How the Metro Center became such a mess
I'm not sure whether Fairfield residents have been kept fully apprised of the serious status of the third train station project in Fairfield known as the Fairfield Metro Center. In short, the project has been plagued with mismanagement and failures to perform many critical areas of responsibility that have left the project in a state of "limbo" to quote the Connecticut Post front page of Friday, March 6, 2009. In addition "How the Metro Center Became Such a Mess" was the title of a CT Post article on March 15th, 2009. This article can be found at http://www.connpost.com/fairfield/ci_11915138
The critical areas that have not been performed by the developer, Blackrock Realty, together with a recent foreclosure action filed against it, have created an extremely complicated mess that threatens the project.
I have enclosed two articles that were published in the local media that explain the situation as well as possible.
The state has committed some $48 million to build a bridge over the tracks in Fairfield as part of the project. However, in view of the complications pointed out in the following articles, we may find ourselves with a "bridge to nowhere" if some competent authority does not take charge of the project.
Fairfield’s First Selectman Kenneth Flatto has asked for $28 million in stimulus funds to do the work that Blackrock should have done. As you can see from these articles the "shovel readiness" of the project is very much in doubt.
Tuesday, March 17, 2009
Metro Center Issues:
FAILURES AND BAILOUTS
While “Failures and Bailouts” is not exactly a new phenomenon, it has become so pervasive that it is now an established part of our culture.
“Failures” refers to the failure of persons in authority to act responsibly and honestly in their management of assets the general public has entrusted to them. The most common perpetrators of these failures are persons in authority in banking, investment and insurance institutions, and, of course, persons entrusted with governmental authority.
“Bailouts” refers to the inevitable necessity for the general public to bear the burden of paying for the failures of these perpetrators in order to save ourselves from the threatening disasters that loom in their wake.
It is only natural that the general public is infuriated and frustrated by this phenomenon. We are furious because we are innocent yet doubly victimized by these perpetrators: first by their failure to act responsibly, then by our being forced to bailout the guilty parties. We are frustrated because we feel powerless to hold them accountable. In the past, we simply gave up. Grudgingly, we just paid and suffered the consequences. But, now that these failures have become so pervasive, we must find ways to impose accountability. We can begin by examining a current history of failures by our Town officials right here in Fairfield that will require our bailing them out at our expense.
Our Town officials, First Selectman Flatto and Town Attorney Saxl, have been staunch advocates of the Metro Center project since its inception in 2003, despite a history of failures that could have been avoided.
Initially, we were told that there were two reasons for a third train station: first, to satisfy ADA requirements for access by the disabled; and second the need for increased parking. Other towns along the tracks had solved these problems by building bridges or tunnels for such access and parking garages over existing parking areas to increase parking. Our officials dismissed these alternatives in favor of the Metro Center project. They claimed that enormous project would yield significant tax revenues for the Town. They also claimed that increased parking at the existing station would increase Fairfield Center traffic.
It was brought to the attention of our officials that Mr. Kurt Wittek, a principal of Blackrock Realty (BRR), the Metro Center developer, had a somewhat checkered past in his business activities that should cause concern for his ability to complete the project. That concern was dismissed as a thing of the past to now be ignored. The increased traffic argument ignored the fact that the proximity of the existing station to I-95 and the main roads leading to areas north of the center where most commuters lived, would likely present less of a traffic problem than the Metro Center. A completed Metro Center was estimated to increase the 1,500 parking places at the new train station to a total of 4,361 spaces. That number presented traffic problems that would require extensive infrastructure work on adjacent streets costing the Town more than $2,000,000. Nevertheless, the administration decided to enter into the tripartite Agreement with BRR and the State Department of Transportation (the DOT).
Two apparent failures by our officials now emerge from these facts: (1) the failure to adequately investigate whether the financial resources of BRR/Wittek would be sufficient to fund the private part of the project estimated to cost in excess of $300,000,000 (In fact, BRR’s funds for the project apparently have dried up at only the $20,000,000 mark as will be explained.); and, (2) the failure to thoroughly compare the cost of the alternatives that other towns had successfully pursued. Also, if after doing so, the Town had decided not to pursue the Metro Center, the DOT might not have pursued its involvement in a third train station at a cost in excess of $48,000,000 of taxpayer money.
After the Agreement became effective, the history of the Metro Center project became a series of more failures that culminated in the recent filing of a foreclosure action against BRR and Wittek by their mortgage holder Banknorth N.A. The following is a litany of the most serious of these failures by our Town officials. (Others will surely surface.)
A Failure to Enforce the Agreement. The tripartite Agreement provided for several preconditions that each party had to perform and the time limits for performing them. Under Section 6.5, if BRR failed to perform its preconditions within nine months of the effective date of the agreement, the Town could give notice that, unless BRR diligently pursued completion of its preconditions for ninety days, the Town could terminate its agreement with BRR.
One of BRR’s preconditions was to provide the Town with of a letter of credit in the amount of $500,000, to assure completion of the train depot and any excess remediation. If BRR did not build the depot, then the Town would have the right to draw on the letter of credit in order to build the depot and do the excess remediation. The time to file this letter of credit passed years ago but our Town officials have failed to require it from BRR to this day. Since it now appears certain that BRR will not build the depot, it will be necessary for the Town to build the depot at its expense.
Another of BRR’s preconditions was to remediate any condition arising from its demolition of a building on the parking land of the Town and to remediate conditions on the commuter waiting area land. However, our officials have also failed to enforce this obligation of BRR, and it will now be necessary for the Town to assume that expense.
BRR was also required to post additional letters of credit to assure it would do all the remediation required of it on the entire site. That remediation had been cited by our officials as another reason to support the Metro Center project. However, our officials have also failed to require BRR to file letters of credit covering all such remediation as required by the Agreement. Only a partial letter of credit covering a small portion of the site was provided by BRR. The major part of the site remains unremediated with no performance bond on file.
When our Conservation Department cited BRR for violations and BRR complained the Department was delaying the project, our officials failed to support the Department and, instead, accommodated BRR by removing the Department from the project and installing an outside consultant to be paid for by BRR. Since then, both our officials and the consultant have failed to require BRR to perform its obligations.
The Agreement provided that BRR was to give priority to its obligations for the “Public Project” and to perform them in a timely manner. These obligations included remediating the land under roadways, building the roadways, remediating the commuter waiting area land and sharing 50-50 with the Town for any excess parking land remediation. Our officials have failed to enforce these obligations and none of this work has been done and the Town will have to assume these obligations of BRR at its cost.
The reason for BRR’s failure to perform these obligations surfaced when Banknorth, N.A. brought a foreclosure action against BRR and Wittek for their default in making mortgage payments. BRR had apparently run out of financing.
A Failure of Transparency. Another characteristic of “failures and bailouts” is the practice of those responsible for the failure to withhold notice of their impending disaster from the public until the last moment, when they have totally lost control of the situation. This practice is a “failure of transparency.”
Messrs. Flatto and Saxl have failed to provide the transparency of government to which our citizens are entitled. They either knew or should have known of the events leading to the failure of BRR and the foreclosure action by Banknorth. The effect of those events on Town interests cannot be minimized. Yet, Mr. Flatto was far less than forthright when he gave his reaction to these events. He was quoted as saying that he remained “confident the [foreclosure] action will have no impact on the railroad station and commuter parking lot” and that he “know[s] that the commitments to keep the train station project on target by all three parties are solid.” No Impact!? Then why is Flatto now asking for an additional $28,000,000 in stimulus funds to spend on the project besides the Town’s original budget of only $10,000,000? Flatto also said “the original plans called for Blackrock Realty to obtain a state loan for the road construction, but the developer [BRR] may instead apply for federal economic stimulus funds ‘for the public parts of the project’. . .” Flatto’s remarks totally failed to describe the true impact of the foreclosure on Town interests by not to addressing the following questions:
1. How can we assume that BRR will cure its mortgage default in the amount of $20,123,239.92, when it cannot even file its $500,000 letter of credit?
2. How could Mr. Flatto “know” that BRR’s commitment to keep the train station project on target is “solid” in the face of BRR’s apparent insolvency?
3. Since it now appears obvious that BRR will never file the $500,000 letter of credit for the depot, how could Mr. Flatto claim these events have no impact on the project, when the Town will now have to pay to build the depot with Town funds?
4. If Mr. Flatto was in possession of facts that prove the foreclosure action will have no impact on the station project, why has he not divulged them to the public in a responsible manner rather than issuing his unsupported statements?
5. If Mr. Flatto was not in possession of such facts, why has he ignored the real possibility that the bank may acquire the Metro Center site, which includes the roadway land essential to the train station part of the project?
6. If BRR will no longer build its grandiose commercial project (offices, stores, hotels, etc.), what effect will that situation have on the $2,000,000 bond the Town has put up with the State Traffic Commission?
Rather than bring these issues to the attention of the public, Mr. Flatto continues to ignore them with more of his typical doubletalk as will be pointed out here. That is even worse than a mere failure of transparency because those issues are too obvious to be covered up. They will surface because they must, and he must be made accountable to answer them.
The Bailout.
Our Town officials have already taken steps to bail themselves out from all their failures as above described. Media reports have stated that the Town of Fairfield has asked for $65.5 million in stimulus funds, of which $28 million is to be allocated to the Metro Center project.
The gall of our Town officials in making this request without first providing the public with the facts that made it necessary is unmitigated, and it displays no sense of responsibility for their failures. Their unilateral decision to assign a federal grant as large as $28,000,000 to the train station project without prior input and approval from the Board of Finance and the RTM, reaches a level of arrogance that other bailout petitioners never had the effrontery to attempt. Our Town cannot tolerate such heavy-handed and irresponsible behavior on the part of these officials any longer. We must demand that they answer the following questions before proceeding any further in their attempts to bail themselves out from responsibility for the mess they have created.
1. When and where did these officials get the authority to designate an additional $28,000,000 for this project when the Board of Finance and the RTM only approved an Agreement calling for an investment of $10,000,000 by the Town.
2. Where did they get the authority to unilaterally decide the priorities for using any stimulus funds to which the Town may be entitled?
3. By making this request on the terms they set, have our officials foreclosed us from challenging the validity of this amount or from deciding on other uses for it in whole or in part?
4. If our officials had required BRR to complete its work on the public project in a timely manner as per the Agreement, wouldn’t the Town have been able to allocate this $28,000,000 in stimulus money to other Town projects? And, if there were no other projects that would qualify for the money, isn’t it true the Town would not have needed to ask for it and saved the taxpayers this huge sum money? The bottom line is that, in any case, the $28,000,000 is being wasted in these hard times because of the failure of our officials to enforce the Agreement.
5. How can Mr. Flatto applaud himself, as he recently did, for cutting programs to save a couple of million dollars when, at the same time, he fails to mention that we will be asked to waste $28,000,000 that we should never have needed to spend, except for his failures to enforce the Agreement?
