CLEARFIELD – On Tuesday, Solicitor Kim Kesner addressed the Clearfield County Commissioners’ appeal of the county’s Tax Appeals Board’s decision to reduce the tax assessments of the Wal-Mart Supercenters in Clearfield and DuBois.
Kesner explained that he had gone out-of-town and prior to his absence, the commissioners learned of the Tax Appeals Board’s decision in these cases. In mid-October, the Tax Appeals Board reduced the market and assessed values of the Clearfield Wal-Mart. It also reduced the assessed value of the DuBois Wal-Mart.
Kesner subsequently advised the commissioners that it was an “unprecedented situation.” Since becoming solicitor in 1988, he said there had not been an instance where the county, as the taxing district, had chosen to appeal a decision of the Tax Appeals Board.
According to Kesner, he has represented both the commissioners and the Tax Appeals Board on a consistent basis. He said the law permits the Tax Appeals Board to have separate counsel. Prior to his absence, Kesner advised the commissioners of his conflict in this matter.
The commissioners, he said, took action to retain Attorney Peter Smith of Clearfield as independent counsel for the matter. Upon his return, he learned that the commissioners had filed an appeal regarding the tax decision for both the Clearfield and DuBois Wal-Marts.
Kesner said he’d recently met with the county’s chief assessor about the Wal-Mart tax decision and the county’s appeal. He said they intend to schedule a joint meeting with the Tax Appeals Board in order to review options for proceeding with the matter.
Like the commissioners, he said the Tax Appeals Board can elect to have independent counsel. In that case, he said the Tax Appeals Board would have to seek funding from the commissioners. However, he said rules of ethics permit waiver of conflict when an attorney believes he can proceed without adversely impacting the entities and when both entities agree to a waiver.
“If they [the Tax Appeals Board] want independent counsel, the issue will end there,” said Kesner. “If they want me to represent them in this matter, I will need a waiver from both the Tax Appeals Board and the commissioners, which you’re not obliged to do.”
Kesner also wanted to publicly comment on the Tax Appeals Board’s decision to reduce the tax assessments of the Wal-Mart Supercenters in Clearfield and DuBois. He said without any disrespect to the appeals filed by the county and school districts, the Tax Appeals Board “had to make the decision it made.”
According to him, the law is very clear and states that when an appeal is filed, the Tax Appeals Board must determine the current market value and then apply either the predetermined ratio, which is set by the commissioners at 25 percent, or the common level ratio, which is determined by the State Tax Equalization Board (STEB).
Kesner pointed out that STEB changes the CLR on an annual basis. Clearfield County, he said, experienced a “significant change” in its CLR between 2013 and the current-year.
Going into the October hearing, he said the Tax Appeals Board was required, by law, to either accept or reject any evidence presented on the current market value of the Clearfield and DuBois Wal-Marts. He said the only evidence presented to the Tax Appeals Board was a Wal-Mart appraisal.
In order for it to be rejected, Kesner said the Tax Appeals Board would have been required to find it completely lacking in credibility and support. “Otherwise, it’s the only evidence presented, and the board has to accept it and apply the CLR.
“I believe there’s been an adverse public perception of the board that it – on its own – decided to give Wal-Mart a break and to reduce its value. The board did what it was legally obliged to do,” he said. He added that any appeal of the Tax Appeals Board decision can challenge whether or not the Wal-Mart appraisal is accurate and sufficient.
In conclusion, Kesner reiterated this was an unprecedented and complicated matter both legally and ethically. He said he’s been treated as counsel for the Tax Appeals Board although he hasn’t entered an appearance. Kesner said in the near future, he plans to meet with the Tax Appeals Board and to clarify his status with the court.
Commissioner John A. Sobel, chair, said he’s known Kesner for 36 years, and has never known him to stray from the code of ethics. “I have no concerns here,” he said.
Also in relation to the Wal-Mart tax decision, Sobel advised the commissioners that Smith had recommended hiring a representative from Sammartino and Stout Inc. of Erie to conduct an appraisal of both the Clearfield and DuBois Wal-Marts. The commissioners approved the same with a 3-0 vote.
The cost of the appraisal will be $2,500 and shared by taxing districts involved with the appeal process, said Sobel.
