West Tisbury confronts legal expenses, choices

By Dan Cabot - December 1, 2005

As West Tisbury officials planned another special town meeting for Jan. 10 to try to persuade voters to pay attorney Ellen Hutchinson, she continued to represent the town and was considering her options. Meanwhile, the selectmen held a preliminary meeting with Coleman & Sons Appraisal Group to discuss bills submitted for their services.

At a special town meeting on Nov. 16, voters rejected two articles totaling $255,000 to fund the town's defense of a suit brought by William Graham before the Massachusetts Appellate Tax Board (ATB). The longest running such case in the history of the Commonwealth (36 days) is proving to be costly to the town, with mounting fees for legal counsel, independent appraisals, and consultation.

The high cost of the trial had not been anticipated and had not been presented to the town in advance of the trial for approval of a line item appropriation to fund it, as required by law. However, voting the money retroactively for unexpected expenses is a common solution to such an irregularity, according to municipal finance expert Rick Manley, who was invited to the meeting by town counsel Ronald Rappaport.

Executive secretary Jennifer Rand told The Times that the selectmen at their meeting last night would schedule another special town meeting for Jan. 10, by which time they hope to have resolved questions raised by selectman Glenn Hearn about bills from the independent appraiser, Coleman & Sons and from Vision Appraisal Technologies, the town's consultant in the 2002 revaluation that is at the heart of Mr. Graham's case. In November, the West Tisbury finance committee had not recommended passage of the Graham articles because of Mr. Hearn's questions.

Ms. Rand said that on Jan. 10, the various legal expenses will be presented in separate warrant articles so that voters can, if they choose, elect to pay some but not others.

The appraiser's bills

On Tuesday this week, the selectmen met with Kenneth Croft and Martin Coleman, president of Coleman & Sons. While no agreement was reached, the meeting ended with a promise of further discussions. No member of the finance committee attended the meeting.

The original contract was for $12,000 to appraise Mr. Graham's properties, with the understanding that Mr. Croft would be available to give expert testimony at the trial at the rate of $250 per hour. Preliminary estimates were that the trial would last about a week and Mr. Croft would be on the stand for one or one and a half days. After 14 days in court, Coleman & Sons' charges ran to $72,000.

Selectman Glenn Hearn had several questions. He said that some of the work demanded by the presiding chairman of the ATB should have been included under the original appraisal contract. Mr. Coleman explained that some of the extra work was to include a wetlands survey not provided to Mr. Croft by the assessors and introduced at the trial by Mr. Graham's lawyer. Other work was to comply with requests from the ATB which could not have been anticipated in the original appraisal.

Mr. Hearn also complained that the number of hours billed, which on some days were longer than court was in session and more than the hours billed by Ms. Hutchinson on the same day, were excessive and included travel time and lunch recesses. Chairman of selectmen Jeffrey "Skipper" Manter noted that for a one-and-a-half-hour lunch break, the town was billed $375, which he said was too much.

Mr. Coleman defended his total-time billing as standard practice, and noted that lunch hours were often spent in discussions. The long hours, as much as 16 hours in one day, were spent in conference with Ms. Hutchinson, research conducted back in the office at night, and morning preparation for trial.

Mr. Coleman said that every hour on the bill was accounted for by Mr. Croft's time and took Mr. Croft away from other work. "We have a reputation to maintain," he said. "We are not gougers. We do not overcharge."

Mr. Coleman commented on the extraordinary length of the trial, which he said was longer than any residential case in his 40 years of experience with the ATB. The hours were comparable, he said, to cases his company had been involved in with 40-story office buildings. "You caught a bad break in the way the court conducted this trial," he suggested. "The time is what it is." Discussions about the Coleman bills are to be continued.

Another meeting with Vision Appraisal Technologies, which has already reduced its bill by $10,000, is scheduled for today at 11 am at the Howes House.

Response from Ellen Hutchinson

According to Mr. Manley and Mr. Rappaport, Ms. Hutchinson, like Vision Appraisal Technologies and Coleman & Sons, is in danger of not being paid for her services, because they were rendered in the absence of a legal appropriation by the voters. Although members of the finance committee have told The Times that they believe Ms. Hutchinson was contracted in good faith and should be paid, the decision is up to the voters.

In an e-mail last week, Ms. Hutchinson told The Times that she was discouraged and disheartened by the town meeting vote. "I had hoped that the voters would have recognized that I had put an extraordinary amount of time and effort into this case and deserved to be fairly compensated," she wrote.

Nevertheless, in the two days after the Nov. 16 town meeting, Ms. Hutchinson was on the Island accompanying the presiding commissioner of the ATB to view the Graham properties. She wrote that it was difficult for her to go on the view, having learned of the town's vote only minutes before it began. "But I did it because it was the right thing to do…" she said. "It was essential that the assessors be represented by legal counsel on the view."

If the town is to continue its defense in the Graham case, the next step is for the town's attorney to prepare a post-trial brief, essentially written closing arguments, which will probably be due in February or early March, 75 days after the last transcripts are received. Ms. Hutchinson explained, "It is our sole opportunity to present...in detail how the evidence in this case supports our legal arguments and our position that no fraud took place, that there are no flaws in the mass appraisal system, and that the Graham assessments accurately reflect fair market value."

For Ms. Hutchinson to write the brief will take many hours, and an estimate of that cost was included in the Nov. 16 warrant articles. That cost, however, might be far less than hiring a new attorney, who would need time to become familiar with the 36 days of testimony and 450 exhibits. If the town does not submit a brief at all, Ms. Hutchinson believes, it will be at a terrible disadvantage in the case.

Yet it is not certain that Ms. Hutchinson will write her post-trial brief. She told The Times, "I have poured my heart and sole into this case and would be terribly disappointed not to write the brief..., but I can't continue to work for the town and not be compensated."

She continued, "I am going to take the holiday and consider what my legal and ethical obligations are, and what I feel my moral obligations are in this matter. I'll make some decisions after that."

As of yesterday, Ms. Hutchinson had announced no decisions.