Beacon Hill Politics Endanger Outcome in Tax Case Dispute

By IAN FEIN

In a rush of political maneuvering that played out on Beacon Hill this week, the chairman of the Massachusetts Appellate Tax Board on Monday withdrew her name from consideration only two days before a scheduled hearing on her reappointment to the post.

The uncertain fate of the chairman complicates the outcome of the West Tisbury-Graham property tax case and raises the possibility that it may have to be retried.

The controversial and costly case, which has roiled the town of West Tisbury and attracted attention from state officials and assessors across the commonwealth, played at least a partial role in the events that took place this week.

Tax board chairman Anne T. Foley is presiding over the pending case, which she heard last summer. Closing briefs were filed at the state tax board on Monday.

After a 20-year career as a tax attorney, most recently as a litigator in the Massachusetts Department of Revenue, Chairman Foley was appointed to her tax board post last March. She received unanimous support from the eight-member governor's council - an elected board that oversees and approves judicial nominations in the commonwealth - after Gov. Mitt Romney appointed her to fill out the remaining year of the term vacated by former tax board chairman Abigail Burns.

The appellate tax board is a quasi-judicial state agency within the executive branch that hears and decides property tax appeals from both the state and local levels.

Chairman Foley was up for reappointment this spring, and Governor Romney three weeks ago renominated her for a six-year term as board chairman. She was set for a hearing with the governor's council on Wednesday, but on Monday Governor Romney sent a letter to the council withdrawing her nomination at her request.

It is understood that Chairman Foley asked for her name to be withdrawn because she lacked support at the council and knew she might not be reappointed. Chairman Foley did not return phone calls for comment this week.

Governor's council member Carole A. Fiola of Fall River - who was elected from the first district, which includes the Cape and Islands - said yesterday she was disappointed that the governor withdrew the chairman's name and that the scheduled hearing did not take place.

"I can't speculate about what I would have done, but I am well aware and well informed about concerns related to the renomination of Anne Foley," Councilor Fiola said. "I really wanted the opportunity to have this play out in a hearing. I had a lot of questions."

Councilor Fiola said she heard complaints and concerns about Chairman Foley from tax attorneys, tax board employees and assessors across the state. Councilor Fiola did not elaborate on the nature of those complaints, but it is understood that Chairman Foley rankled many colleagues with her managerial style at the tax board.

By withdrawing her name before the council voted this week, Chairman Foley retained her post at the appellate tax board in a holdover status - that is, she will remain as chairman until the council appoints a replacement or until she resigns. Yesterday afternoon, it did not appear that either was imminent.

Councillor Fiola said the governor is aware of the council's concerns, and that she hopes a new candidate will be nominated for the tax board position in a timely fashion. There was also some speculation this week that the governor, who is weighing a presidential run and is not seeking reelection in the fall, may hold out on appointing anyone until he leaves office.

A spokesman for Governor Romney on Wednesday declined to comment on a timeline for the tax board appointment, other than to say that Chairman Foley will continue to serve in a holdover capacity and that the governor reserved the right to resubmit her nomination at a later time. The spokesman said that the governor's renomination of Chairman Foley earlier this month indicated confidence in her work.

The timeline of any new appointment could have an impact on the Graham case. If the chairman is replaced or leaves her post before the tax board renders a decision, it will open the case to appeal from either side. Case law suggests that if the presiding officer who heard the case is not involved in the decision, an appeal of that decision would succeed, and the parties would have to start the hearing all over again.

While Chairman Foley alone presided over the case, the entire five-member tax board will vote on the final ruling. Response briefs are due at the end of next month, after which the board historically issues decisions within three to six months.

Attorney Richard Wulsin, who is representing Mr. Graham in the case, declined to comment about the tax board maneuvering this week. Attorney Ellen Hutchinson, who is representing the West Tisbury assessors, said yesterday that she just learned about the chairman's holdover status and had not had the opportunity to consider its potential impact on the case.

An appeal of the case would likely pose financial hardships, especially for the town of West Tisbury. The Graham case, which was heard at the state tax board over the course of four months last summer, became the longest and costliest residential property tax appeal in the history of the commonwealth. It has cost West Tisbury taxpayers roughly a quarter-million dollars thus far. Mr. Graham said last fall that he would not reveal how much he had spent. Payment of the legal bills was a controversial topic in West Tisbury town politics last winter.

Councilor Fiola said this week that one of her concerns about Chairman Foley was her handling of the Graham case - the length of the hearing and the associated cost to West Tisbury taxpayers.

"To me the handling of this whole West Tisbury case is unfortunate to all the people out there. We haven't seen this before; it's unprecedented," Councilor Fiola said. "It appears to me that the case did not necessarily have to take the time it has taken, and that's a concern."

She acknowledged that - should the case be retried - the cost to West Tisbury taxpayers will rise. "Maybe there is not a win-win per se, but you would have to perhaps assume that it was for the greater good of the commonwealth," she said.

While Chairman Foley has attracted criticism for some procedural changes she implemented at the tax board, the Graham case has largely defined her first year on the board. Because of the length of the case, she presided over less than 10 other hearings in the last year; other commissioners heard more than 100 cases.

Chairman Foley drew ire from some of her fellow employees when, only weeks into the job, she decided to preside over the Graham hearing as her first-ever tax board case, instead of leaving it to a more experienced commissioner. The appeal, when it first came to the board, was recognized as one of the largest residential tax values ever challenged.

Admittedly learning about property assessment theory while hearing the case, Chairman Foley became an active participant in the proceedings and often interrupted attorneys on both sides to directly question witnesses or request additional documents.

Last August, on the 26th day of the hearing, Chairman Foley addressed criticisms about the length of the trial. She told the attorneys that, given the serious nature of the allegations involved, she felt it judicious to give each side ample opportunity to present its case.

"On the first day of this trial you made a very serious allegation of fraud," Chairman Foley told Mr. Wulsin. "I believe with that allegation on the table, together with the tax overvaluation issue, and disproportionate assessment, that the town should be allowed to present its case in a fair manner," she continued.

"[Regarding] the delay aspect that you repeatedly brought up, I have heard it," Chairman Foley added. "I believe this case has been handled in an expeditious manner with due respect for the due process of both parties."