6. Furthermore, on what basis did these officials arrive at the sum of $28,000,000, and exactly what do they intend to do with it?
7. If the Town will enter into a new agreement with some contractor to complete the public project, who will be in charge of enforcing that agreement? Given the abysmal failure of the past would it not be better to avoid a repetition of such failure by reinstalling the Conservation Department to oversight at no cost to the Town rather than have us pay Redniss & Meade?
8. If the $28,000,000 proves insufficient to complete the project, does Flatto have a plan to cover any shortfall, and, if so, what is it?
9. Has the State given any assurance to Mr. Flatto that, when it received its allotment of stimulus funds, the State would definitely give the Town the $28 million?
10. If there was no such assurance, and for some reason the $28 million was not forthcoming from the State, does the Town have a specific back-up plan for raising the money, and, if so, what is that plan?
11. If the State was no longer willing to make the loan to BRR for the roads, how could BRR possibly expect to receive any stimulus money? So why would Flatto present that as a possibility?
12. Most recently Mr. Flatto admits that BRR “was supposed to construct the road through the complex and the capping under the. . . commuter lot” but he fails to mention the train depot fiasco for obvious reasons. He claims that the stimulus funds were requested “to avoid further delays if private owner [BRR] is unable to perform their portion of the responsibilities on time” or “because the developer may not have readily available financing.” This convoluted explanation is another of his misleading statements that indicates either incompetence or an apparent attempt to cover-up his failures. If the Town is stepping in to take over BRR’s obligations just to avoid delays by BRR, how realistic is it to assume that BRR will ever resume work on the project? And even if it did, how and when would the Town expect to get the $28,000,000 back from BRR after it had done BRR’s work?
13. In the same recent article, Mr. Saxl, in answer to a question about the foreclosure, is quoted as saying “Wittek said to me he filed an answer and they were going to defend it.” How Wittek could defend a default of more than $20,000,000 without money is a mystery that demands explanation. If there were a real possibility that BRR could successfully defend the action, why would the Town not wait to find out before proceeding to spend our money? And, if there is no such possibility, why did Saxl mention it at all?
These are questions that lead to the most serious question of all:
What did Mr. Flatto and Mr. Saxl know about BRR’s financial condition and its effect on BRR’s ability to complete the project and when did they know it?
The people of Fairfield are entitled to a clear and unequivocal answer to that question as a first step in unraveling the many confusing and misleading statements they have been told.
Any competent Town official in authority would realize that the possibility of BRR returning to perform its obligations on the project is unrealistic and that, until some other solution appears, the most realistic possibility is that Banknorth will proceed with its action and acquire title to the Metro Center site including the roadway land needed by the Town. Under those circumstances, a competent official would take steps under section 6.5 of the Agreement to terminate the Town’s Agreement with BRR and prepare to explore ways to acquire the land it needs for the public project.
There is also the possibility that our officials would shop around for a new developer for what was the Metro Center site as an alternate means of bailing themselves out from responsibility. If that should happen, should we not be very concerned, based on past experience, about any such solution being entrusted to these Town officers? If we are not careful, might we not find ourselves with another history of failed promises and failed performance, leading to another disaster for us to bail out?
Conclusion: It should be clear from just a cursory examination that the Metro Center project has been out of the Town’s control from the very beginning. BRR was always being accommodated and never required to perform its obligations in a timely manner under the Agreement. The responsibility for that failure rests solely with Messrs. Flatto and Saxl, because they failed to enforce the Agreement.
Now we also find our officials out of control in their desperate attempts to bail themselves out from the consequences of their failure to control the progress of the project. In fact, they have added a new element to the phenomenon of “failures and bailouts.” Normally, a government conducts an investigation before it decides that it would be in the public interest to provide the bailout funds to the parties responsible for the failures. In this case, our officials have bypassed that process and unilaterally decided it is in the public interest to help themselves to the use of public funds to bail out their own failures and also to decide how much they will use. This abuse seems all too reminiscent of Flatto’s unilateral decision that it was in the public interest to remove the Conservation Department from the Metro Center project. When will Mr. Flatto stop this practice, if he’s not stopped now?
Based on this history, we can surely expect that Mr. Flatto will attempt to divert attention from his failures as we have described, by claiming to have heroically saved the day with stimulus funds that will not come out of Town funds. What he fails to understand is that those stimulus funds belong to the people of Fairfield just as much as Town deposits do. They are not some gift from the federal government. Stimulus funds are derived either from taxes we have paid or funds borrowed by the federal government on our behalf that we citizens will be forced to repay in the form of future taxes. It is our money you are dealing with, Mr. Flatto, and it should not be taken from us without our informed consent!
Enough is enough! It is now time for us to take control of the problems facing the train station project from these officials and demand that our elected representatives in the RTM appoint a bipartisan commission, to be chaired by some respected unaffiliated Fairfield citizen, to investigate all facets of this project and to recommend the most practical and least costly solutions for us to pursue. A failure by the RTM to undertake some such initiative will make it a party to covering up the biggest financial disaster in our Town’s history.
If wasting $28,000,000 of their money doesn’t wake up the people of Fairfield to the failures we described, then what will?
Edward Bateson Jeanne Konecny
Alexis Harrison Philip Meiman
Joy Shaw Pamela Ritter
Jane Talamini Les Schaffer
A group of concerned citizens of Fairfield composed of an equal number of Democrats and Republicans.
FAILURES AND BAILOUTS
While “Failures and Bailouts” is not exactly a new phenomenon, it has become so pervasive that it is now an established part of our culture.
“Failures” refers to the failure of persons in authority to act responsibly and honestly in their management of assets the general public has entrusted to them. The most common perpetrators of these failures are persons in authority in banking, investment and insurance institutions, and, of course, persons entrusted with governmental authority.
“Bailouts” refers to the inevitable necessity for the general public to bear the burden of paying for the failures of these perpetrators in order to save ourselves from the threatening disasters that loom in their wake.
It is only natural that the general public is infuriated and frustrated by this phenomenon. We are furious because we are innocent yet doubly victimized by these perpetrators: first by their failure to act responsibly, then by our being forced to bailout the guilty parties. We are frustrated because we feel powerless to hold them accountable. In the past, we simply gave up. Grudgingly, we just paid and suffered the consequences. But, now that these failures have become so pervasive, we must find ways to impose accountability. We can begin by examining a current history of failures by our Town officials right here in Fairfield that will require our bailing them out at our expense.
Our Town officials, First Selectman Flatto and Town Attorney Saxl, have been staunch advocates of the Metro Center project since its inception in 2003, despite a history of failures that could have been avoided.
Initially, we were told that there were two reasons for a third train station: first, to satisfy ADA requirements for access by the disabled; and second the need for increased parking. Other towns along the tracks had solved these problems by building bridges or tunnels for such access and parking garages over existing parking areas to increase parking. Our officials dismissed these alternatives in favor of the Metro Center project. They claimed that enormous project would yield significant tax revenues for the Town. They also claimed that increased parking at the existing station would increase Fairfield Center traffic.
It was brought to the attention of our officials that Mr. Kurt Wittek, a principal of Blackrock Realty (BRR), the Metro Center developer, had a somewhat checkered past in his business activities that should cause concern for his ability to complete the project. That concern was dismissed as a thing of the past to now be ignored. The increased traffic argument ignored the fact that the proximity of the existing station to I-95 and the main roads leading to areas north of the center where most commuters lived, would likely present less of a traffic problem than the Metro Center. A completed Metro Center was estimated to increase the 1,500 parking places at the new train station to a total of 4,361 spaces. That number presented traffic problems that would require extensive infrastructure work on adjacent streets costing the Town more than $2,000,000. Nevertheless, the administration decided to enter into the tripartite Agreement with BRR and the State Department of Transportation (the DOT).
Two apparent failures by our officials now emerge from these facts: (1) the failure to adequately investigate whether the financial resources of BRR/Wittek would be sufficient to fund the private part of the project estimated to cost in excess of $300,000,000 (In fact, BRR’s funds for the project apparently have dried up at only the $20,000,000 mark as will be explained.); and, (2) the failure to thoroughly compare the cost of the alternatives that other towns had successfully pursued. Also, if after doing so, the Town had decided not to pursue the Metro Center, the DOT might not have pursued its involvement in a third train station at a cost in excess of $48,000,000 of taxpayer money.
After the Agreement became effective, the history of the Metro Center project became a series of more failures that culminated in the recent filing of a foreclosure action against BRR and Wittek by their mortgage holder Banknorth N.A. The following is a litany of the most serious of these failures by our Town officials. (Others will surely surface.)
A Failure to Enforce the Agreement. The tripartite Agreement provided for several preconditions that each party had to perform and the time limits for performing them. Under Section 6.5, if BRR failed to perform its preconditions within nine months of the effective date of the agreement, the Town could give notice that, unless BRR diligently pursued completion of its preconditions for ninety days, the Town could terminate its agreement with BRR.
One of BRR’s preconditions was to provide the Town with of a letter of credit in the amount of $500,000, to assure completion of the train depot and any excess remediation. If BRR did not build the depot, then the Town would have the right to draw on the letter of credit in order to build the depot and do the excess remediation. The time to file this letter of credit passed years ago but our Town officials have failed to require it from BRR to this day. Since it now appears certain that BRR will not build the depot, it will be necessary for the Town to build the depot at its expense.
Another of BRR’s preconditions was to remediate any condition arising from its demolition of a building on the parking land of the Town and to remediate conditions on the commuter waiting area land. However, our officials have also failed to enforce this obligation of BRR, and it will now be necessary for the Town to assume that expense.
BRR was also required to post additional letters of credit to assure it would do all the remediation required of it on the entire site. That remediation had been cited by our officials as another reason to support the Metro Center project. However, our officials have also failed to require BRR to file letters of credit covering all such remediation as required by the Agreement. Only a partial letter of credit covering a small portion of the site was provided by BRR. The major part of the site remains unremediated with no performance bond on file.
When our Conservation Department cited BRR for violations and BRR complained the Department was delaying the project, our officials failed to support the Department and, instead, accommodated BRR by removing the Department from the project and installing an outside consultant to be paid for by BRR. Since then, both our officials and the consultant have failed to require BRR to perform its obligations.
The Agreement provided that BRR was to give priority to its obligations for the “Public Project” and to perform them in a timely manner. These obligations included remediating the land under roadways, building the roadways, remediating the commuter waiting area land and sharing 50-50 with the Town for any excess parking land remediation. Our officials have failed to enforce these obligations and none of this work has been done and the Town will have to assume these obligations of BRR at its cost.
The reason for BRR’s failure to perform these obligations surfaced when Banknorth, N.A. brought a foreclosure action against BRR and Wittek for their default in making mortgage payments. BRR had apparently run out of financing.
