Erroneous charges - Refund Policy
Do your municipalities have a policy regarding refunding erroneous charges?
I've seen this come up a few times over the years. Right now, one of my
clients has a request to refund sewer charges since 2016 because the
homeowner just realized they are on septic.
That length of time seems excessive to me.
ALSO - the homeowner is now the municipal clerk. Does that cause any other
concern?
Thanks for any insight.
Kim Spady
I don't have a policy example to give you, but I'll at least note that
there is a cause of action for Money Had and Received which applies to
public entities. See Sholer v. State ex rel. Dept. of Public Safety, 1995
OK 150, 945 P.2d 469. The GTCA was held not to apply to those claims in
Sholer, and I'm not sure the outcome would be any different even after
the amendment to the definition of a "tort" in the GTCA that were adopted
after Bosh. The Court views the claim as being akin to an implied,
unwritten contract and applies a 3 year statute of limitations to the
claims from 12 O.S. 95. The S/L applies to each payment that was made.
So in your situation, if the person-turned-clerk were to sue they would be
limited to overpayments going back 3 years (unless there was a written
contract, then they could argue the 5 year S/L from Section 95). That 3
year limitations period would be useful in crafting a policy.
Anecdotal, I have heard about this issue from several cities and towns and
many of them resolve overpayments by putting a credit on the utility bill
in lieu of issuing a payment. Depending on how much money is at issue, that
may satisfy the utility customer. But in your situation, since the person
is on septic, they wouldn't have a sewer bill anymore so you'd have to have
some other utility bill to issue a credit or would have to consider an
outright refund.
While the person is the Clerk, that doesn't affect their entitlement ot
recover. It would create a potential conflict in terms of processing the
request and it would probably be best for them to be hands off on the issue.
Matt
On Mon, Dec 6, 2021 at 4:50 PM Kim@spadylaw.com wrote:
Do your municipalities have a policy regarding refunding erroneous
charges?
I’ve seen this come up a few times over the years. Right now, one of my
clients has a request to refund sewer charges since 2016 because the
homeowner just realized they are on septic.
That length of time seems excessive to me.
ALSO – the homeowner is now the municipal clerk. Does that cause any
other concern?
Thanks for any insight.
Kim Spady
Oama mailing list -- oama@lists.imla.org
To unsubscribe send an email to oama-leave@lists.imla.org
My first thought is that we have an application for utilities (water, sewer, trash) and the customer has the burden of marking which services they apply for and showing that they have septic if they are refusing the sewer. Do you have anything in the utility account that shows they signed for the sewer service, or that they failed to show they had septic? Seems that mistake is on the property owner, not the city? Unless it is in a neighborhood where the City should have known there was no sewer available, I don’t know why they should get any more than the 3 years under the case Matt listed below.
From: Matt Love [mailto:matt.love@gmail.com]
Sent: Tuesday, December 07, 2021 9:51 AM
To: Kimberlee Spady Kim@spadylaw.com
Cc: OAMA Luistserv oama@lists.imla.org
Subject: [Oama] Re: Erroneous charges - Refund Policy
I don't have a policy example to give you, but I'll at least note that there is a cause of action for Money Had and Received which applies to public entities. See Sholer v. State ex rel. Dept. of Public Safety, 1995 OK 150, 945 P.2d 469. The GTCA was held not to apply to those claims in Sholer, and I'm not sure the outcome would be any different even after the amendment to the definition of a "tort" in the GTCA that were adopted after Bosh. The Court views the claim as being akin to an implied, unwritten contract and applies a 3 year statute of limitations to the claims from 12 O.S. 95. The S/L applies to each payment that was made.
So in your situation, if the person-turned-clerk were to sue they would be limited to overpayments going back 3 years (unless there was a written contract, then they could argue the 5 year S/L from Section 95). That 3 year limitations period would be useful in crafting a policy.
Anecdotal, I have heard about this issue from several cities and towns and many of them resolve overpayments by putting a credit on the utility bill in lieu of issuing a payment. Depending on how much money is at issue, that may satisfy the utility customer. But in your situation, since the person is on septic, they wouldn't have a sewer bill anymore so you'd have to have some other utility bill to issue a credit or would have to consider an outright refund.
While the person is the Clerk, that doesn't affect their entitlement ot recover. It would create a potential conflict in terms of processing the request and it would probably be best for them to be hands off on the issue.
Matt
On Mon, Dec 6, 2021 at 4:50 PM <Kim@spadylaw.commailto:Kim@spadylaw.com> wrote:
Do your municipalities have a policy regarding refunding erroneous charges?
I’ve seen this come up a few times over the years. Right now, one of my clients has a request to refund sewer charges since 2016 because the homeowner just realized they are on septic.
That length of time seems excessive to me.
ALSO – the homeowner is now the municipal clerk. Does that cause any other concern?
Thanks for any insight.
Kim Spady
Oama mailing list -- oama@lists.imla.orgmailto:oama@lists.imla.org
To unsubscribe send an email to oama-leave@lists.imla.orgmailto:oama-leave@lists.imla.org