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Paying your taxes? Bring your checkbook
(by Karen F. Mrnarevic - July 16, 2008)
On Wednesday, June 25, a lawsuit filed by resident Donald Picano against the Borough of Emerson and Borough Administrator Joe Scarpa was settled in federal District Court. The judge, Peter Sheridan, ruled in favor of the borough.
In March of 2007, Picano brought suit, claiming that it was unlawful of the borough to require residents to pay their property taxes by check or money order, disallowing cash payment, a rule that was implemented by passage of a resolution. Picano also alleged in his lawsuit that he had been unlawfully detained, threatened and intimidated by Scarpa; the court judged the allegations to be false. Scarpa was pleased with judge’s ruling, saying, “From the very onset it’s been a frivolous lawsuit.”
It all started last spring when news broke about the
Bergenfield deputy tax collector who had allegedly been pocketing cash tax payments. The man, Marlon Mikesell, was accused of stealing a total of $196,000 of taxpayers’ money. Upon hearing about the theft in
Bergenfield , Scarpa suggested to Emerson’s mayor and council that the borough change its policy and cease to accept cash tax payments. The City of
Rochelle Park , where Scarpa is the mayor, has had a similar policy in place for more than 10 years.
Of the 10 towns in the
Pascack
Valley ,
Woodcliff
Lake is the only one other than Emerson that currently has a no cash policy in place. However, when asked about it, Montvale Tax Collector Julia Paraino said, “I would love to see that implemented.”
Emerson’s council decided that Scarpa’s suggestion to only accept tax payments by check was prudent and adopted the new policy. Letters were sent on March 20, 2007 to 15 residents who had, in the past, paid their taxes in cash; one of those residents was Picano.
The following day, after Picano received the letter, he contacted a lawyer, George Cotz of the Mahwah-based firm Cotz and Cotz. Cotz then wrote a letter to the borough claiming that the no cash rule violates federal law and Picano’s civil rights, and threatened to sue if the borough didn’t change the policy.
Asked in a phone interview why he had taken Picano’s case, Cotz said, “My wife [and law partner] and I are civil rights attorneys, and we believe in protecting civil rights of Americans. I think that the right to pay your bills with money is one of the liberties that Americans enjoy… It’s about the liberty to conduct your life as you see fit as long as you aren’t hurting anybody.”
Picano came to tax office on May 8 and attempted to pay his taxes in cash. Borough Tax Collector Barbara Looney, who had had some unpleasant interactions with Picano in the past, asked Scarpa to deal with him, and Scarpa brought Picano to a conference room. He told Picano he would have to come back and pay his taxes with a check, and Picano left the borough hall. But rather than returning with a check, on May 17, Picano served the borough with a tort claims notice.
The notice alleges that on May 8, “[Picano] was accosted by Mr. Scarpa… was escorted to another room where his liberty was restrained, and he felt unable to leave, and he was warned and cautioned not to attempt to pay his taxes in cash ever again. This encounter was intimidating and harassing, and was intended to be intimidating and harassing.” The amount in damages sought by Picano was “no less than $1,000,000.”
The claims of intimidation by Scarpa were never substantiated, even through examination of an audio recording that Picano made of the confrontation. Additionally, Judge Sheridan decided that there had been no proof of violation of federal law governing legal tender (31 U.S.C., section 5103), asserting that there is no constitutionally protected right to pay taxes with cash. Cotz said he was surprised by the judge’s decision. “I respect Judge Sheridan, but I do believe he was in error,” he said.
Picano currently owes the borough $9,237.39 in back-taxes, not including $1,172.66 in interest, incurred in the months since his dispute with the borough began. Cotz said that he and his client are considering an appeal of the ruling. In the meantime, regarding the tax bill, Cotz said, “We are just waiting to get the figure from the borough and he’ll pay it. It was never a question of him paying it, it was how.”
Karen F. Mrnarevic's e-mail address is Mrnarevic@northjersey.com.
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