A Failure of Transparency. Another characteristic of “failures and bailouts” is the practice of those responsible for the failure to withhold notice of their impending disaster from the public until the last moment, when they have totally lost control of the situation. This practice is a “failure of transparency.”
Messrs. Flatto and Saxl have failed to provide the transparency of government to which our citizens are entitled. They either knew or should have known of the events leading to the failure of BRR and the foreclosure action by Banknorth. The effect of those events on Town interests cannot be minimized. Yet, Mr. Flatto was far less than forthright when he gave his reaction to these events. He was quoted as saying that he remained “confident the [foreclosure] action will have no impact on the railroad station and commuter parking lot” and that he “know[s] that the commitments to keep the train station project on target by all three parties are solid.” No Impact!? Then why is Flatto now asking for an additional $28,000,000 in stimulus funds to spend on the project besides the Town’s original budget of only $10,000,000? Flatto also said “the original plans called for Blackrock Realty to obtain a state loan for the road construction, but the developer [BRR] may instead apply for federal economic stimulus funds ‘for the public parts of the project’. . .” Flatto’s remarks totally failed to describe the true impact of the foreclosure on Town interests by not to addressing the following questions:
1. How can we assume that BRR will cure its mortgage default in the amount of $20,123,239.92, when it cannot even file its $500,000 letter of credit?
2. How could Mr. Flatto “know” that BRR’s commitment to keep the train station project on target is “solid” in the face of BRR’s apparent insolvency?
3. Since it now appears obvious that BRR will never file the $500,000 letter of credit for the depot, how could Mr. Flatto claim these events have no impact on the project, when the Town will now have to pay to build the depot with Town funds?
4. If Mr. Flatto was in possession of facts that prove the foreclosure action will have no impact on the station project, why has he not divulged them to the public in a responsible manner rather than issuing his unsupported statements?
5. If Mr. Flatto was not in possession of such facts, why has he ignored the real possibility that the bank may acquire the Metro Center site, which includes the roadway land essential to the train station part of the project?
6. If BRR will no longer build its grandiose commercial project (offices, stores, hotels, etc.), what effect will that situation have on the $2,000,000 bond the Town has put up with the State Traffic Commission?
Rather than bring these issues to the attention of the public, Mr. Flatto continues to ignore them with more of his typical doubletalk as will be pointed out here. That is even worse than a mere failure of transparency because those issues are too obvious to be covered up. They will surface because they must, and he must be made accountable to answer them.
The Bailout.
Our Town officials have already taken steps to bail themselves out from all their failures as above described. Media reports have stated that the Town of Fairfield has asked for $65.5 million in stimulus funds, of which $28 million is to be allocated to the Metro Center project.
The gall of our Town officials in making this request without first providing the public with the facts that made it necessary is unmitigated, and it displays no sense of responsibility for their failures. Their unilateral decision to assign a federal grant as large as $28,000,000 to the train station project without prior input and approval from the Board of Finance and the RTM, reaches a level of arrogance that other bailout petitioners never had the effrontery to attempt. Our Town cannot tolerate such heavy-handed and irresponsible behavior on the part of these officials any longer. We must demand that they answer the following questions before proceeding any further in their attempts to bail themselves out from responsibility for the mess they have created.
1. When and where did these officials get the authority to designate an additional $28,000,000 for this project when the Board of Finance and the RTM only approved an Agreement calling for an investment of $10,000,000 by the Town.
2. Where did they get the authority to unilaterally decide the priorities for using any stimulus funds to which the Town may be entitled?
3. By making this request on the terms they set, have our officials foreclosed us from challenging the validity of this amount or from deciding on other uses for it in whole or in part?
4. If our officials had required BRR to complete its work on the public project in a timely manner as per the Agreement, wouldn’t the Town have been able to allocate this $28,000,000 in stimulus money to other Town projects? And, if there were no other projects that would qualify for the money, isn’t it true the Town would not have needed to ask for it and saved the taxpayers this huge sum money? The bottom line is that, in any case, the $28,000,000 is being wasted in these hard times because of the failure of our officials to enforce the Agreement.
5. How can Mr. Flatto applaud himself, as he recently did, for cutting programs to save a couple of million dollars when, at the same time, he fails to mention that we will be asked to waste $28,000,000 that we should never have needed to spend, except for his failures to enforce the Agreement?
6. Furthermore, on what basis did these officials arrive at the sum of $28,000,000, and exactly what do they intend to do with it?
7. If the Town will enter into a new agreement with some contractor to complete the public project, who will be in charge of enforcing that agreement? Given the abysmal failure of the past would it not be better to avoid a repetition of such failure by reinstalling the Conservation Department to oversight at no cost to the Town rather than have us pay Redniss & Meade?
8. If the $28,000,000 proves insufficient to complete the project, does Flatto have a plan to cover any shortfall, and, if so, what is it?
9. Has the State given any assurance to Mr. Flatto that, when it received its allotment of stimulus funds, the State would definitely give the Town the $28 million?
10. If there was no such assurance, and for some reason the $28 million was not forthcoming from the State, does the Town have a specific back-up plan for raising the money, and, if so, what is that plan?
11. If the State was no longer willing to make the loan to BRR for the roads, how could BRR possibly expect to receive any stimulus money? So why would Flatto present that as a possibility?
12. Most recently Mr. Flatto admits that BRR “was supposed to construct the road through the complex and the capping under the. . . commuter lot” but he fails to mention the train depot fiasco for obvious reasons. He claims that the stimulus funds were requested “to avoid further delays if private owner [BRR] is unable to perform their portion of the responsibilities on time” or “because the developer may not have readily available financing.” This convoluted explanation is another of his misleading statements that indicates either incompetence or an apparent attempt to cover-up his failures. If the Town is stepping in to take over BRR’s obligations just to avoid delays by BRR, how realistic is it to assume that BRR will ever resume work on the project? And even if it did, how and when would the Town expect to get the $28,000,000 back from BRR after it had done BRR’s work?
13. In the same recent article, Mr. Saxl, in answer to a question about the foreclosure, is quoted as saying “Wittek said to me he filed an answer and they were going to defend it.” How Wittek could defend a default of more than $20,000,000 without money is a mystery that demands explanation. If there were a real possibility that BRR could successfully defend the action, why would the Town not wait to find out before proceeding to spend our money? And, if there is no such possibility, why did Saxl mention it at all?
These are questions that lead to the most serious question of all:
What did Mr. Flatto and Mr. Saxl know about BRR’s financial condition and its effect on BRR’s ability to complete the project and when did they know it?
The people of Fairfield are entitled to a clear and unequivocal answer to that question as a first step in unraveling the many confusing and misleading statements they have been told.
Any competent Town official in authority would realize that the possibility of BRR returning to perform its obligations on the project is unrealistic and that, until some other solution appears, the most realistic possibility is that Banknorth will proceed with its action and acquire title to the Metro Center site including the roadway land needed by the Town. Under those circumstances, a competent official would take steps under section 6.5 of the Agreement to terminate the Town’s Agreement with BRR and prepare to explore ways to acquire the land it needs for the public project.
There is also the possibility that our officials would shop around for a new developer for what was the Metro Center site as an alternate means of bailing themselves out from responsibility. If that should happen, should we not be very concerned, based on past experience, about any such solution being entrusted to these Town officers? If we are not careful, might we not find ourselves with another history of failed promises and failed performance, leading to another disaster for us to bail out?
Conclusion: It should be clear from just a cursory examination that the Metro Center project has been out of the Town’s control from the very beginning. BRR was always being accommodated and never required to perform its obligations in a timely manner under the Agreement. The responsibility for that failure rests solely with Messrs. Flatto and Saxl, because they failed to enforce the Agreement.
Now we also find our officials out of control in their desperate attempts to bail themselves out from the consequences of their failure to control the progress of the project. In fact, they have added a new element to the phenomenon of “failures and bailouts.” Normally, a government conducts an investigation before it decides that it would be in the public interest to provide the bailout funds to the parties responsible for the failures. In this case, our officials have bypassed that process and unilaterally decided it is in the public interest to help themselves to the use of public funds to bail out their own failures and also to decide how much they will use. This abuse seems all too reminiscent of Flatto’s unilateral decision that it was in the public interest to remove the Conservation Department from the Metro Center project. When will Mr. Flatto stop this practice, if he’s not stopped now?
Based on this history, we can surely expect that Mr. Flatto will attempt to divert attention from his failures as we have described, by claiming to have heroically saved the day with stimulus funds that will not come out of Town funds. What he fails to understand is that those stimulus funds belong to the people of Fairfield just as much as Town deposits do. They are not some gift from the federal government. Stimulus funds are derived either from taxes we have paid or funds borrowed by the federal government on our behalf that we citizens will be forced to repay in the form of future taxes. It is our money you are dealing with, Mr. Flatto, and it should not be taken from us without our informed consent!
Enough is enough! It is now time for us to take control of the problems facing the train station project from these officials and demand that our elected representatives in the RTM appoint a bipartisan commission, to be chaired by some respected unaffiliated Fairfield citizen, to investigate all facets of this project and to recommend the most practical and least costly solutions for us to pursue. A failure by the RTM to undertake some such initiative will make it a party to covering up the biggest financial disaster in our Town’s history.
If wasting $28,000,000 of their money doesn’t wake up the people of Fairfield to the failures we described, then what will?
Edward Bateson Jeanne Konecny
Alexis Harrison Philip Meiman
Joy Shaw Pamela Ritter
Jane Talamini Les Schaffer
A group of concerned citizens of Fairfield composed of an equal number of Democrats and Republicans.
More Metro Misleading
It seems clear that every time any official connected with the Metro Center project makes a statement that’s supposed to clarify the state of the project, it only amounts to misleading the public once again. There’s a reason for their inability to make sense and this is it:
The project has been so mishandled since day one that it has become a mess of entanglements that is beyond the competence of these officials to fix without wasting taxpayer money.
What is needed is to turn the project over to an independent body or professional that has the competence to unravel all the entanglements. Until that is done, we can only expect the current administration to create more confusion.
If any one of these officials had a serious intention to learn and divulge the true facts that were totally absent from the Connecticut Post article of Friday, March 6th, it wouldn’t have been that difficult to avoid misleading the public once more.
Consider the following:
As to Mr.Kurt Wittek, a principal of Blackrock Realty {BRR}, the developer of the Metro Center project:
In the Post article, Wittek states that “he’s been unable to secure financing for his share . . .of the. . . project.”
However, a search of the Fairfield Land Records reveals the following:
1. On January 17, 2006, BRR received an increase in its line of credit from Banknorth for up to an additional $10 million over and above the balance of $10 million then due on its original mortgage.
2. The Banknorth foreclosure action reveals that the total principal advanced to BRR since January 17, 2006 was $9.925 million.
