West Tisbury Leaders Question Legal Bills

By IAN FEIN

Facing more than a quarter-million-dollar price tag for what has
become the costliest legal case in town history, some West Tisbury town
officials are now questioning the validity of the legal bills and the
town's obligation to pay them.

As the Nov. 16 special town meeting approaches - where voters
will be asked to approve more than $250,000 for legal bills, most of
which were incurred by town assessors in their state appellate tax board
case against town resident William W. Graham - many of the
questions remain unanswered.

Selectmen at their regular meeting this week challenged specific
bills, and will attempt to schedule a joint public meeting with the
assessors next week to discuss their grievances.

The town finance committee also had an active debate about the bills
last Friday, when committee member Peter Costas recommended that town
voters oppose payment.

"Whether or not we believe in what happened, the money has
added up. The bills are there," said finance committee chairman
Sharon Estrella. "This is something apparently everybody thought
was the right thing to do," she said.

"But our job is to challenge and question that
decision," Mr. Costas countered. "If we believe these bills
are improper, then we should send them back."

A thorough review of records regarding the state appellate tax board
case shows that town assessors may have repeatedly overstepped their
authority in defense of the property tax appeal.

The records show that:

* Assessors engaged their special counsel without prior town
approval, which may violate state law.

* The decision to end settlement negotiations with Mr. Graham
last spring was made independently by a single assessor, without a vote
of the elected board.

* The contract with a private appraiser hired as an expert
witness in the case was signed by assessors and not selectmen, who act
as the chief procurement officers of the town.

The largest legal bills related to the case come from attorney Ellen
Hutchinson, who has represented the West Tisbury assessors in this case
and others since at least 1999. Ms. Hutchinson has billed the town more
than $115,000 for her work on the Graham case, and estimated she will
need another $35,000 to carry it through to a tax board decision. The
town already has paid her more than $40,000 for work on the case through
May.

A state law circulating through town hall, however, indicates that
the assessors did not have the authority to engage Ms. Hutchinson as
special counsel without specific approval from the town.

Massachusetts General Law Chapter 41, Section 26A, addresses
assessors and their authority to employ counsel in Massachusetts
Appellate Tax Board proceedings. The law, which is written in
unambiguous language, states that assessors must use the appointed town
counsel unless the town has made an appropriation covering the
employment of another attorney.

It appears the town never made such an appropriation.

Reached at her Woburn office this week, Ms. Hutchinson said she was
aware of the law, but suggested that questions about municipal
procedures be referred to town counsel Ronald H. Rappaport.

Mr. Rappaport said he will discuss the issue with selectmen, and
expects that it will come up on town meeting floor.

Although Mr. Rappaport would not speak specifically about the state
law this week, statements he made to the selectmen at a board meeting in
July cautioned against the improper use of outside counsel.

"In the absence of a legal line item approved by town meeting
voters in the budget, [an elected] town board has no independent
authority to engage counsel," Mr. Rappaport said in July.

Mr. Rappaport suggested at that meeting that other town boards could
request special counsel for their own legal matters, but that any such
counsel should be appointed and listed in the town report as a municipal
employee. Ms. Hutchinson is not listed in the town report.

Mr. Rappaport recommended the town adopt a formal legal policy,
which selectmen are now in the process of doing.

"When you have a special town meeting with people asking how
the legal bills got to be so much, it's good to have had a process
from the beginning," he said in July.

Finance committee members last week lamented the lack of process for
and oversight of the mounting legal bills in the Graham case. Assessors
did not submit the bulk of their bills until late last month.

The committee and selectmen gave their tacit approval of the
assessors' decision to defend the case by approving reserve fund
transfers last winter and spring to cover some of the early legal bills.
But more than one member said last week that if they had known what the
total price tag would be, they might have recommended negotiating a
settlement instead.

"Have we in fact done the right thing in going forward with
this? Could we have settled? Should we have settled?" finance
committee member Al DeVito asked last week. "I think that's
the real issue. Because I'm not convinced that not settling was
the right thing to do."

Mr. Graham, who owns 235 acres at Mohu off Lambert's Cove
Road, is challenging his assessments from fiscal years 2003 and 2004,
when he paid the town more than a half-million dollars in property
taxes. Attorneys for Mr. Graham have argued that the system assessors
used to determine land values and property taxes is fundamentally
flawed.

Mr. Graham approached the assessors in fall 2004 and again in spring
2005 with an offer to negotiate a settlement whereby he would abandon
his pursuit of back taxes if the town agreed to "fix the system of
assessment going forward." A mediation session was held in April
with Mr. Graham, Mr. Rappaport and West Tisbury elected assessors
Michael Colaneri and Stanton Richards in attendance. A second session
had been scheduled, but further negotiations were called off when the
assessors office sent a take-it-or-leave-it offer to Mr. Graham.

Mr. Richards testified during the tax board hearing that the board
of assessors never voted on the offer, nor did it meet to discuss the
mediation session.

West Tisbury principal assessor Jo-Ann Resendes confirmed this week
that Mr. Colaneri, acting as chairman of the board, decided to cease
negotiations and send Mr. Graham the letter. Itemized bills from Ms.
Hutchinson show that she authored the take-it-or-leave-it offer.

Ms. Resendes said this week that she did not know whether Mr.
Colaneri had the authority to make such a decision without a majority
vote of the board.

Another large bill related to the tax case came from private
appraiser Kenneth J. Croft 3rd, who town assessors hired as an expert
witness for the state tax board hearing.

Selectmen have singled out Mr. Croft's $70,000 bill for
criticism. Selectman Glenn Hearn said this week that he believes the
bill is excessive, considering that a substantial part of the bill
covers time Mr. Croft spent fixing omissions to his report at the
request of the appellate tax board chairman who is presiding over the
case.

A further review of the contract with Mr. Croft raises other
questions about its validity. Ms. Resendes did not have the contract in
September, but last month obtained another copy from Mr. Croft.

The copy of the contract is signed by town assessors Ray Houle and
Mr. Colaneri, though a space for the date of engagement next to the
signatures remains blank. Ms. Resendes said this week that the failure
to date the signatures was a simple oversight.

Other dates on the contract and in assessors' minutes from the
time the contract was reportedly signed do not coincide. Ms. Resendes
could not explain the discrepancies.

Also unresolved is the question of whether the assessors had the
authority to sign such a contract.

The services of an expert witness are exempt from the state
procurement law, but that law relates to bidding processes and does not
appear to address signatory authority.

It is understood that under most circumstances only town selectmen
or an official designee have the power to sign and bind the town to a
contract.

Ms. Resendes said the board of assessors acted under the assumption
that the state procurement law exemption granted them the power to sign
Mr. Croft's contract. Ms. Hutchinson, who helped the assessors
obtain the services of Mr. Croft, again said that questions about
municipal procedures and authority should be referred to town counsel.

Mr. Rappaport is expected to address the issue with selectmen,
either at their meeting next week or on town meeting floor.