Selectmen Will Call Special Election
By IAN FEIN
At a meeting marked by confusion and procedural missteps, West Tisbury selectmen this week heeded the advice of their town counsel Ronald H. Rappaport and agreed to call a special town election in May to fill the vacant seat on the board of assessors.
But they turned a deaf ear on further advice from Mr. Rappaport and decided to appoint Cynthia Mitchell, a former selectman and town treasurer, to replace Raymond Houle on the board for the next two months.
The appointment comes against a backdrop of political chaos in West Tisbury, where assessors are engaged in the costliest legal case in town history and public confidence in town government is at a low ebb. The joint meeting between the selectmen and town assessors this week drew an overflow crowd of town residents, and one selectman later described the overall situation as "a complete mess."
Mr. Rappaport told selectmen on Wednesday that they could have placed the assessor position on the upcoming annual town election ballot if they had acted when they were first notified of the vacancy last month. The remarks directly contradicted earlier statements from town executive secretary Jennifer Rand.
"In fact, that understanding - which I will simply characterize as a good faith misunderstanding between Jen and the secretary of state's office - is not the law of the commonwealth," Mr. Rappaport said on Wednesday.
Mr. Rappaport said the selectmen were never mandated to place the assessor position on the annual ballot. But he noted that because they did put on the ballot a finance committee seat that was vacated the same week, their actions were inconsistent and therefore open to criticism and potential lawsuits.
Mr. Rappaport told selectmen they had the legal authority to go ahead as planned with their 13-month appointment for the assessor position, and leave the seat off any ballot until the 2007 annual election. But the longtime town counsel balanced his legal opinion with a bit of practical advice.
"It is my practical recommendation that you call a special election for the assessors' seat, and that you call it as soon as possible and keep it open without appointing anyone," Mr. Rappaport said. "Give the choice to the voters because the voters would have had that choice had it gone on the ballot."
After some discussion, selectmen voted unanimously to schedule a special election for a Thursday in early May, which gives residents interested in running for the two-year assessor seat roughly two weeks to take out and submit nomination papers.
But after hearing a plea from board of assessors chairman Michael Colaneri, selectmen were persuaded that the seat should be filled for the next two months.
"In light of the fact that the board is dealing with so many pressing issues, it certainly would be nice to have a full board," said Mr. Colaneri, who is up for reelection in the annual election next month. "I think it would be in the best interest of the community to have more representation than less."
Mr. Colaneri and fellow assessor Stanton Richards recommended to the selectmen that they appoint Mrs. Mitchell to the position, and in a joint roll call vote, the two boards agreed unanimously to do so.
Five candidates had submitted their names for the appointment and four were interviewed by the assessors on Tuesday in an unusual meeting where Mr. Colaneri refused to allow selectman Glenn Hearn to speak. Mr. Hearn is running against Mr. Colaneri for assessor in the April annual town election.
On Wednesday, after Mrs. Mitchell was appointed, selectman and board chairman Jeffrey (Skipper) Manter revealed that he did not know who the other candidates for the position were. When asked, Mr. Colaneri also had to pause for a moment to recall them.
The other candidates were John Alley, Joan Ames, Cynthia Riggs and Ann Nelson.
During her interview on Tuesday, Mrs. Mitchell cited her long experience in the West Tisbury town hall as a prime qualification for the assessor position. She also said that her communication skills would serve the assessors well at a time when questions and criticisms of the department have surfaced in the wake of a large property tax appeal by town resident William W. Graham.
"Whether fairly or not, the board of assessors is in a position - because of the Graham case - where it needs to answer questions and concerns that have been raised by the public," Mrs. Mitchell said. "Even though the [Massachusetts] Appellate Tax Board is going to rule a decision, some of these questions can be accepted as genuine. I think it would behoove the board to be transparent and try to address these concerns."
Ms. Ames and Ms. Riggs in their interviews also suggested the need for more openness and transparency in the assessors' office.
The joint meeting on Wednesday may have involved violations of both the Massachusetts Open Meeting Law and a separate state law addressing the oath of office for an assessor.
The assessors met Wednesday afternoon on the second floor of the town hall, before the selectmen's meeting. When a reporter for the Gazette arrived at that meeting, he was told that the meeting had been adjourned.
But later during the selectmen's meeting downstairs, the assessors were called on to participate in a joint roll call vote, and Mr. Colaneri changed his earlier statement, saying that the assessors had simply continued and not adjourned their meeting.
For their part, the selectmen adjourned their regular meeting and then decided to join the assessors in an executive session to discuss pending litigation. Mrs. Mitchell, who had been appointed an hour earlier, attended the closed-door meeting as a town assessor.
Acting as assistant town clerk, Ms. Rand swore Mrs. Mitchell into office before the executive session. But under state law, assessors are required to take a special oath of impartiality, and Ms. Rand said yesterday that she did not administer that oath to Mrs. Mitchell.
The Wednesday meeting also included an exchange between Ms. Rand and selectmen over a case that surfaced briefly in Dukes County Superior Court this week in connection with the Graham tax dispute.
The complaint, which is distinct from the pending tax case, grew out of a public records request first filed by Mr. Graham with principal assessor Joann Resendes in November 2003.
After almost a year of back-and-forth correspondence, which included the intervention of the state supervisor of public records, the two sides disagreed over whether certain documents - namely, the manual for the Vision Appraisal Technology Inc. software used by assessors in determining property values throughout town - should be made public.
The Vision Appraisal system came under intense scrutiny during the Graham hearing at the appellate tax board last summer.
Ms. Resendes argued that the manual is part of the Vision software, and that computer programs are not public records. Vision Appraisal - the third-party appraisal company used by assessors in West Tisbury and other towns on the Island and throughout New England - has refused to release details about the software program, claiming that its trade secrets would be unfairly opened to competitors.
Mr. Graham in August 2004 filed a complaint in Dukes County Superior Court to force the release of the documents. Ms. Resendes is named as the defendant.
Neither the town nor Ms. Resendes filed an answer to the complaint, and the court issued a default order in the case last fall. In January Mr. Graham filed a motion for default judgment, seeking release of the disputed documents and some $1,800 in attorney's fees. A hearing on the motion was scheduled this week in Edgartown.
The town was represented by Edgartown attorney Robert McCarron, who appeared in court a half an hour late, just as the Hon. Richard F. Connon prepared to enter a default judgment in favor of Mr. Graham. After Mr. McCarron appeared, Judge Connon withheld his judgment and gave the town 10 days to file an answer to the complaint.
Representing himself in court on Tuesday, Mr. Graham expressed frustration that the town waited more than a year and a half to appear in the case. "All this time has passed, and now - at beyond the very last minute - an attorney comes in and asks for further delays," Mr. Graham told Judge Connon.
Mr. Graham on Tuesday and again in a telephone interview yesterday maintained that the superior court case is independent of the pending tax board matter. He said he believes that he - and other landowners - are entitled to see the software and accompanying manual that determine their property taxes.
"Taxpayers need to know how they are assessed, and there's no way to find out right now," Mr. Graham said. "Taxpayers ought to be entitled to know what valuation information is built into the software that is used to assess their properties.
"It's called democracy," he said.