3. On July 25, 2006, BRR conveyed the Parking Land to the Town of Fairfield for a consideration of $3.750 million.
4. The Agreement provided that BRR was to demolish the building on the Parking Land before the conveyance took place and that the Town would pay BRR up to $650,000 for the demolition. However, it appears that the Town accommodated BRR by closing the purchase of the land before the building was demolished. Despite inquiry, the exact amount of the Town’s payment for the demolition has not been forthcoming but, in any event, it was not an expense that BRR was obliged to pay.
It would appear, therefore, that BRR received at least $13.675 million in funds that could have been used to advance the Public Project, (which was a priority required by the Agreement), between July 25, 2006 and the present. Nevertheless, there has been no completed remediation of the land under the roads, no construction of the roads, no furnishing of the $500,000 letter of credit to assure construction of the train depot and no remediation of the commuter waiting land, all as required by the Agreement. At the very least, Mr. Wittek should be asked to explain why none of this work has been done given the amount of funds that were available to him during this period.
Mr. Wittek should also be asked to explain how, as recently as late February, 2009, he could be promoting a new project in Hayward, California, reportedly costing an estimated $350 million, while he claims “it [BRR} doesn’t have the funding to fulfill its part of a three party agreement with the state and town to build infrastructure for the public portion of the project.”
Ironically, in the very same Post article, our First Selectman, Mr.Flatto, said that “Black Rock Realty ‘said that they do still have some resources and would like to sit down with the state and discuss these things.’”
What’s to discuss, Mr. Flatto?. If they have resources, why aren’t they being required to use them to perform their obligations? But, again in the same article, Wittek says they don’t have the funds. Who’s on first here? Can’t we get a straight story?
Wittek also states “We need to get over this infrastructure hurdle first. That’s the portion of the project we’re hoping will be a part of the stimulus package.”
Waaaaait a minute! That use of “We” seems to imply that BRR/Wittek will have something to do with how any stimulus money received by the Town will be used. Now that would really be something! If true, that would mean that the Town would be asking for $28 million in stimulus money to pay BRR to perform obligations it was supposed to pay for by itself under the Agreement. And, would that mean that BRR would be given a free pass on paying the Town back?
Given what has gone on, and assuming the Town could acquire the necessary land, wouldn’t it be more prudent for the Town to get a new contractor for the public project who would operate under Town supervision? Why continue with BRR/Wittek?
As to our First Selectman, Mr. Flatto:
Flatto has said that the Town has applied for the $28 million in stimulus money on the basis that the public project is a “shovel ready” project, apparently a requirement to be eligible for such funds.
Since all of the land that will be required for the remediation of the land needed for the roads, the construction of the roads, the construction of the train depot and the remediation of the commuter waiting area, happens to be on land not only not owned by the Town, but also subject to a foreclosure action, how the public project can be said to be “shovel ready” needs a lot of explaining.
Banknorth is certainly not going to give away its lien interest in the land. Even if a deal could be worked out with BRR/Wittek and the Bank for the Town to purchase the land necessary for the public project, the net effect of such a deal would be that the Town would be paying down BRR/Wittek’s mortgage for nothing in return.
Under the Agreement BRR was supposed to donate the roads to the Town and lease the commuter waiting area to it and the depot to the state for 99 years at $1.00 per year.
Mr. Flatto also states “What the state will not do is make any improvements to the private property.” Obviously, the state can’t make them as long as it doesn’t own the land. As was pointed out recently, the state was warned before it began its work in earnest about the possibility that BRR might not have the funds to complete the project, but it nevertheless went ahead with the bridge. So, if the state won’t build the roads and if the Town fails to get the $28 million, then we’d just have our own “bridge to nowhere.”
This scenario has placed the state in a difficult situation. It cannot connect the bridge to any roads on the other side until and unless the roads are built on the land now under foreclosure. At the same time, it will be faced with passing on the request made by Mr. Flatto for $28 million in stimulus funds to be used on a project that is not “shovel ready.”
Whoever will have the responsibility to decide on allocating stimulus money for towns in the state will be faced with a dilemma not easily solved.
Finally, Mr. Mark Barnhart, Fairfield’s Economic Development Director, who has often been the administration’s spokesman promising progress on the project, states in the Post article that “he is not aware whether the $500,000 letter of credit was ever posted. Not everything comes through this office.”
Well, Mr. Barnhardt, we were able to get written confirmation from the Assistant Town Attorney that the letter of credit was never filed and we don’t even have an office in the Town Hall.
At the risk of being repetitive, this whole fiasco involving the third train station has been the biggest self-inflicted financial disaster in the history of our Town. If the stimulus funds are obtained and used to complete BRR’s obligations, it will cost us $28 million that might have been used for other Town needs and that would have lightened the tax burdens on all of us in these hard times. That fact can never be glossed over.
This mess that has been created by this administration’s failure to enforce the Agreement which required BRR’s timely performance of its obligations. Had that been done, there would have been no need to use $28 million of taxpayer money to do what BRR should have done. Mr. Flatto, as usual, has simply glossed over that failure as if it didn’t exist. But, it does exist and it can’t be covered up. The public should now demand that any further work on this project be closely scrutinized to avoid repeating past failures.
It seems clear that every time any official connected with the Metro Center project makes a statement that’s supposed to clarify the state of the project, it only amounts to misleading the public once again. There’s a reason for their inability to make sense and this is it:
The project has been so mishandled since day one that it has become a mess of entanglements that is beyond the competence of these officials to fix without wasting taxpayer money.
What is needed is to turn the project over to an independent body or professional that has the competence to unravel all the entanglements. Until that is done, we can only expect the current administration to create more confusion.
If any one of these officials had a serious intention to learn and divulge the true facts that were totally absent from the Connecticut Post article of Friday, March 6th, it wouldn’t have been that difficult to avoid misleading the public once more.
Consider the following:
As to Mr.Kurt Wittek, a principal of Blackrock Realty {BRR}, the developer of the Metro Center project:
In the Post article, Wittek states that “he’s been unable to secure financing for his share . . .of the. . . project.”
However, a search of the Fairfield Land Records reveals the following:
1. On January 17, 2006, BRR received an increase in its line of credit from Banknorth for up to an additional $10 million over and above the balance of $10 million then due on its original mortgage.
2. The Banknorth foreclosure action reveals that the total principal advanced to BRR since January 17, 2006 was $9.925 million.
3. On July 25, 2006, BRR conveyed the Parking Land to the Town of Fairfield for a consideration of $3.750 million.
4. The Agreement provided that BRR was to demolish the building on the Parking Land before the conveyance took place and that the Town would pay BRR up to $650,000 for the demolition. However, it appears that the Town accommodated BRR by closing the purchase of the land before the building was demolished. Despite inquiry, the exact amount of the Town’s payment for the demolition has not been forthcoming but, in any event, it was not an expense that BRR was obliged to pay.
It would appear, therefore, that BRR received at least $13.675 million in funds that could have been used to advance the Public Project, (which was a priority required by the Agreement), between July 25, 2006 and the present. Nevertheless, there has been no completed remediation of the land under the roads, no construction of the roads, no furnishing of the $500,000 letter of credit to assure construction of the train depot and no remediation of the commuter waiting land, all as required by the Agreement. At the very least, Mr. Wittek should be asked to explain why none of this work has been done given the amount of funds that were available to him during this period.
Mr. Wittek should also be asked to explain how, as recently as late February, 2009, he could be promoting a new project in Hayward, California, reportedly costing an estimated $350 million, while he claims “it [BRR} doesn’t have the funding to fulfill its part of a three party agreement with the state and town to build infrastructure for the public portion of the project.”
Ironically, in the very same Post article, our First Selectman, Mr.Flatto, said that “Black Rock Realty ‘said that they do still have some resources and would like to sit down with the state and discuss these things.’”
What’s to discuss, Mr. Flatto?. If they have resources, why aren’t they being required to use them to perform their obligations? But, again in the same article, Wittek says they don’t have the funds. Who’s on first here? Can’t we get a straight story?
Wittek also states “We need to get over this infrastructure hurdle first. That’s the portion of the project we’re hoping will be a part of the stimulus package.”
Waaaaait a minute! That use of “We” seems to imply that BRR/Wittek will have something to do with how any stimulus money received by the Town will be used. Now that would really be something! If true, that would mean that the Town would be asking for $28 million in stimulus money to pay BRR to perform obligations it was supposed to pay for by itself under the Agreement. And, would that mean that BRR would be given a free pass on paying the Town back?
Given what has gone on, and assuming the Town could acquire the necessary land, wouldn’t it be more prudent for the Town to get a new contractor for the public project who would operate under Town supervision? Why continue with BRR/Wittek?
As to our First Selectman, Mr. Flatto:
Flatto has said that the Town has applied for the $28 million in stimulus money on the basis that the public project is a “shovel ready” project, apparently a requirement to be eligible for such funds.
Since all of the land that will be required for the remediation of the land needed for the roads, the construction of the roads, the construction of the train depot and the remediation of the commuter waiting area, happens to be on land not only not owned by the Town, but also subject to a foreclosure action, how the public project can be said to be “shovel ready” needs a lot of explaining.
Banknorth is certainly not going to give away its lien interest in the land. Even if a deal could be worked out with BRR/Wittek and the Bank for the Town to purchase the land necessary for the public project, the net effect of such a deal would be that the Town would be paying down BRR/Wittek’s mortgage for nothing in return.
Under the Agreement BRR was supposed to donate the roads to the Town and lease the commuter waiting area to it and the depot to the state for 99 years at $1.00 per year.
Mr. Flatto also states “What the state will not do is make any improvements to the private property.” Obviously, the state can’t make them as long as it doesn’t own the land. As was pointed out recently, the state was warned before it began its work in earnest about the possibility that BRR might not have the funds to complete the project, but it nevertheless went ahead with the bridge. So, if the state won’t build the roads and if the Town fails to get the $28 million, then we’d just have our own “bridge to nowhere.”
This scenario has placed the state in a difficult situation. It cannot connect the bridge to any roads on the other side until and unless the roads are built on the land now under foreclosure. At the same time, it will be faced with passing on the request made by Mr. Flatto for $28 million in stimulus funds to be used on a project that is not “shovel ready.”
Whoever will have the responsibility to decide on allocating stimulus money for towns in the state will be faced with a dilemma not easily solved.
Finally, Mr. Mark Barnhart, Fairfield’s Economic Development Director, who has often been the administration’s spokesman promising progress on the project, states in the Post article that “he is not aware whether the $500,000 letter of credit was ever posted. Not everything comes through this office.”
Well, Mr. Barnhardt, we were able to get written confirmation from the Assistant Town Attorney that the letter of credit was never filed and we don’t even have an office in the Town Hall.
