Finance Committee Assails Legal Bills
Board Reverses Position Before Meeting, Deciding to Recommend Against Payment to Lawyer in Tax Case
By IAN FEIN
West Tisbury town officials this week brought mounting assessors' legal bills under intense scrutiny during a flurry of last-minute meetings before the Nov. 16 special town meeting where voters will be asked to approve more than a quarter-million dollars in legal expenses.
On Tuesday, the town finance committee in an unusual move reversed its position on the spending request and recommended that voters not pay the legal bills - at least until all unanswered questions have been resolved.
"Because of everything we've heard and everything we've read, these bills have come into question - not only their validity, but also how they were arrived at," committee member Peter Costas said.
The finance committee discussed their recommendation while at the same time selectmen quizzed assessors about details in the bills at another meeting only a few miles away.
"This should send a clear message to the town fathers and people involved," said finance committee chairman Sharon Estrella. "Nothing is clear; we don't know what's out there. And our legal questions do not have answers."
Town counsel Ronald H. Rappaport, at a selectmen's meeting the following night, confirmed that assessors acted outside the law when they incurred most of the bills. The assessors did not have independent authority to engage their attorney or to hire a private appraiser as their expert witness for a costly and prolonged hearing before the Massachusetts Appellate Tax Board, Mr. Rappaport said.
The unpaid bills for the attorney and appraiser total more than $140,000.
Mr. Rappaport said he does not believe the town is obligated to pay those bills but that voters have the power to decide whether to authorize payment. While prior town meeting approval was required for the attorney and appraiser bills, voters may retroactively endorse payment by appropriating the money at next week's special town meeting, he said.
The legal bills stem from a state appellate tax board hearing between assessors and town resident William W. Graham, who owns 235 acres at Mohu off Lambert's Cove Road. Mr. Graham is challenging his assessments from fiscal years 2003 and 2004, when he paid more than a half-million dollars in town property taxes. Mr. Graham and his attorneys argue the West Tisbury system for land values and property tax assessments is fundamentally flawed.
Mr. Rappaport said he discussed the legal bill issues at length with attorneys from the Massachusetts Department of Revenue. He said even though selectmen in 1999 appointed attorney Ellen Hutchinson as special counsel to the assessors, state law still requires voter approval for her work to defend the town in the Graham case still before the state appellate tax board.
"The principle is a theme throughout," Mr. Rappaport told selectmen. "It is the voters who make these types of appropriations, and voters who decide whether they want these [cases] to be pursued."
Mr. Rappaport said that if voters decide not to pay the legal bills, litigation will likely follow. But he expressed confidence that the town would prevail in any potential suits brought by either the private appraiser or Ms. Hutchinson.
Mr. Rappaport acknowledged that not paying the bills in question may ironically lead to more legal bills. He said voters must decide whether it is worth incurring more bills to keep from paying the current ones.
Mr. Rappaport said that if all of the legal bills are turned down next week, the town might also face suit from Vision Appraisal Technology Inc., the third-party consultant hired by assessors to assist in townwide valuations. He said that of the three contractors, Vision Appraisal would have the strongest case because its unpaid $20,000 bill is tied to a contract previously authorized by town voters.
Mr. Rappaport last week also sent a letter to selectmen disclosing that he and his firm had previously represented Mr. Graham and other members of his family in other legal matters. Mr. Rappaport assured them he had no matters pending with Mr. Graham, and the selectmen voted unanimously to accept the disclosure and allow Mr. Rappaport to advise them on the current legal bill issues.
Mr. Graham attended both the selectmen session on Wednesday and the finance committee meeting on Tuesday.
As of yesterday afternoon, Ms. Hutchinson, state appellate tax board officials and Mr. Graham's attorney were set to travel to the Vineyard next week for another view of Island properties associated with the case. The second view session will close the months-long hearing, and set a deadline for filing final briefs. A decision from the state appellate tax board is not expected until next spring.
At their special joint meeting on Tuesday, selectmen asked assessors whether Vision Appraisal and the private appraiser, Kenneth J. Croft 3rd of Coleman & Sons Appraisal Group - had overcharged the town for their work during the hearing. Selectmen did not address the issues of legal authority with the assessors.
At the start of the meeting assessors chairman Michael Colaneri immediately wanted to go into executive session, but board of selectmen chairman Jeffrey (Skipper) Manter told Mr. Colaneri that any discussion of bills must be done in public.
Selectman Glenn Hearn and Mr. Manter asked the assessors whether Mr. Croft charged the town a $250 hourly rate to do work that should have been included in his original $12,000 appraisal report. A substantial part of his overall $70,000 bill covers time spent fixing a series of omissions in his report.
Mr. Colaneri also told selectmen Mr. Croft's private appraisal was required by the state appellate tax board. An appellate tax board representative yesterday said there is no such obligation for a party to present a private appraisal during the course of a hearing.
Selectmen pressed assessors about the Vision Appraisal bill as well. Mr. Hearn and Mr. Manter questioned whether the town should have to pay the company for the presence of its employees at the hearing, where the Vision Appraisal system came under intense scrutiny.
West Tisbury principal assessor Jo-Ann Resendes explained to selectmen that Vision Appraisal originally billed the town $29,000, but reduced its cost by $10,000. She said the company charged for 27 days of attendance during the Graham hearing at a contractual rate of $700 per day.
"The Vision company is on trial as much as the town is. Their reputation is at stake. If they were to lose, they could very well be out of business in the Commonwealth of Massachusetts," Mr. Manter said. "I appreciate the discount, but I'm sure it's more self-serving than on behalf of the people in West Tisbury."
According to the 2001 contract between the company and the town, Vision Appraisal would provide expert witnesses to represent the town at tax board hearings at a rate of $700 per day. But company representatives who attended the West Tisbury hearing did not do so as expert witnesses. In fact, the Vision Appraisal employees attended the start of the hearing because they were under subpoena and their presence was required by law.
Mr. Hearn also asked assessors to make a copy of transcripts from the state tax board hearing available in town hall. Ms. Resendes said she will talk to Ms. Hutchinson about the matter.
Mr. Manter ended the meeting with a warning that he will withhold his signature from the bills until all of his questions are answered, even if voters approve the requested appropriations.
"Hopefully the assessors heard us tonight, as well as the townspeople," Mr. Manter said. "We don't take these bills lightly. We will scrutinize these right to the last dime."