neither of those lists should be viewed as exclusive.  Basically, the Machinery Act sets the floor for the qualifications and duties of assessors and collectors.  Governing boards (or managers, with the blessing of their boards) are free to raise that floor by adding additional expectations to those jobs.  Ideally those expectations should be communicated clearly and in a timely fashion so that there are no surprises for either the board or the appointees.

Assessors and collectors can be required to follow general employment rules and regulations for their local governments including vacation and timesheet policies, performance reviews, and organizational training obligations.  The board can also add position-specific requirements not listed in the Machinery Act.  For example, a board could require that a new tax collector become certified by the NCTCA within a certain time period, even though such certification is not required by statute. Or the board could require the assessor to conduct a certain number of public appearances with community groups to explain the reappraisal process.

4. May supervisors control specific tax administration decisions made by the assessor and collector?

As a starting point for this discussion, it is important to distinguish between statutory obligations of the assessor and collector and discretionary decisions available to those officials.  Supervisors, be they governing boards or managers, have no right to demand that assessors or collectors violate a statutory obligation.  But supervisors do possess the authority to direct assessors and collectors how to exercise discretion granted to them under the Machinery Act.

Consider an obviously egregious example of supervisory overreach concerning the assessor’s statutory obligation to appraise property at its “true value in money” created by GS 105-283. Assume that the manager demands that the assessor reduce the tax appraisal of property owned by the manager’s brother by 50%.  Unless the assessor learns of facts that justify such a reduction, the assessor should of course refuse to comply with the manager’s demand.

Saying “no” to the manager might lead to a messy situation for the assessor.  The manager could urge the board to fire the assessor for failure to comply with her demands.  But if that matter were litigated, it seems certain that a court would side with the assessor and conclude that the refusal to comply with an order to violate the Machinery Act would not constitute the necessary “good cause” to remove an assessor in the middle of their term.

Compare that to a scenario that was recently discussed on the Ptax listserv (join here if you aren’t already a subscriber): must the collector comply with a request from the board to provide a list of properties scheduled for foreclosure before those files are handed over to the foreclosure attorney? What if the board then directs the collector not to pursue foreclosure against some of those properties?

I think the collector would be obligated to comply with these orders.  They concern the tax collector’s discretion, not a statutory duty. While the Machinery Act creates an obligation for the collector to use “all lawful means” to collect taxes with which they are charged (GS 105-350(1)), the  Machinery Act does not mandate exactly when and how specific collection remedies must be employed. The board can direct the collector when to use foreclosure and other remedies and when not to do so, because these decisions are discretionary.  The board (or the manager, again with the board’s approval) has the authority to direct the collector how to exercise this discretion.

To be clear, there are good reasons for elected officials to remove themselves from collection decisions.  The use of any enforced collection remedy should be based on objective, equitable standards, not on personal relationships. The risk of inequitable or discriminatory enforcement greatly increases if foreclosure decisions are made on subjective grounds (“Don’t foreclose on my Aunt Edna, she’s a good woman and really trying her best to make ends meet.”).  What’s more, such interference by supervisors would rightly drive away qualified tax officials. Who wants to work in an environment where their every action is micromanaged?

When asked about this issue on Ptax, the responses suggest that most tax officials work for elected officials who respect their professional judgment.  A majority of collectors reported that they do not seek approval from their boards before moving forward with foreclosures. That said, many collectors mentioned their concerns for transparency and said that of course they would provide lists of potential foreclosures if requested by their boards.  Others described situations in which they gave advance notice to the board concerning a collection action that was likely to get noticed by the press or cause a stir because of the taxpayer involved.  No collector reported that their board made the final decisions on every foreclosure.

Regardless, if your board decides it wants to control decisions about foreclosures and similar discretionary tax actions, then I think you must comply or begin considering other employment options. (I hear the Carolina Panthers are hiring.)