At the risk of being repetitive, this whole fiasco involving the third train station has been the biggest self-inflicted financial disaster in the history of our Town. If the stimulus funds are obtained and used to complete BRR’s obligations, it will cost us $28 million that might have been used for other Town needs and that would have lightened the tax burdens on all of us in these hard times. That fact can never be glossed over.
This mess that has been created by this administration’s failure to enforce the Agreement which required BRR’s timely performance of its obligations. Had that been done, there would have been no need to use $28 million of taxpayer money to do what BRR should have done. Mr. Flatto, as usual, has simply glossed over that failure as if it didn’t exist. But, it does exist and it can’t be covered up. The public should now demand that any further work on this project be closely scrutinized to avoid repeating past failures.
Indescribable
A close reading of the recent statements by Mr. Kurt Wittek, managing director of Blackrock Realty, LLC and developer of the Fairfield Metro Center, in the March 6 Connecticut Post and March 11 Fairfield Citizen reveals some very telling facts.
Consider the following:
Mr. Wittek repeats, in glowing terms, his prediction that a completed FMC will be a great boon to the area a claim he's been making for six years, while very little progress has been made on the project.
However, Wittek claims that Blackrock doesn't have the funds to fulfill its obligations under the tripartite agreement with the state and the town to continue building the project right now. Yet, Wittek has never explained why BRR could not have fulfilled some of its obligations since 2006, when it had close to $14 million in funds available to it.
The unfulfilled obligations of Blackrock for the public portion of the project of which Mr. Wittek speaks are:
1. to remediate the land under and build the access roads;
2. to remediate the commuter waiting area; and
3. to provide a $500,000 letter of credit to assure building the train depot.
So how does Mr. Wittek intend to fulfill these obligations, if the FMC is going to be completed as he predicts?
Very simple! Just do nothing and let the town get stimulus funds to do it for you!
The Town of Fairfield has requested $33 million in stimulus funds to complete the obligations of Blackrock for the public portion of the project. (You can see this request by going to the Web at www.recovery.ct.gov). The state wants the project completed because it already has the platforms and bridge half-built, so, most likely, the state will grant the town's request.
It's not clear as to who will control this money and/or who will do the work to satisfy these obligations for which Blackrock was always supposed to pay. We can only hope that the state will prescribe strict guidelines for using the funds and the town will have enough sense to not let the money out of their control and to select a contractor whom they can be certain will avoid the failures of the past on this project. Strict scrutiny of the use of these funds by all parties is certainly now in order.
What is clear, however, is that Blackrock will be the only one to get the real benefit of the $33 million, since neither the state nor the town ever had an obligation under the tripartite agreement to perform Blackrock's obligations for the public project. (Wittek certainly has a knack for seeking public funds to finance his private projects. According to the Los Angeles Business journal, Wittek is looking for $61 million in public funds to finance another private project of his in California.)
So, once the town has done this $33 million of work for Blackrock's benefit, Blackrock can just get on with the rest of its commercial project at a very considerable saving.
Maybe this is why Mr. Wittek says, "We also chose to take the course of action with our bank that resulted in foreclosure proceedings." How do you choose foreclosure other than by choosing not to pay your mortgage payments? There must have been some hidden agenda in this maneuver because Wittek then says, "We believe this was in the best long term interest of the project and are confident we can successfully resolve the foreclosure."
Aha! So you intentionally stop paying your mortgage because in the long term you can successfully resolve the foreclosure. Very clever! But how do you do it?
Simple! You just avoid paying the $33 million that you were obligated to pay for work you were responsible to do under the tripartite agreement. Then, you simply sit back and wait until the state and the town have obtained the $33 million in stimulus money and the town has done your work. Then you will have the road land remediated, sparkling new access roads built and a finished train station and depot to service your commercial project free of charge to Blackrock, thus making your property incredibly more valuable.
Then, Blackrock won't have any trouble getting refinancing so it can resolve its foreclosure problem.
And that's how it's done.
Gotta hand it to ya, Blackrock, that's quite a "sting!"
Shame on all of us who have been stung! Shame on the Obama administration! Shame on our state! Shame on our town! And especially, shame on us poor innocent taxpayers who always wind up footing the bill.
But, wait a minute! Before we close the book on this sting, nobody has told us whether or not Blackrock will be obligated to repay this $33 million in the future. We have read that this was the basis on which the banks and the auto makers were receiving their stimulus funds. If Blackrock is expected to repay the state and town, what steps are being taken to assure that obligation?
We always believed that when someone breached their agreement with you and that breach caused you damages, that you had a right to sue them to recover what their breach caused you. Well, it certainly looks as though Blackrock has breached the agreement by not fulfilling its obligations under the agreement and that this breach is causing us $33 million in damages we have to come up with. Mr. Wittek even admits Blackrock is unable to fulfill its obligations. So, why are the state and the town not attaching Blackrock's property or getting Blackrock to sign an agreement to pay back whatever is spent to fulfill its obligations, since Blackrock's property will be extremely more valuable once it resolves its foreclosure at our expense?
Shouldn't our town attorney, Mr. Saxl, already be taking steps to tie up Blackrock's property? Regardless of what happens with the stimulus money, Blackrock's breach has already caused us very provable damages because the town inevitably has to do its work.
Instead, Mr. Saxl has only said " it may be possible to recoup some of the stimulus money spent on the public part of the project " but that depended on some other questions. Well, Mr. Saxl, now is the time to figure out the answers to those questions before the money is spent and it's too late to get any of it back!
If Blackrock will not be expected to repay the $33 million, then Blackrock getting off the hook like that will rank up there as one of the greatest stings of all time. You can picture Blackrock completing its commercial project someday, and just sitting there raking in the big profits, while we poor taxpayers are still struggling to pay off the $33 million debt that Blackrock just dumped in our laps.
What adjective could we possibly apply to describe this damnable scenario?
"Disgraceful?" "Shameful?" "Deplorable?" "Scandalous?" "Outrageous?" All of these seem woefully inadequate to describe what is being foisted on us taxpayers.
We're at a loss for words.
This letter was signed by Edward J. Bateson III, Alexis P. Harrison, Jeanne Konecny, Philip Meiman, Pam Ritter, Les Schaffer, Joy Shaw and Jane Talamini.
A close reading of the recent statements by Mr. Kurt Wittek, managing director of Blackrock Realty, LLC and developer of the Fairfield Metro Center, in the March 6 Connecticut Post and March 11 Fairfield Citizen reveals some very telling facts.
Consider the following:
Mr. Wittek repeats, in glowing terms, his prediction that a completed FMC will be a great boon to the area a claim he's been making for six years, while very little progress has been made on the project.
However, Wittek claims that Blackrock doesn't have the funds to fulfill its obligations under the tripartite agreement with the state and the town to continue building the project right now. Yet, Wittek has never explained why BRR could not have fulfilled some of its obligations since 2006, when it had close to $14 million in funds available to it.
The unfulfilled obligations of Blackrock for the public portion of the project of which Mr. Wittek speaks are:
1. to remediate the land under and build the access roads;
2. to remediate the commuter waiting area; and
3. to provide a $500,000 letter of credit to assure building the train depot.
So how does Mr. Wittek intend to fulfill these obligations, if the FMC is going to be completed as he predicts?
Very simple! Just do nothing and let the town get stimulus funds to do it for you!
The Town of Fairfield has requested $33 million in stimulus funds to complete the obligations of Blackrock for the public portion of the project. (You can see this request by going to the Web at www.recovery.ct.gov). The state wants the project completed because it already has the platforms and bridge half-built, so, most likely, the state will grant the town's request.
It's not clear as to who will control this money and/or who will do the work to satisfy these obligations for which Blackrock was always supposed to pay. We can only hope that the state will prescribe strict guidelines for using the funds and the town will have enough sense to not let the money out of their control and to select a contractor whom they can be certain will avoid the failures of the past on this project. Strict scrutiny of the use of these funds by all parties is certainly now in order.
What is clear, however, is that Blackrock will be the only one to get the real benefit of the $33 million, since neither the state nor the town ever had an obligation under the tripartite agreement to perform Blackrock's obligations for the public project. (Wittek certainly has a knack for seeking public funds to finance his private projects. According to the Los Angeles Business journal, Wittek is looking for $61 million in public funds to finance another private project of his in California.)
So, once the town has done this $33 million of work for Blackrock's benefit, Blackrock can just get on with the rest of its commercial project at a very considerable saving.
Maybe this is why Mr. Wittek says, "We also chose to take the course of action with our bank that resulted in foreclosure proceedings." How do you choose foreclosure other than by choosing not to pay your mortgage payments? There must have been some hidden agenda in this maneuver because Wittek then says, "We believe this was in the best long term interest of the project and are confident we can successfully resolve the foreclosure."
Aha! So you intentionally stop paying your mortgage because in the long term you can successfully resolve the foreclosure. Very clever! But how do you do it?
Simple! You just avoid paying the $33 million that you were obligated to pay for work you were responsible to do under the tripartite agreement. Then, you simply sit back and wait until the state and the town have obtained the $33 million in stimulus money and the town has done your work. Then you will have the road land remediated, sparkling new access roads built and a finished train station and depot to service your commercial project free of charge to Blackrock, thus making your property incredibly more valuable.
Then, Blackrock won't have any trouble getting refinancing so it can resolve its foreclosure problem.
And that's how it's done.
Gotta hand it to ya, Blackrock, that's quite a "sting!"
Shame on all of us who have been stung! Shame on the Obama administration! Shame on our state! Shame on our town! And especially, shame on us poor innocent taxpayers who always wind up footing the bill.
But, wait a minute! Before we close the book on this sting, nobody has told us whether or not Blackrock will be obligated to repay this $33 million in the future. We have read that this was the basis on which the banks and the auto makers were receiving their stimulus funds. If Blackrock is expected to repay the state and town, what steps are being taken to assure that obligation?
We always believed that when someone breached their agreement with you and that breach caused you damages, that you had a right to sue them to recover what their breach caused you. Well, it certainly looks as though Blackrock has breached the agreement by not fulfilling its obligations under the agreement and that this breach is causing us $33 million in damages we have to come up with. Mr. Wittek even admits Blackrock is unable to fulfill its obligations. So, why are the state and the town not attaching Blackrock's property or getting Blackrock to sign an agreement to pay back whatever is spent to fulfill its obligations, since Blackrock's property will be extremely more valuable once it resolves its foreclosure at our expense?
Shouldn't our town attorney, Mr. Saxl, already be taking steps to tie up Blackrock's property? Regardless of what happens with the stimulus money, Blackrock's breach has already caused us very provable damages because the town inevitably has to do its work.
Instead, Mr. Saxl has only said " it may be possible to recoup some of the stimulus money spent on the public part of the project " but that depended on some other questions. Well, Mr. Saxl, now is the time to figure out the answers to those questions before the money is spent and it's too late to get any of it back!
