West Tisbury flubs a series of town affairs

By Dan Cabot - March 9, 2006

No harm was done this time, except to the town's image, but once again West Tisbury appeared to stumble and fumble through the business of municipal government. The selectmen, the assessors, the town clerk, the executive secretary, the town's attorneys, and even the Massachusetts Bureau of Elections, all bore a portion of the responsibility for the current round of confusions.

At the regular Wednesday meeting of the selectmen last week, an observer could be forgiven for quoting Casey Stengel's famous remark, as he contemplated the bizarre 1962 New York Mets: "Don't anybody here know how to play this game?"

When long-time assessor Raymond Houle resigned last month for reasons of health, the selectmen were under no legal obligation to put his unexpired term on the ballot for the April 13 town elections. Under the law, they could have simply advertised for and appointed someone to serve until the 2007 election. However, because the assessors have been at the center of the controversy surrounding the lawsuit filed against the town by William Graham before the Massachusetts Appellate Tax Board (ATB), the selectmen would have preferred to put the office before the voters as soon as possible. They wanted to, but they thought they couldn't. They thought they couldn't, but in fact they could have.

As town counsel Ronald Rappaport explained last Wednesday, the confusion came out of a telephone conversation between executive secretary Jennifer Rand and the Massachusetts Bureau of Elections (MBE) on Feb. 6. Ms. Rand learned, correctly, that it takes 64 days to complete the process required to place an opening on a ballot for any town election. Mr. Houle 's letter of resignation said that he was resigning as of Feb. 10, 63 days before April 13. What she did not learn is that what matters is not the effective date of Mr. Houle's resignation but the date on which the town clerk received his letter, which was Feb. 6. The MBE person who spoke with Ms. Rand did not know that fact, nor did anyone in West Tisbury town government, and if Mr. Rappaport knew about the problem on Feb. 8, he didn't volunteer the information either.

So it turns out that Mr. Houle's position could have been on the ballot after all, though it would have taken some fancy footwork at the Feb. 8 selectmen's meeting to do it, including calling town clerk Prudence Whiting back to work at 4:30 pm to formally certify the resignation.

A second mistake revealed
At last week's selectmen's meeting, Mr. Rappaport outlined the town's options, which included appointing an assessor until 2007, calling a special election as soon as possible and appointing no one in the meantime, or appointing someone as well as calling a special election. He recommended appointing no one and calling a special election. His reason was that it turns out that Ms. Whiting and the selectmen had made a second error on Feb. 8.

Although everyone in town knew that James Powell was resigning from the finance committee (FinCom), his letter was not delivered until Feb. 8, and Ms. Whiting, whose hours end at mid-day, gave the letter to the selectmen but neglected to officially certify the resignation before their 4:30 meeting, in time to get that position on the ballot. No one at the time, including Ms. Whiting, was aware that she had made an error. So, technically, Mr. Powell's position is now on the April 13 ballot illegally. However, Mr. Rappaport also said, there is no legal way to take his name off the ballot once on, and so the election for the remaining two years of his term will proceed as if it had been done legally. Consequently, Mr. Rappaport argued that in the case of the assessor's position, the voters, not the selectmen, should also be the ones to decide on Mr. Houle's successor, just as they will for Mr. Powell's, and it should be as soon as possible after April 13.

Following Mr. Rappaport's advice, the selectmen scheduled a special election for May 11. However, at the request of Michael Colaneri, chairman of the board of assessors, they also appointed an interim assessor to serve until the special election. Mr. Colaneri pointed out that the assessors had advertised for the appointment and interviewed four candidates. He also said that the assessors might have important decisions to make in the next two months, and he wanted to have a full board.

The two boards jointly appointed former selectman and former town treasurer Cynthia Mitchell as interim assessor. The vote was 5-0. Ms. Mitchell served 17 years as elected town treasurer and 12 years as a selectman, ending in 2002. In her interview with the assessors, Ms. Mitchell explained that those town positions often entailed working closely with the assessors. She and several of the other persons who interviewed for the post cited a need for better communications and more transparent operations in the assessors' office, and Ms. Mitchell listed communication skills among the assets she feels she would bring to the job.

Few in town would quarrel with Ms. Mitchell's qualifications for the two-month interim appointment. She has told The Times that she is quite sure that she will be a candidate in the May special election to complete the rest of Mr. Houle's term.

Another bizarre revelation
At the same selectmen's meeting, Ms. Rand revealed an even stranger turn of events. The town was sued in August 2004 and, until faced with a default judgment last week, had never assigned a lawyer to represent it in the matter. In hindsight, that appears to have been an error.

The suit, brought by William Graham in Dukes County Superior Court, alleges a violation of the Public Records Law. Though this is a separate matter from the case now being considered by the ATB, it is related to it.

In 2003, Mr. Graham's lawyer routinely requested public documents related to Mr. Graham's 2002 and 2003 assessments as a part of his ATB case. This week Jo-Ann Resendes, West Tisbury principal assessor, told The Times that she thought she had provided everything requested, with the exception of computer software and manuals belonging to Vision Appraisal Technologies, the town consultant in the 2002 revaluation of town properties. The Massachusetts Secretary of State has ruled that proprietary software is not subject to discovery proceedings.

In August of 2004, Mr. Graham's attorney, Richard Wulsin, filed suit in Superior court demanding four items which he said had not been provided: the software and manuals, the daily-updated computer file (called the "dump file") of all the assessors' records, and a complete copy of the dump file, as Mr. Wulsin alleged that the file provided to them by Ms. Resendes had been edited.

The town did not at that time assign an attorney to handle the Superior Court case. Ellen Hutchinson, the town's lawyer in the ATB case, told The Times this week that she contacted Mr. Wulsin's office and spoke with attorney Diane Noell. Ms. Hutchinson told Ms. Noell that the town had provided everything it could. Ms. Hutchinson recalls that Ms. Noell responded, "Okay, that's fine."

It appeared that Ms. Hutchinson's understanding of the case was accurate at the time, because Mr. Graham's attorneys took no further action in Superior Court. But they did not withdraw the suit.

What sparked the latest confusion is that at the end of 2005 the Superior Court's computer, noting that no action had been taken in the case by either side, generated a default notice, which was sent to both parties. In January, West Tisbury, still under the impression that the matter had been dropped, still did nothing. Mr. Graham's attorneys, however, asked the court to render a default judgment against the town and asked for $1,800 in lawyer's fees - even though the ATB hearings were concluded and no further evidence could be presented to the ATB.

Now, West Tisbury had to scramble. When Ms. Rand learned on Friday, Feb. 24, that a default judgment was about to be issued on the following Monday, she called town counsel Rappaport. He has a conflict because of work he has done for Mr. Graham in the past, and so he suggested Robert McCarron, who has worked for the town in other matters. Ms. Rand then called Mr. McCarron, and he, on short notice, attended the default hearing and asked for and received more time to prepare a response. The Superior Court judge has already denied the claim for $1,800 in attorney's fees, and Mr. McCarron, who has since researched the matter, will present the town's response to the suit in court tomorrow.

It is worth noting, in light of the controversy over Ms. Hutchinson's fees in the Graham case, that Mr. McCarron is representing the town, not the assessors, and will be paid from the legal fees line-item in the town budget. There is no need, according to Ms. Rand and Mr. McCarron, for a special appropriation or special selectmen's appointment.

The West Tisbury selectmen's meetings have recently been well attended, crowding the tiny meeting room in town hall. Until further notice, the selectmen will meet at the Howes House, where there is more seating for the audience.