School attorneys urged to challenge tax appeals

School districts that stand to lose revenue because of any large, unexplained property tax refund should investigate the circumstances carefully, one school attorney says. School district representatives should begin by filing requests under the Freedom of Information Act to the county board of review for documents relating to the assessment appeal, but they should also seek explanations from the county assessor's legal department.

"The state's attorney's office also needs to be contacted for explanations about such refunds," according to attorney Ares G. Dalianis, who spoke during a pre-conference seminar on school law.

Dalianis appeared at the 18th annual school law seminar, held Friday, Nov. 19, 2004, at the Hyatt Regency Chicago. The event is sponsored by the Illinois Council of School Attorneys, which is affiliated with IASB and the National School Boards Association. The event gave school attorneys a chance to discuss vital legal issues facing their school clients, including harassment claims, student residency challenges, and special education concerns.

Dalianis, of Franczek Sullivan, P.C., told assembled school attorneys that both the law department of the state's attorney's office and the county assessor's office were helpful in getting a Cook County tax appeal reversed. As a result of his challenge to a successful property tax appeal, the lion's share of a questionable $1.7 million tax refund was ordered to be repaid to local schools and other taxing districts. The order concerned an Oak Park hospital's successful property tax appeal for an under-occupied medical office building.

The five-story building was built in 2000 and opened in January 2001 next door to the hospital. The entire new building was "master leased" to the hospital, which legally meant tax revenue would not be dependent on the occupancy rate of the building. Yet the hospital had sought and won a tax appeal based on an irrelevant claim that nearly 80 percent of the building was not occupied.

Another seminar discussion dealt with preparing a law case to challenge a student's residency. Attorney James G. Wargo, of Klein, Thorpe and Jenkins, Ltd., said a school district's residency investigator is commonly a key witness in student residency cases.

Proving residency under Illinois law requires: 1) a student's physical presence at a fixed nighttime abode within the school district on a regular or continual basis; and 2) intent to make that location a permanent home.

Wargo also said photos are an extremely helpful form of evidence in such cases, but school investigators may also gather information from interviews, observations, and witnesses as admissible evidence. Finally, investigators must strive to state the facts as simply as possible, he said.

On yet another hot legal topic - school board ethics and gift ban policies - attorney Vernon A Kowal, of Sedgwick, Detert, Moran & Arnold, LLP, said enforcement of the State Officials and Employee Ethics Act falls into a gray area.

"Many attorneys believe that school boards do not have the authority to prosecute offenders and adjudicate fines and penalties," according to Kowal. "However, the only way the statute seems to work at all would be as the [Illinois] Attorney General outlines, i.e., that school boards have an implied duty to prosecute offenders and adjudicate fines and penalties..."

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