If Blackrock will not be expected to repay the $33 million, then Blackrock getting off the hook like that will rank up there as one of the greatest stings of all time. You can picture Blackrock completing its commercial project someday, and just sitting there raking in the big profits, while we poor taxpayers are still struggling to pay off the $33 million debt that Blackrock just dumped in our laps.
What adjective could we possibly apply to describe this damnable scenario?
"Disgraceful?" "Shameful?" "Deplorable?" "Scandalous?" "Outrageous?" All of these seem woefully inadequate to describe what is being foisted on us taxpayers.
We're at a loss for words.
This letter was signed by Edward J. Bateson III, Alexis P. Harrison, Jeanne Konecny, Philip Meiman, Pam Ritter, Les Schaffer, Joy Shaw and Jane Talamini.
Sunday, March 15, 2009
Truth Beyond Belief
In his Rebuttal article last week, our First Selectman seems to have invented his own definition of “truth.”
He refers to “erroneous allegations regarding the train station project” which he claims are being made “without a shred of evidence.” Come now, Mr. Flatto, you know very well that every allegation that has been made is supported by documentary evidence, almost all of which has come from the Town’s own files. Since those documents are clear and unambiguous the allegations based on them are not erroneous but precisely accurate.
As is his well known habit, Mr. Flatto goes on to indulge himself in self-praise even so far as to characterize his every action on the train station project as having had “noble” goals. Well, let’s look at those noble actions.
Mr. Flatto says he stopped “a mega-million lawsuit from being filed against the Town alleging unfair practices by Town employees and civil rights discrimination against a property owner.” No doubt he is referring to the December 11, 2007 letter from Attorney John Fallon on behalf of Blackrock Realty to Town Attorney, Richard Saxl. That letter made no mention whatsoever of “civil rights discrimination.” Furthermore, the letter was apparently never considered a serious claim since there is no evidence that Mr. Saxl ever responded to the letter or that Mr. Fallon ever asked for a response. If it were such a serious claim it would have been pursued but it was not. Nor was any attempt ever made by Mr. Flatto or Mr. Saxl to investigate the claims being made by asking the Town employees referred to in the letter for their expert opinion as to their merits. That would have been the way to protect the Town’s interests rather than just accept the word of the developer and remove the employees from the project.
Mr. Flatto, this “mega million lawsuit” was never going forward and your claim to have stopped it is exaggerated beyond belief. Furthermore, the actions taken by you in this instance were far from “noble.”
Other noble actions claimed by Mr. Flatto were “mediating and adjudicating conflicts and remedy delays.” How he can claim to have mediated and adjudicated the conflict between Blackrock Realty and the Town employees involved without giving the employees a chance to tell their side of the story is beyond me. And, what delay in the project has Mr. Flatto remedied? The removal of the Town employees in December certainly didn’t remedy any delay since absolutely nothing has been done on the project since then. And this project has had delays for over five years before that none of which were remedied by Mr. Flatto.
Finally, Mr. Flatto takes credit for helping to coordinate and implement the train station project. Well, let’s look at the results of his efforts.
Rumors are rampant that Blackrock Realty may be unable to complete the project because of a lack of funds. Their inactivity for so long lends credence to those rumors. What happens if this turns out to be true?
We are told by Mr. Flatto’s surrogate, Mark Barnhart, that “Site work . . . began one month ago.” He said, “They are underway.” But “they” is really the state DOT not Blackrock Realty because he then tells us “Blackrock Realty is looking at mid-September to begin construction….” The question is where and when did he get this information? If he just recently got it directly from Blackrock, we should expect activity in a couple of weeks. But, if this is just old information that hasn’t been made current, and nothing happens n September, then the question will be whether we were just being set up for feigned surprise by the administration to excuse themselves for not getting hard answers to current serious questions directly from Blackrock.
If the final answer is that Blackrock does not intend to go forward with Phase One at this time, then there are other hard questions that need answers.
The benefits to the Town under the infamous Tripartite Agreement signed in 2003 and paid for by the Town were supposed to be the following to be done by Blackrock:
1. the cleanup of some 100,000 cubic yards of contaminated soil by dumping it in a large hole under the parking lot to be constructed by the Town on land it has already bought from Blackrock for $3,750,000 and covering it with a plastic membrane (but no membrane underneath to prevent contaminants from leaching below);
2. building the train depot and commuter waiting area; and
3. building the access road to reach the parking lot, depot and waiting area.
What Mr. Barnhart does not tell you, however, is that Blackrock can elect not to build the depot; that it was to inform the Town of its intention to do it or not some time ago; that it was supposed to put up a $500,000 letter of credit which the Town could use to build the depot if Blackrock decided not to do so. That letter of credit was based on 2003 prices which have since escalated quite a bit. (The DOT’s cost alone has escalated by $10,700,000.)
Blackrock has the same option to decide if it wants to build the commuter waiting area. If it doesn’t it’s supposed to convey that land to the state. It’s not clear from the Agreement if the DOT would then have to build it.
If Blackrock does not go forward and build the access road, the Town would be left with a parking lot that could not be reached. The Town would then have to either buy or condemn the land from Blackrock and incur the expense of building the road itself.
Finally, what happens to the plan to move the contaminated soil? Does the Town just forget about it and build the parking lot without the soil’s removal? Blackrock estimated the cost of the removal at $13,000,000 and was supposed to put up bonds and/or letters of credit to guarantee the performance of its obligations for remediation work on the project. Has it done so?
All of these questions, if not answered sooner by Blackrock, should come to a head in September. Mr. Flatto should know this better than anyone. So, if Blackrock does not go forward in September any feigned surprise by those in his administration won’t work.
For Mr. Flatto’s and Mr. Barhardt’s sake, as well as that of the Town, let’s hope we see Blackrock’s people hard at work on the site in September.
So much for Mr. Flatto’s claimed efforts in coordinating and implementing the project.
In closing, if these so-called noble actions of Mr. Flatto represent his version of the truth, then for me it is beyond belief.
In his Rebuttal article last week, our First Selectman seems to have invented his own definition of “truth.”
He refers to “erroneous allegations regarding the train station project” which he claims are being made “without a shred of evidence.” Come now, Mr. Flatto, you know very well that every allegation that has been made is supported by documentary evidence, almost all of which has come from the Town’s own files. Since those documents are clear and unambiguous the allegations based on them are not erroneous but precisely accurate.
As is his well known habit, Mr. Flatto goes on to indulge himself in self-praise even so far as to characterize his every action on the train station project as having had “noble” goals. Well, let’s look at those noble actions.
Mr. Flatto says he stopped “a mega-million lawsuit from being filed against the Town alleging unfair practices by Town employees and civil rights discrimination against a property owner.” No doubt he is referring to the December 11, 2007 letter from Attorney John Fallon on behalf of Blackrock Realty to Town Attorney, Richard Saxl. That letter made no mention whatsoever of “civil rights discrimination.” Furthermore, the letter was apparently never considered a serious claim since there is no evidence that Mr. Saxl ever responded to the letter or that Mr. Fallon ever asked for a response. If it were such a serious claim it would have been pursued but it was not. Nor was any attempt ever made by Mr. Flatto or Mr. Saxl to investigate the claims being made by asking the Town employees referred to in the letter for their expert opinion as to their merits. That would have been the way to protect the Town’s interests rather than just accept the word of the developer and remove the employees from the project.
Mr. Flatto, this “mega million lawsuit” was never going forward and your claim to have stopped it is exaggerated beyond belief. Furthermore, the actions taken by you in this instance were far from “noble.”
Other noble actions claimed by Mr. Flatto were “mediating and adjudicating conflicts and remedy delays.” How he can claim to have mediated and adjudicated the conflict between Blackrock Realty and the Town employees involved without giving the employees a chance to tell their side of the story is beyond me. And, what delay in the project has Mr. Flatto remedied? The removal of the Town employees in December certainly didn’t remedy any delay since absolutely nothing has been done on the project since then. And this project has had delays for over five years before that none of which were remedied by Mr. Flatto.
Finally, Mr. Flatto takes credit for helping to coordinate and implement the train station project. Well, let’s look at the results of his efforts.
Rumors are rampant that Blackrock Realty may be unable to complete the project because of a lack of funds. Their inactivity for so long lends credence to those rumors. What happens if this turns out to be true?
We are told by Mr. Flatto’s surrogate, Mark Barnhart, that “Site work . . . began one month ago.” He said, “They are underway.” But “they” is really the state DOT not Blackrock Realty because he then tells us “Blackrock Realty is looking at mid-September to begin construction….” The question is where and when did he get this information? If he just recently got it directly from Blackrock, we should expect activity in a couple of weeks. But, if this is just old information that hasn’t been made current, and nothing happens n September, then the question will be whether we were just being set up for feigned surprise by the administration to excuse themselves for not getting hard answers to current serious questions directly from Blackrock.
If the final answer is that Blackrock does not intend to go forward with Phase One at this time, then there are other hard questions that need answers.
The benefits to the Town under the infamous Tripartite Agreement signed in 2003 and paid for by the Town were supposed to be the following to be done by Blackrock:
1. the cleanup of some 100,000 cubic yards of contaminated soil by dumping it in a large hole under the parking lot to be constructed by the Town on land it has already bought from Blackrock for $3,750,000 and covering it with a plastic membrane (but no membrane underneath to prevent contaminants from leaching below);
2. building the train depot and commuter waiting area; and
3. building the access road to reach the parking lot, depot and waiting area.
What Mr. Barnhart does not tell you, however, is that Blackrock can elect not to build the depot; that it was to inform the Town of its intention to do it or not some time ago; that it was supposed to put up a $500,000 letter of credit which the Town could use to build the depot if Blackrock decided not to do so. That letter of credit was based on 2003 prices which have since escalated quite a bit. (The DOT’s cost alone has escalated by $10,700,000.)
Blackrock has the same option to decide if it wants to build the commuter waiting area. If it doesn’t it’s supposed to convey that land to the state. It’s not clear from the Agreement if the DOT would then have to build it.
If Blackrock does not go forward and build the access road, the Town would be left with a parking lot that could not be reached. The Town would then have to either buy or condemn the land from Blackrock and incur the expense of building the road itself.
Finally, what happens to the plan to move the contaminated soil? Does the Town just forget about it and build the parking lot without the soil’s removal? Blackrock estimated the cost of the removal at $13,000,000 and was supposed to put up bonds and/or letters of credit to guarantee the performance of its obligations for remediation work on the project. Has it done so?
All of these questions, if not answered sooner by Blackrock, should come to a head in September. Mr. Flatto should know this better than anyone. So, if Blackrock does not go forward in September any feigned surprise by those in his administration won’t work.
For Mr. Flatto’s and Mr. Barhardt’s sake, as well as that of the Town, let’s hope we see Blackrock’s people hard at work on the site in September.
