State Appellate Tax Board Sees Shake-Up at the Top

By IAN FEIN

Gov. Mitt Romney in an unprecedented shake-up this week nominated two new members to the Massachusetts Appellate Tax Board, including a replacement for the embattled chairman who presided over William W. Graham's high-profile property tax case against West Tisbury assessors.

Filed with the Governor's Council on Wednesday, the nominations come at a time of intense turmoil within the quasi-judicial state agency, and only two weeks after the tax board issued a decision in the Graham tax case.

The ruling was found largely in favor of the West Tisbury assessors, though Mr. Graham, who is a year-round resident of West Tisbury, has vowed to take his case to the Massachusetts Appeals Court.

The events this week also suggest that outgoing tax board chairman Anne T. Foley will not participate in writing the findings of fact for the case that she presided over in great detail last summer and fall.

Though the tax board nominations have been expected for some time, they will likely now reignite a political firestorm on Beacon Hill. The turf war between the tax board and Romney administration played out this spring, but quieted down while all sides awaited a decision in the West Tisbury case.

Governor Romney nominated Chairman Foley for reappointment to the tax board in March, but she withdrew her name from consideration only two days before a scheduled hearing because she lacked support at the council and was likely to lose her post. It is understood that Chairman Foley was criticized for her overall case management at the board and, in particular, her handling of the Graham case.

After surviving a coup from within the board, Chairman Foley stayed on at the agency primarily to rule on the West Tisbury case. She has not been seen in the tax board offices in the two weeks since the decision was issued, and yesterday could not be reached for comment.

Governor Romney this week nominated Thomas W. Hammond Jr. of Wellesley to replace Mrs. Foley as chairman, and also Thomas J. Mulhern of Needham to replace tax board commissioner Donald E. Gorton 3rd. Mr. Hammond is a tax attorney with more than 20 years experience at the state department of revenue, and Mr. Mulhern is a private real estate appraiser and chairman of the Needham board of assessors.

Asked to comment on the overall situation with the appellate tax board, a spokesman for Governor Romney in a prepared statement said: "As you know, there are two open positions on this board, and the governor was pleased to nominate such highly qualified candidates."

Former appellate tax board chairman Kenneth Gurge, who as a private attorney now represents both taxpayers and municipalities before the board, said yesterday that to his knowledge, this week marked the first time that the governor had simultaneously nominated two new members to the board. And though Mr. Gurge said he respected both new candidates, he singled out Commissioner Gorton for praise and questioned the governor's motives for nominating a successor at this time.

A tax board member for nine years, Commissioner Gorton has been up for renomination and serving in a holdover status since Governor Romney took office more than three years ago. He said yesterday that he felt he was under attack for speaking out against Chairman Foley and the administration this spring.

"It's obvious that I'm being targeted because they want to clean house, and clearly they're bitter about the Anne Foley debacle," said Commissioner Gorton on the telephone yesterday. He filed an ethics complaint against Chairman Foley this spring, claiming that she tried to influence his ruling in a case she had previously worked on as an attorney at the department of revenue.

Commissioner Gorton also speculated that his snub by the administration may have been a matter of discrimination. He served for six years as chairman of the Greater Boston Lesbian/Gay Political Alliance, and the news of the tax board nominations broke on Wednesday - when the state house was considering a possible constitutional amendment banning same-sex marriage.

Interviews at the Governor's Council with both nominees have yet to be scheduled, though a battle over the Gorton position may play out in the coming weeks. It is understood that Mr. Gorton has strong support both within the tax board and the council, an eight-member elected board that considers state judicial nominations. The five members of appellate tax board are nominated by the governor and voted on by the council.

Mr. Gorton will remain on the tax board in his holdover status if the council does not appoint a successor.

Mr. Gurge yesterday also noted an inconsistency in the way the Romney administration handled the two tax board seats. The governor waited to nominate a successor to Chairman Foley until after she had decided the West Tisbury case, though he nominated a successor to Commissioner Gorton while he still has more than 50 pending cases that he heard as the presiding officer.

Mr. Gurge said if Commissioner Gorton is replaced before the tax board renders a decision in those cases, many of them would likely have to be retried - at great cost to the cities, towns and taxpayers involved.

Though only one commissioner presides over a tax board hearing, a quorum of the five-member board must vote on any substantial decision. And the Massachusetts Supreme Judicial Court in 2002 overturned a tax board decision because the presiding officer did not participate in the deliberations in a meaningful manner. But that same ruling from the state's highest court said the presiding officer was not required to help issue the findings of fact.

In property tax cases the appellate tax board traditionally issues a one-page decision with a ruling of fair market value, absent any explanation. If requested by either party, the board then releases findings of fact and reports some months later.

Because Chairman Foley participated in West Tisbury decision last month, she is not required to assist with the findings of fact, which were requested by Mr. Graham within the ten-day deadline.

Tax board chief counsel David Cella - who attended all 36 days of testimony in the Graham hearing last summer, as well as all five days viewing properties on the Vineyard last fall - likely will assist in the findings of fact. Other tax board employees said last year it was unprecedented for a chief counsel to sit through such a lengthy hearing on a residential appeal.

"I generally play a role in virtually all of the findings of fact, other than those cases I am recused from," said Mr. Cella, who came to the tax board from the department of revenue with Chairman Foley. "Beyond that, as a general matter it would be inappropriate for me to comment on the deliberative process for any case."