With his client facing “willful or corrupt misconduct charges” following a Napa County Grand Jury investigation, Assessor John Tuteur’s attorney is blaming a grand jury foreperson for leading his colleagues down the wrong path.
“This entire misadventure, at the hands of an overzealous foreperson of the grand jury, has been a waste of judicial and public resources, to satisfy the whim of one person,” stated legal papers filed with Napa County Superior Court.
But the grand jury hasn’t backed off charges such as failure to pay back property taxes. An attorney on its behalf released a written statement Tuesday saying that the grand jury carefully considered the evidence and made findings based on that evidence.
In March, the 2017-18 Napa County Grand Jury accused Tuteur of four counts of wrongdoing and called for his removal from the elected office. The state Attorney General’s Office filed the grand jury’s case with Napa County Superior Court.
Tuteur, who has been assessor since 1987, plans to appear in court to request that the court dismiss all charges. He said Tuesday that the rescheduled date is Sept. 14.
Papers filed by Tuteur’s attorney with the court reveal Tuteur’s defense strategies. Grand jury foreperson Alan Charles Dell’Ario, who is a local attorney, is described as being the prime mover behind the accusations.
Dell’Ario “became enchanted” by complaints by a disgruntled Assessor’s Office employee, the court papers said. During grand jury hearings, he questioned all witnesses, presented documents that he selected as evidence and instructed his grand jury peers on the legal test for Tuteur’s removal, the papers said.
He gave the grand jury superficial legal instructions on conflict-of-interest and other matters, the papers said.
“The incomplete instructions by Mr. Dell’Ario served the sole purpose of leading his fellow grand jurors, who had no knowledge of the law otherwise, like lemmings to the sea,” the papers said.
Dell’Ario in “his zeal to ‘take down’ Mr. Tuteur” unfortunately “stumbled into legal and factual minefields,” the papers said. They describe Tuteur as being a long-serving public employee highly regarded by his constituents and the state’s assessor community.
When contacted by the Napa Valley Register, Dell’Ario didn’t respond directly. Rather, attorney Steven Piser, who has represented the grand jury, released a statement saying the grand jury cannot discuss its deliberations and investigative sessions.
“It is not unusual for one whose conduct has been evaluated by an impartial body to lash out at those who evaluated and criticized that conduct,” the statement said.
The grand jury accuses Tuteur of four counts involving behavior that, if true, ranges from sloppy to self-serving. Papers filed in Napa County Superior Court by attorney Thomas Barth on Tuteur’s behalf refute each count.
One charge involves whether Tuteur skirted paying back property taxes on grazing land his family leases out for a cell tower, to the total of about $20,000 in taxes over eight years. Money from the cell tower lease must be factored into the appraisal for the property tax bill.
The grand jury accusation said Tuteur in 2008 performed an assessment of his income stream from the lease. That is a conflict of interest, given he shouldn’t be determining his own property taxes.
In addition, Tuteur made a mistake that resulted in too low of a property tax bill. His employees in 2016 discovered and corrected the error, the accusation said.
Tuteur hasn’t paid back taxes for 2008 through 2015, as he should, and owes the county about $20,000. He should be removed from office, the grand jury concluded.
But the Tuteur legal filing claimed Tuteur didn’t perform his own assessment involving the cell tower income.
The grand jury had as evidence a 2008 spreadsheet for the property. An Assessor’s Office employee told grand jurors that Tuteur’s name on the front page indicated he created the spread sheet.
But Tuteur’s defense said the Assessor’s Office in 2008 used this spread sheet for Tuteur’s property as an example for its vendor. Tuteur never touched the spread sheet and is not an expert in calculations for the value of a cell tower.
Tuteur would have assumed his property tax work would be reviewed by the chief appraiser. He didn’t know why the assessed value on the cell tower property rose by $170,000 in 2016 and didn’t think to ask, the defense filing said.
In an attached declaration, Chief Appraiser Richard Anderson said he told Tuteur in 2016 of the assessment error and that he was overseeing any corrections. Extra property taxes for a $170,000 value rise would be about $1,800.
“He (Tuteur) told me, nearly verbatim, ‘Do what you have to do, because it is passed on to my tenant,’” Anderson said in his declaration.
Anderson consulted with other counties and state Board of Equalization as he researched how to calculate value for cell tower leases, the filing said. Since appearing before the grand jury on Feb. 21 of this year, he arrived at the final appraisal for the Tuteur property.
Anderson in his declaration said he discovered small overassessments at two other radio repeater sites on the Tuteur family’s property, in addition to the cell tower underassessment. The combined corrections resulted in a value increase of $135,707.
California law allows for four years of property roll corrections. When all of the underpayments and overpayments are considered, Tuteur owes a total of $1,453 in back taxes, not the $20,000 speculated by the grand jury, Tuteur’s court filing said.
“The investigation of the issues concerning (this accusation) was incomplete and yielded no credible evidence to support the outrageous allegation that Mr. Tuteur violated his obligation not to value and assess his own property,” the filing said.
The grand jury also looked at how Tuteur handles Williamson Act contracts that give tax breaks to farmers in return for 10-year guarantees to keep their land as agricultural. Tuteur owns grazing land under a contract.
Tuteur has failed to determine the actual value of grazing lands based on up-to-date grazing income, but has instead assessed them using a minimum-value formula adopted by the county in 1969 and never revised, the grand jury said. That’s a conflict of interest, given that if the minimum values rose, so would Tuteur’s own property taxes, it said.
In Tuteur’s defense, his attorney wrote that Tuteur still considers the minimum value to be valid and that rents for grazing land have been stable over several decades. Changes to the minimum-value formula are made by the county Board of Supervisors, not the assessor.
Another accusation noted Tuteur on Jan. 25, 2011 appeared before the Board of Supervisors and urged supervisors not to adopt changes to Williamson Act contracts. This was a conflict of interest, given the changes would have resulted in contract holders – including Tuteur—paying higher taxes.
In response, Tuteur’s attorney wrote that Tuteur told the Board of Supervisors at that meeting that he has a Williamson Act contract. Plus, given the 69,000 acres of county land with Williamson Act contracts, Tuteur’s financial interest was indistinguishable from that of the public generally under California conflict-of-interest law.
Finally, the grand jury accused Tuteur of not making certain Williamson Act property owners return required questionnaires with financial information used to help calculate property value. In 2016, about 80 percent of vineyard owners didn’t return Tuteur’s questionnaires or returned incomplete questionnaires and 40 percent of grazing land owners didn’t return questionnaires, the accusation stated.
Tuteur failed to force compliance or to tell the county Planning Department, Board of Supervisors or District Attorney of the situation, the accusation said.
The Tuteur defense said Tuteur informed other county divisions about non-responding owners. Non-response is a problem statewide. The assessor doesn’t have a statutory duty to enforce Williamson Act contracts.
July 25, 2018
Napa Valley Register
By Barry Eberling
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