So much for Mr. Flatto’s claimed efforts in coordinating and implementing the project.
In closing, if these so-called noble actions of Mr. Flatto represent his version of the truth, then for me it is beyond belief.
Saturday, November 22, 2008
To Readers of this blog
I am not one of the complainants in the ethics complaint filed against Fairfield Ct First Selectman Kenneth A. Flatto, Town Attorney Richard Saxl and the Conservation Commission. I am simply a citizen of Fairfield who admires the complainants for their courage to bring the complaint in the first place and then to display the steadfastness with which they are pursuing their cause.
Its no easy task to take on the power of city hall with nowhere near the resources Town officials have at their disposal. But these people apparently love their Town enough to stand up and fight against what they see as a serious injustice.
Our president-elect has wisely pointed out that the strength of our government is built from the bottom up. These few courageous people have taken heed and are doing their best to do just that right here in little Fairfield by refusing to bend in their struggle to make our public officials accountable for their abuse of the authority we have entrusted to them. They are the true citizens of our Town and we should emulate them.
In support of their efforts I am posting their findings and the documents they have filed with the Ethics Commission. If in reading these documents you discover any ommissions or needed corrections please let me know.
I am not one of the complainants in the ethics complaint filed against Fairfield Ct First Selectman Kenneth A. Flatto, Town Attorney Richard Saxl and the Conservation Commission. I am simply a citizen of Fairfield who admires the complainants for their courage to bring the complaint in the first place and then to display the steadfastness with which they are pursuing their cause.
Its no easy task to take on the power of city hall with nowhere near the resources Town officials have at their disposal. But these people apparently love their Town enough to stand up and fight against what they see as a serious injustice.
Our president-elect has wisely pointed out that the strength of our government is built from the bottom up. These few courageous people have taken heed and are doing their best to do just that right here in little Fairfield by refusing to bend in their struggle to make our public officials accountable for their abuse of the authority we have entrusted to them. They are the true citizens of our Town and we should emulate them.
In support of their efforts I am posting their findings and the documents they have filed with the Ethics Commission. If in reading these documents you discover any ommissions or needed corrections please let me know.
Monday, November 17, 2008
MOTION TO REOPEN AND RECONSIDER THE FINDING OF NO PROBABLE CAUSE BY THE FAIRFIELD ETHICS COMMISSION DATED NOVEMBER 4, 2008.
The complainants respectfully move that the Ethics Commission reopen and reconsider its decision (hereafter “the Decision”) of November 4, 2008 that their complaints do not establish probable cause for the reasons hereinafter set forth.
PRELIMINARY STATEMENT
The accepted standard of review for probable cause investigations requires that the allegations in a complaint, as well as all reasonable inferences that can be drawn from them are assumed to be true, and are to be viewed in the light most favorable to the complainants. In addition, all reliably probative evidence, including that which would be unfavorable to the complainants’ claim, is to be considered. This is basically the same standard that the Decision of the Commission claims to have adopted.
The complainants will show that, while the Decision pays lip service to this standard, its probable cause review has failed egregiously to live up to that standard. Instead, its decision has proceeded in exactly the opposite manner, i.e., a manner that would be expected of an advocate for the parties named in the complaint. As a result, the complainants have been denied the assumptions and inferences to which they are entitled, and their allegations, rather than being viewed in the light most favorable to them, as required under the accepted standard for probable cause review, have been misrepresented and/or totally omitted. These are serious claims that the complainants would rather not have made but feel constrained to do so because of the dangerous precedent not making them would set for our town government.
The evidence in support of these claims is as follows:
1.The Decision grossly misrepresented the complainants’ position concerning their allegations of Charter violations by the parties named in their complaints.
Explanation:
The complainants respectfully move that the Ethics Commission reopen and reconsider its decision (hereafter “the Decision”) of November 4, 2008 that their complaints do not establish probable cause for the reasons hereinafter set forth.
PRELIMINARY STATEMENT
The accepted standard of review for probable cause investigations requires that the allegations in a complaint, as well as all reasonable inferences that can be drawn from them are assumed to be true, and are to be viewed in the light most favorable to the complainants. In addition, all reliably probative evidence, including that which would be unfavorable to the complainants’ claim, is to be considered. This is basically the same standard that the Decision of the Commission claims to have adopted.
The complainants will show that, while the Decision pays lip service to this standard, its probable cause review has failed egregiously to live up to that standard. Instead, its decision has proceeded in exactly the opposite manner, i.e., a manner that would be expected of an advocate for the parties named in the complaint. As a result, the complainants have been denied the assumptions and inferences to which they are entitled, and their allegations, rather than being viewed in the light most favorable to them, as required under the accepted standard for probable cause review, have been misrepresented and/or totally omitted. These are serious claims that the complainants would rather not have made but feel constrained to do so because of the dangerous precedent not making them would set for our town government.
The evidence in support of these claims is as follows:
1.The Decision grossly misrepresented the complainants’ position concerning their allegations of Charter violations by the parties named in their complaints.
Explanation:
Subsequent to the filing of the original Ethics Complaint, Mr. Saxl filed a Letter of Opinion that challenged only the complainants’ allegations concerning Charter violations by Mr. Flatto but did not address their factual allegations concerning violations of the Standards of Conduct. The complainants were concerned that this situation might mislead the Commission into focusing solely on the allegations of Charter violations that involved legal analysis and not on their allegations of Standards of Conduct violations that involved factual allegations. This was the reason for amending the Ethics Complaint and it is spelled out on page 1 of the Amended Ethics Complaint. On the same page 1, it was clearly and unequivocally stated that it was the intention of the complainants to separate their argument into two parts; one dealing with the violations of the Standards of Conduct and the other dealing with Charter violations.
That the complainants always intended to also pursue the Charter violations they alleged was made perfectly clear by the following statement also at page 1:
“We will, therefore, now proceed to separate our factual basis for the violations of the Standards of Conduct we have alleged from the violations alleged of provisions of the Charter other than the Standards. We will, however, deal with these other violations after concluding our factual argument.” (Emphasis supplied.)
Further, at the end of their factual argument on violations of the Standards of Conduct the following statement was made by the complainants at page 12:
“Therefore, while the claimants remain firm in their positions stated above concerning the ethics violations described, we will now reply to Mr. Saxl’s arguments concerning powers claimed for Mr. Flatto under the Charter as a separate matter from those violations. The claimants believe that the violations inherent in these claims are very serious and also worthy of review by the Ethics Commission because each of them contributed to the special treatment provided to BRR in violation of Section 11.4 of the Standards of Conduct.” (Emphasis supplied.)
This statement was followed by 7 pages of detailed and compelling arguments by the complainants raising serious issues on the subject of Charter violations. Given the clarity of these statements, it would be impossible for any reasonable person to misconstrue the stated intentions of the complainants to mean they did not want those arguments addressed by the Commission.
Nevertheless, the Decision has entirely omitted a consideration of those arguments raised by the complainants and it has done so by means of an unconscionable misrepresentation of the complainants’ position by first taking a partial statement entirely out of context and then adding the word “not” at page 6 of the Decision so that the Commission’s statement read as follows
“The Amended Complaint asks the Ethics Commission to focus on whether a violation of the Standards of Conduct existed and not “whether or not violations of other provisions of the [Town] Charter took place.”
However, the passage quoted by the Commission was part of a full statement that read as follows:
“The Ethics Complaint filed by the complainants on June 13, 2008 is based on the facts alleged therein which the complainants believe prove a course of conduct by the parties named that is in violation of the Standards of Conduct indicated and do not depend in any way on whether or not violations of other provisions of the Charter took place.”
Thus, the Decision has taken this passage out of context and added the word “not” before it to create a sentence that means the complainants did not want the Commission to address its claims of Charter violations. This despite the clear statements made by the complainants on the very same page of the quoted passage as shown above, as well as at page 12, that they were going to pursue those violations in their argument. There was never a statement in the Amended Complaint that could have been interpreted to mean otherwise.
This false statement of the complainants’ position was created by the Commission as the first part of a calculated design to simply eliminate the compelling arguments raised by the complainants concerning Charter violations as well as other serious allegations by them. This calculated design permeated the entire Decision as we will show in the second ground of this motion as well as in the other grounds that follow.
2. The Decision misrepresented the content of Section 10.3D of the Charter by omitting key portions thereof that tended to prove the complainants’ allegations of Charter violations by the parties named in the complaints.
Explanation:
Section 10.3D in its entirety reads as follows:
“Director and other employees or consultants. The Commission shall appoint a Director with the approval of the First Selectman. The Commission shall have the power to engage such employees or consultants as it requires to carry out its duties, including a wetlands administrator and assistants who, subject to the general supervision of the Director, shall enforce all laws, ordinances and regulations relating to matters over which it has jurisdiction and who shall have such other duties as the Commission or the Director may prescribe.” (Emphasis supplied.)
These highlighted words were essential to the strong arguments presented by the complainants to refute the arguments made by Saxl that Flatto had the power to remove Steinke’s authority of general supervision over consultants on the FMC project. The complainants had argued against Saxl’s position on the ground that, since the Director’s authority of general supervision was given to him by the Charter, it was retained by Steinke as long as he remained the Director which he remains to be to this day.
These words were also essential to refute arguments advanced by the Commission in order to justify its other conclusions. If the complainants’ arguments on this issue were correct there would be no justification for any of the Commission’s conclusions. Thus, the significance of those words could not be misunderstood by any reasonable person.
Nevertheless, the Decision, in referring to the terms of Section 10.3D at page 6, omitted these highlighted key words as follows”
“The Conservation Commission also has “the power to engage… consultants…who shall have such…duties as the Commission…may prescribe.” [Section] 10.3D”
Given the significance of these words, their omission from the Decision’s reference cannot be excused as accidental.
The complainants believe that the misrepresentations described in parts 1 and 2 of this motion, taken together, clearly demonstrate a calculated design to simply omit consideration of the compelling arguments advanced by them on Charter violations so that the Commission could adopt Saxl’s argument, as it did at pages 5 and 6, and then go on to make its other conclusions throughout the Decision seemingly without challenge ever having been made by the complainants.
In so doing, the Commission has unjustly denied the complainants the benefits of the assumptions and inferences to which they are entitled, and, rather than view their allegations of Charter violations in the light most favorable to them, the Commission has simply eliminated them as if they did not exist. In so doing, the Commission has shown an indefensible bias in favor of those named in the complaints.
3. By use of the same calculated design, the Commission was then able to completely omit consideration of the complainants’ serious allegations of Charter violations by Saxl.
Explanation:
The complainants had alleged that Saxl had failed to provide necessary legal services to Town officers and commissions as he was required to do by Section 9.3.C(1) of the Charter as well as by Sections 7-101a and 701-b of the state statutes. Under these provisions, Steinke and his Compliance Officer, Annette Jacobson were in effect Saxl’s clients.
