West Tisbury voters will be asked to pay trimmed bills

By Dan Cabot - December 22, 2005

For a second time, West Tisbury voters will be asked to pay for expenses incurred in defending the town against a suit before the Massachusetts Appellate Tax Board (ATB) brought by William Graham, who contends that his property assessments in 2003 and 2004 were unfair. The bills - from the town's attorney, an independent appraiser, and the town's revaluation consultant - were rejected by the voters in two warrant articles at a special town meeting in November. In January, voters will be presented several warrant articles so that they may make a decision about each. The selectmen have met with all three of the vendors seeking to reduce these charges, but regardless of concessions won, the final decision is up to the voters.

At the same meeting, voters will consider a citizen petition to require that five percent of the voters be present to constitute a quorum.

The legal expenses for the Graham case were incurred without prior appropriation by the voters. Therefore, under Massachusetts law the assessors and the selectmen contracted for the services improperly. However mistakenly, town officials were following "past practices," according to chairman of selectmen Jeffrey "Skipper" Manter. No one anticipated the length of the trial, the longest-running in the history of the ATB. Lawyer and municipal government expert Rick Manley told the town at the November town meeting that towns often are unable to accurately judge expenses, and voters often retroactively fix the problem by appropriating funds. "It happens all the time," he said.

The town is divided as to whether the assessors should have defended the town against Mr. Graham's claim. Some of those who feel that the assessors acted in error now feel that the bills incurred in the case should not be paid at all, on the grounds that the vendors should have known they are at risk if they provide services without an appropriation to pay them. Technically, the bills are illegal and may be avoided.

However, according to selectman Glenn Hearn, the vendors could still sue the town, which at least one has threatened to do, creating the need for still more legal expenses. All three selectmen feel the town has a moral obligation to pay these debts.

Vision Appraisals and Coleman & Sons

In a meeting with selectmen on Dec. 1, Vision Appraisal Technologies, for 15 years a consultant in West Tisbury's triennial revaluation of taxable property, offered to settle for $12,000 their bill of $31,000 for appearances before the ATB. Kevin Comer, president of Vision, told the West Tisbury selectmen that in view of his long relationship with the town, he would accept the smaller sum, which he said would cover his expenses only. Selectman John Early called the offer "more than fair."

On November 30, the selectmen met with Coleman & Sons Appraisal Group, the independent appraisal firm that valued the Graham properties as a part of the town's defense. They began negotiating Coleman's bill for $72,475, but reached no agreement. Subsequent to the meeting, the town made an offer to settle for $37,000, if the voters agree. Martin Coleman, president of the firm, in a letter dated Dec. 12, offered to reduce his bill to $65,000. Mr. Coleman noted that he is prepared to sue the town if he is not paid, adding, "If we have to undertake litigation, in addition to the amount owed, I will also seek to be reimbursed for all expenses, interest, attorney's fees, as well as seek triple damages for breach of contract."

Spectators challenge Ms. Hutchinson

On Tuesday this week, the selectmen met with Ellen Hutchinson, the town's attorney before the ATB. Ms. Hutchinson said that she has already reduced her bill by 25 to 30 percent, to its present outstanding balance of approximately $84,000. She explained, "In working for cities and towns - towns have limited budgets - you can't bill every hour that you spend working on a case." She went on to say that there were many days in which she worked more than the eight hours she billed.

The selectmen asked Ms. Hutchinson if she would further reduce her outstanding balance to $75,000 and provide a fixed, "not to exceed" figure for writing the final brief, a written closing argument which will take many more hours to prepare. Ms. Hutchinson, who charges $175 per hour for her time, has not yet written the final brief expected from the town in the case. On Tuesday, Ms. Hutchinson said only that she would study both requests.

Spectators at the meeting challenged Ms. Hutchinson on the legality of her employment by the assessors. Joan Ames wanted to know whether Ms. Hutchinson knew that the town had voted no appropriation for the Graham case, and that her employment was illegal. Ms. Hutchinson chose not to comment on the legality issue, but responded, "I certainly can tell you that I didn't consider [the presence or absence of an appropriation] when I accepted the job back in 1999, and I have been working with the assessors ever since then."

As to whether Ms. Hutchinson would write the final brief if she is not going to be paid for doing so, J.C. Murphy, a lawyer and West Tisbury resident, expressed the opinion that she would have to write the brief whether she is paid or not. "I can't see how any judge is going to allow you to pull out of the case, especially where you've made an illegal contract [to represent the town]."

Ms. Hutchinson replied that she does not know whether the ATB would allow her to withdraw or not. She went on to say, "I have no desire to withdraw. I have no plans to withdraw. The question comes down to, 'Can you be forced to write a brief when you're not going to be compensated?'"

Mr. Murphy also commented that in his opinion, Ms. Hutchinson could be said to have taken the Graham case on speculation and is entitled to no compensation at all if Mr. Graham wins before the ATB. If the town wins, Ms. Hutchinson would be entitled to 30 percent of what she saved the town, he said. Mr. Graham's estimated overpayment is $319,000; 30 percent would be $96,000.

Town meeting quorum petition

At the Jan. 17 town meeting, voters will also be asked to rule on a citizen petition asking that West Tisbury establish a quorum requirement of five percent of the registered voters, a figure in use in other Island towns. Town clerk Prudence Whiting certified the petition, which contained 159 names. One hundred registered voters are required to place an article on the warrant for a special town meeting.

West Tisbury has slightly over 2000 registered voters. The town bylaws now leave the presence or absence of a quorum to the discretion of the moderator. Richard Knabel, who presented the petition to town clerk Prudence Whiting on Friday, told The Times that special town meetings are sometimes held with as few as 30 voters present, which he and his group feel is a bad policy, and he cited the October meeting to vote a bylaw to administer the Community Preservation Act. Five percent (or about 100 voters) is not an unreasonable requirement, he said.

Town officials have often argued that the present bylaw allows the town to do routine but necessary business when the warrant is not sufficiently controversial to draw out as many as 100 voters.

The new requirement, if passed, would not apply to the Jan. 17 meeting.