Civil Division-New Castle County
 

The Honorable Bruce C. Ennis
House of Representatives
Legislative Hall
Dover, DE 19902 D580C
 

RE: Kent County Levy Court/Board of Assessment

Dear Representative Ennis:
 

You have asked for an opinion on whether Kent County Levy Court can, independent of an act of the General Assembly, create a new Department of Financial Services and move the Board of Assessment's staff under that new department. In addition, you have forwarded the written opinions of House Attorney Robert J. Leoni, Esquire and Senate Attorney Francis J. Murphy, Esquire who both agree that specific legislation is required to permit the Levy Court to transfer the Board of Assessment's staff to a newly created county department. Consistent with the conclusions reached by legislative counsel, and for the reasons set forth below, we agree that the Levy Court cannot transfer the staff of the Board of Assessment to a Department of Finance created by the County Government without specific statutory authority.

Both the Levy Court and the Board of Assessment are created by statute. The Levy Court, consisting of seven elected Commissioners, was created by the General Assembly as the governing body of Kent County. 9 Del.C. Chapter 41. The powers of Levy Court include "the power to fix a tax rate upon the assessed valuation of all real property in Kent County, subject to assessment by the County." 9 Del.C. § 4110(b) (emphasis added). The power to value and assess property in Kent County is vested in a Board of Assessment, which is also a body created and authorized by statute. 9 Del.C. Chapters 82, 83. The Board of Assessment consists of three members appointed by the Levy Court. 9 Del.C. § 8201(b). 9 Del.C. Chapter 83 was passed by the General Assembly to specifically prescribe the mechanism for valuation and assessment of property by the Board of Assessment. The Board of Assessment determines the assessed value of all property in Kent County and then reports that assessment to Levy Court for purposes of taxation. 9 Del.C. §§ 8301, 8314. While there is certainly interaction between the two bodies, the Board of Assessment, by statute, is independent of the Levy Court. The Board of Assessment is authorized to employ its own staff. 9 Del.C. §8208. While the compensation of Board staff is fixed by Levy Court, the statute specifically provides that "[t]he duties of [Board of Assessment] employees shall be prescribed by the board of assessment which employs them. Id.

With regard to assessment valuations, 9 Del.C. §8316 provides that "[t]he county governing body [Levy Court] shall have no jurisdiction over, or supervision over, the assessment lists, nor shall it have power to change, alter or amend the same. . . . [T]he assessment lists, as they shall be certified by the board of assessment . . . shall be deemed to be correct by the county governing body and shall be considered by it as final and conclusive." (emphasis added).

Sections 8208 and 8316 provide strong evidence that the integral functions of the Board of Assessment are not to be controlled or regulated by Levy Court. Given the statutory mandate that Levy Court shall have no jurisdiction or supervision over valuation or assessment--the primary reason for the existence of the Board--it necessarily follows that Levy Court should have no direct jurisdiction or supervision over the internal workings and day-to-day operations of the Board. Indeed, § 8208 unambiguously states that Board employees "shall" perform their duties only at the behest of the Board that employs them. Control by Levy Court over the staff of the Board of Assessment would essentially amount to control over the functions of the Board itself, an outcome prohibited by statute.

The importance of independence between a Levy Court and its Assessor was recognized as early as 1892 in a Chancery Court decision, Biggs v. Buckingham, Del. Ch., 23 A. 858 (1892). In that case, involving the then New Castle Levy Court and Office of Assessor, the Court held that the deletion of names from the assessment list by the Levy Court was an unlawful exercise of power. The Court explained that "[t]he powers and functions of the levy court are derived from and are clearly defined in the acts of the legislature. They are truly statutory. The levy court possesses no inherent or original powers. Its functions and powers are defined and limited by statutory law." Id. at 864. Biggs noted that the office of assessor was also created by law with clearly defined and precise duties. Thus, the Court found there was no authority for the levy court to change the content of the assessment lists, whose preparation was within the exclusive control of the office of the assessor.

The independence of the two bodies is logical considering their governmental roles. The Board of Assessment makes valuations for purposes of taxation but has no control over taxation; Levy Court imposes taxes but only based upon valuations which were made independently by another body. 9 Del.C. § 4110(b) specifically provides that the Kent County Levy Court's power of taxation is "subject to assessment by the County." Given that the Board of Assessment has been established as an independent body by the General Assembly, with the right to control its own employees and activities, it could not fall under the direct control of Levy Court or one of its departments absent specific authority from the General Assembly. The Levy Court suggests that its establishment of a Regional Planning Commission and Board of Adjustment would similarly allow the creation of a Department of Finance encompassing the Board of Assessment. This is not the case. The General Assembly has, by statute, directly empowered Levy Court to establish the Regional Planning Commission (9 Del.C. § 4803) and Board of Adjustment (9 Del.C. § 4913). No such statutory authority exists for the placement of the Board of Assessment under Levy Court's control. Rather, the statutory scheme suggests that such an arrangement would be impermissible. Indeed, it is questionable whether Levy Court would be authorized to set up a "Department of Finance" absent specific statutory authority to do so. While both New Castle County and Sussex County have an "Office of Finance" and "Department of Finance," respectively, both of these departments are created by statute with specifically enumerated powers and functions. (9 Del.C. §§ 1371; 7004).

The government of Kent County has been granted "all powers under the Constitution of the State it would be competent for the General Assembly to grant by specific enumeration, and which are not denied by statute . . . ." 9 Del.C. § 4110(a). The current statutory scheme, establishing the Board of Assessment as a separate body, and the historical independence between the county government and its Board of Assessment suggest strongly that Levy Court could not bring the office of the Board of Assessment or its staff under its auspices absent specific authority to do so from the Legislature.

Very truly yours,
 

Michael J. Rich
State Solicitor
 
 

cc: The Honorable M. Jane Brady
Mr. Phillip G. Johnson