DOR supports view that West Tisbury can pay old bills

By Dan Cabot - January 12, 2006

At the regular meeting of the West Tisbury selectmen last week, chairman Jeffrey "Skipper" Manter read a letter from the Massachusetts Department of Revenue (DOR), which concluded that town voters may choose to pay expenses incurred illegally, even though they have no legal obligation to do so.

The DOR's ruling is important because five warrant articles at a special town meeting on Jan.17 will ask voters to pay past bills from a lawyer and two appraisers in the ongoing dispute between the town and William Graham of Lamberts Cove Road, who is suing the town before the Massachusetts Appellate Tax Board (ATB). The services were performed between March and November of last year.

The selectmen will ask the town meeting to appropriate $134,000 to pay for services already performed, which were contracted for without prior approval of the voters. (A sixth warrant article requests an additional $35,000 to see the case before the ATB through to its conclusion, and a seventh asks for $15,000 for more routine legal matters.)

Resident Jonathan Revere and others have argued that the selectmen are asking voters to violate Massachusetts law in paying the past bills, because the expenses were incurred by the town assessors, who have no authority to contract for town services, and because no specific prior appropriation had been made by voters at a town meeting.

At a special town meeting in November, when voters rejected similar requests totaling $255,000, attorney Richard Manley of the Boston firm Ropes & Gray advised voters that towns often do not correctly anticipate expenses, and voters often retroactively authorize bills. "It happens all the time," Mr. Manley said. Town counsel Ronald Rappaport had expressed the same opinion in meetings with the selectmen.

However, Mr. Revere, concerned especially, he said, that the assessors had acted illegally and without consulting the financial officers of the town or the selectmen, asked that the town seek guidance from the DOR. Mr. Revere has announced his intention to run for assessor in the upcoming April town elections.

Kathleen Colleary, chief of the Property Tax Bureau of the DOR, wrote to West Tisbury executive secretary Jennifer Rand. "A municipality. . . may determine that the goods or services were provided in good faith and the vendor should be compensated accordingly. If so, it may make a subsequent appropriation to ratify any contractual obligation and pay the bills."

However, Ms. Colleary also confirmed the fact, expressed in opinions from Mr. Manley and Mr. Rappaport, "Anyone performing services without an adequate appropriation in place at the time must be aware that the town is not liable for payment if a later appropriation is not made."

In a telephone message this week, Mr. Revere said that he does not believe Ms. Colleary's letter satisfactorily deals with those parts of state law that apply specifically to the conduct of the assessors. "I stand by my earlier position," he told The Times. "If we vote to appropriate money, as a town, we will be breaking the law."

However, Ms. Colleary's letter says that she understands, "The assessors retained legal counsel and appraisal experts to assist them in the appeal," and states that the voters may "ratify any contractual obligation and pay the bills."

Mr. Revere's view notwithstanding, Ms. Colleary's letter apparently supports the opinion of the town's attorneys that the voters may decide to pay the bills. Whether they do so or not is up to them.

In response to a question at an earlier selectmen's meeting, Mr. Manter stated his position: "These vendors were hired to perform services for the town. We received those services.... Even though the process wasn't proper, it was done as past practice had been done for many, many years. Now we've changed that past practice, so it won't happen again, but we did receive services which the town engaged for in good faith."

On the other side, some argue that because the assessors might have settled with Mr. Graham and avoided the legal expenses, the town should refuse to pay for them. Others argue that the town had little choice but to defend its assessments, but say that town officials should not expect support for illegal practices.