September 22, 2010 in Idaho

Ethics ruling: Kick Hart off tax panel

By The Spokesman-Review
 
Betsy Russell photo

House Ethics Committee discusses Rep. Phil Hart’s case on Wednesday
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BOISE - A special House Ethics Committee voted unanimously on Wednesday to recommend that tax-protesting Rep. Phil Hart, R-Athol, be removed from the House Tax Committee while he presses his personal fight against the state over back income taxes.

“Frankly, I think he tarnishes the reputation of legislators and he tarnishes the institution of the Legislature,” declared Rep. Wendy Jaquet, D-Ketchum, vice-chair of the ethics panel.

The panel’s vote came only after its GOP members offered Hart a chance to voluntarily resign from the key House tax panel, which originates all tax legislation in the Idaho Legislature. “If he would voluntarily do that, why then I think this issue would be completely resolved … for now,” said Rep. Dell Raybould, R-Rexburg.

Hart refused.

After the panel took a 15-minute break to allow Hart, who was participating by phone, to confer with his Coeur d’Alene attorney, Starr Kelso, Kelso addressed the panel. “I am authorized on behalf of Rep. Hart to state that regardless of which direction the vote of the Ethics Committee goes, he will speak and discuss this issue with the speaker of the House and the committee membership,” Kelso said.

Jaquet tried to ask Hart a question about that, but Hart wouldn’t answer; Kelso said he was speaking for him. Hart also didn’t return a reporter’s calls later for comment, but Kelso later issued a defiant statement on his behalf questioning the committee’s authority to act against him.

Jaquet said Hart can talk to the speaker and his fellow committee members any time. “I don’t think the people would be very satisfied with that answer,” she said.

Kelso responded that in his view, the only issue before the committee is “whether or not there was a violation of ethics by the assertion of a constitutional provision. … I’m just clarifying the issue.”

There were two ethics complaints against Hart: Conflict of interest for his service on the tax committee while pressing his own personal state tax fight; and abuse of legislative privilege for repeatedly citing the constitutional privilege against arrest or civil process during legislative sessions in attempts to win delays in his federal and state tax cases. In late July, the panel dismissed conflict of interest charges against Hart related to his specific votes on the tax committee, on a 4-3 party-line vote.

But Raybould said those votes all affected a “class of people,” not just Hart, so he felt they could be justified. Hart’s personal tax fight, on the other hand, affects only him.

Hart stopped filing both federal and state income tax returns in 1996 while he pressed an unsuccessful lawsuit claiming the federal income tax was unconstitutional. He’s since been wrangling with both federal and state authorities over back payments; according to public records including IRS liens, Hart owes nearly $700,000 in back federal and state taxes, penalties and interest. Hart says he’s paid $120,000 in state and federal taxes since 2005.

He’s currently fighting an order from the state Tax Commission to pay $53,000 in back state income taxes, penalties and interest. Hart appealed the order, but the state Board of Tax Appeals rejected his appeal, saying it wasn’t filed in time. Hart’s 91-day appeal period ran out on Jan. 1, 2010; he argued that because that was within 10 days of the start of the legislative session, he should have months longer to file, under Idaho’s constitutional privilege for legislators.

The board rejected that argument, saying even if the privilege applied, Hart still filed too late, and also paid a required fee even later.

Hart has now filed a motion for reconsideration, which his lawyer provided to the Ethics Committee on Wednesday. In it, he questions how timelines affect holidays, and also says his tax problems are “entirely the result of political persecution of Mr. Hart by the IRS.”

Because the Board of Tax Appeals didn’t address whether the legislative privilege can be used in such a case, and no Idaho court cases address that issue, ethics committee members said they were reluctant to rule on the abuse of privilege charge against Hart, which they voted 5-2 to dismiss.

Rep. George Sayler, D-Coeur d’Alene, voted with the panel’s four Republicans in favor of that motion. “I don’t see that we had a clear standard to judge by, in terms of the immunity clause,” he said. “I certainly thought it was inappropriate, and cast a black mark on the legislative body, and I would hope that Rep. Hart would change his practice, but in terms of a clear violation of that clause, I didn’t see it.”

Rep. Tom Loertscher, R-Iona, the committee’s chairman, said he’s wondered why Hart waited so long to file his appeal, but decided “it’s immaterial.” He added, “That’s not the way I would do business.”

Hart was running unopposed for a fourth term in November until Hayden businessman Howard Griffiths decided to run against him as a write-in because of his tax woes.

Loertscher said, “I think he’s got enough constituents up there - write the other guy in if they don’t approve of what he’s done.”


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