The Decision, at page 4, mentions the letter from BRR’s counsel (Exhibit 3) that threatened legal action seeking damages that might be construed to include Steinke and his staff. However, it makes no mention of the complainants’ allegations that Saxl’s failure to notify Steinke and Jacobson of this letter or his failure to notify them of BRR’s protocol demands (Exhibit 1) when his legal services were clearly necessary on their behalf on each occasion, not only violated Section 9.3.C(1) and state statutes, but also provided special treatment to BRR in violation of Section 11.4. By failing to notify Steinke and Jacobson of these events and giving them a chance to respond, Saxl allowed BRR’s threat of legal action to be used in support of Flatto’s action to remove Steinke and Jacobson as Flatto subsequently did.
Following the same calculated design, the Commission has also omitted the complainants’ allegations that Saxl violated Section 11.2D in that he failed to use independence of judgment in the performance of his duties by failing to provide necessary legal services to Steinke and Jacobson.
These allegations are set forth in detail at pages 8 and 9 of the Amended Complaint yet not one word of them is mentioned in the Decision. The complete failure of the Commission to address these allegations in its Decision has unjustly denied the complainants the benefits of the assumptions and inferences to which they were entitled and failed to view them in the light most favorable to them. In so doing, the Commission has again shown an indefensible bias in favor of those named in the complaints.
4. The Decision used conclusions of fact to support its finding without there being reliable probative evidence on the record to support those conclusions, while at the same time it was in possession of reliable probative evidence in documents provided by the complainants that would negate those conclusions.
Explanation:
4. The Decision used conclusions of fact to support its finding without there being reliable probative evidence on the record to support those conclusions, while at the same time it was in possession of reliable probative evidence in documents provided by the complainants that would negate those conclusions.
Explanation:
The Decision repeatedly states conclusions of fact to the effect there was a contentious relationship between the developer, Blackrock Realty LLC (hereafter “BRR”) and Steinke and his staff, e.g.,“relationship broke down”; “conflict deteriorated”; “contentious and unproductive relationship”; “The relationship has been contentious”; “tensions escalated significantly”; “problems and conflicts lingered”; “the worsening relationship”. These conclusions were critical to support the Commission’s position that Flatto’s action in removing Steinke was justified.
However, there is no reliable probative evidence on the record that either Steinke or his staff were at any time being contentious. In fact, Steinke and his staff made it clear in documentary evidence on the record that they were simply doing their job to protect the public interest and were in no way being antagonistic to BRR (Exhibits 4 and 8).
This evidence showed the following: that BRR was a serial violator of Town regulations; that it had been cited for serious violations in 2004 and for the same type of violations in 2007 that Steinke set forth in great detail in Exhibit 4; that it had failed to pay substantial site disturbance fees for 2005 and 2007 in the amount of $32,588.40 and failed to file a performance bond; that on each occasion of these violations Steinke could have started formal enforcement actions which would have been costly and time-consuming for BRR, but instead, as an accommodation to BRR, Steinke offered to treat the violations as “inadvertent” and was willing to provide alternative methods of curing the violations, even though the repeat nature of the violations indicated they were not “inadvertent.” This is strong evidence to refute the implied conclusion adopted in the Decision that Steinke contributed to a contentious relationship.
The Decision makes note of this documentary evidence but once again fails to include the salient point that Steinke was being accommodating to BRR rather than contentious. Instead, at page 4 it characterizes the document as one in which “Steinke articulated his perspective on the conflict with Black Rock.” Steinke never mentioned a conflict with BRR unless the performance of his duty to call attention to clear violations by BRR and long overdue fees and performance bond is to be considered a conflict.
In short, there is no evidence on record of any specific incident in which Steinke or his staff did anything contentious in the performance their duties to protect Town interests and therefore, a conclusion that Steinke and/or his staff were participating in contentiousness with BRR is completely unwarranted.
In the face of this lack of evidence, Saxl and Flatto were scrupulous to avoid making any charge that Steinke or his staff were in fact antagonistic to BRR or in fact were delaying the project unjustly. Instead, they repeatedly relied on the “beliefs” of BRR without consulting Steinke or Jacobson, the Town officers who were being so charged, for a response. The following are examples of this fact which appear at page 4 of Saxl’s Letter of Opinion on record:
“The First Selectman and Town Attorney jointly determined that the actions and decisions by the Conservation Commission staff might have delayed the IWPA permit process to the point of jeopardizing the entire project.”
and, rather than produce specific evidence of such actions and decisions in support of this determination, they offered the following:
“They concluded that the Blackrock Applicant believed that the Conservation Director and staff had an antagonistic approach to project oversight. They also concluded that the Blackrock Applicant believed that Conservation Director and staff had placed unfair burdens on them as well.” (Emphases supplied.)
This outrageous lack of reliable probative evidence on the record to justify Flatto’s action in removing Steinke’s authority of general supervision over consultants engaged by the Conservation Commission was alleged in detail at pages 2 and 3 of the Amended Complaint as was the fact that Steinke was never allowed to defend himself and his staff against such charges.
Nevertheless, the complainants’ allegations concerning this lack of evidence to justify Flatto’s action were never addressed in the Decision because it was at odds with the Commission’s main positions at page 11 of the Decision that
“Special Treatment” permits a person to defend a charge of preferential treatment by showing it was justified.”and at odds with the Commission’s other position on which it also heavily relies at page 11
“Thus, in a situation where one receives some benefit that others do not, the inquiry must focus on whether the municipal actors made the distinction based on a plausible notion of the public interest.”
Had the complainants’ allegations concerning this lack of evidence of contentiousness been addressed, it would have, at the very least, raised probable cause to believe that the action of Flatto in removing Steinke’s authority of general supervision over consultants was neither justified nor based on a plausible notion of the public interest.
The only plausible interest served by Flatto’s action that appears on the record is the private interest of BRR to avoid Steinke’s scrutiny of the project in the performance of his duties to prevent future violations.
Also, the fact that Steinke was now requiring BRR to promptly pay the delinquent fees, file an overdue bond estimate and then the performance bond (Exhibit 4) could have raised a reasonable inference that the real reason for demanding Steinke’s removal was to enable BRR to avoid these requirements. In fact, recent evidence (Exhibit 14 attached) indicates these fees were still unpaid as of January 22, 2008.
By failing to address the complainants’ allegations at pages 2 and 3, the Decision has again denied the complainants’ allegations their right to the benefits of the assumptions and inferences to which they were entitled, failed to view them in the light most favorable to them, and again shown a bias in favor of those named in the complaints.
5. In furtherance of its continuing calculated design the Decision also misrepresented the full import of documentary evidence presented by the complainants to support their allegations of possible collusion between BRR, Flatto, and Saxl by omitting key words in those documents as well as by omitting another key document presented by the complainants, all of which were essential to support those allegations.
Explanation:
a. As to the November 19, 2007 email from BRR to Saxl (Exhibit 1) referred to at page 3 of the Decision:
The Decision fails to include the words
“This note is a follow up to our meeting with Ken Flatto on Tuesday, November 13, 2007.”which appear on the email. The complainants alleged that these words were extremely important to their allegations of possible collusion because they created a reasonable inference that Flatto and possibly Saxl had, at the least, participated in the formulation of BRR’s protocol demanding Steinke’s removal.
The Decision also fails to include the words
“We would expect the following protocol to be placed in effect. This would need to be put in writing, and presented to Steinke/Jacobson….”
The Decision fails to make note of the fact that the four demands of BRR set forth in the protocol, which complainants maintained would be in violation of the Charter, were exactly followed by Flatto in his subsequent letter to Steinke and Jacobson removing their authority from the FMC project. That fact was also important to the complainants’ position on possible collusion because it raised a reasonable inference that Flatto had implemented BRR’s demands without first consulting Steinke for a response to BRR’s charges.
b. The Decision fails to even include the existence of Saxl’s November 19, 2007 email (Exhibit 2) in which he forwarded BRR’s email of the same day to Flatto with the following notation:
b. The Decision fails to even include the existence of Saxl’s November 19, 2007 email (Exhibit 2) in which he forwarded BRR’s email of the same day to Flatto with the following notation:
“f.y.i. I don’t think we said anything about a violation being grounds for removal for cause.” (Emphasis supplied.)
This document was of great importance to support the complainants’ allegations of possible collusion because it enforced the reasonable inference that Flatto and Saxl had participated in the formulation of BRR’s demands.
c. As to the December 14, 2007 email from Saxl to counsel for BRR (Exhibit 5), the Decision stated at page 4
c. As to the December 14, 2007 email from Saxl to counsel for BRR (Exhibit 5), the Decision stated at page 4
“Saxl also stated that Black Rock must ‘have Steinke’s checklist accomplished by Thursday’.” (Emphasis supplied.)
The Decision then placed a single period after the word “Thursday.” This was highly irregular for a legal pleading and grossly misleading, since it indicated that no words were omitted from the quoted phrase, when, in fact, the sentence did not end there. The entire sentence read as follows:
“We need to have Steinke’s checklist accomplished by Thursday or there will be enough egg on everyone’s face to make matters impossible.” (Emphasis supplied.)
As alleged by the complainants, “Thursday” was the day of the next Conservation Commission meeting at which Steinke and Jacobson were to be removed.
These words of Saxl to counsel for BRR were clearly key to the complainants’ allegations of possible collusion since the words
“We need to”would create a reasonable inference that Saxl was in collusion with BRR’s lawyer and the words
“or there will be enough egg on everyone’s face to make matters impossible.”would create a reasonable inference that both parties knew what was to happen on Thursday, i.e., the removal of Steinke and his staff from the FMC project, and that they were concerned that if there were still outstanding violations by BRR on Thursday it would show Steinke was not at fault in raising them and therefore make
“matters”, i.e., his removal, “impossible.”
“Proof by circumstantial evidence is sufficient where rational minds could reasonably and logically draw the necessary inferences.” Puro v. Henry 188 Conn.301,310 (1982).
d. As to Flatto’s December 20, 2007 memorandum to Steinke and Jacobson (Exhibit 7) the Decision fails to take note of the complainants’ allegation that the memorandum carried out precisely the same four items demanded by BRR in its protocol which fact was also relevant to the issue of collusion.
Further, the Decision fails to take note of the complainants’ allegations as to the threat contained in the same document to the effect that
“staff will no longer be covered under the town’s public official’s liability or have town legal representation should any further work, action, or efforts be initiated or conducted by the Conservation Department employees regarding this IWPA application and permit.” (Emphasis supplied.)
Those allegations claimed that this threat was in violation of Sections 7-101(a) and (b) of the Connecticut General Statutes, a copy of which was provided by the complainants. (Exhibit 11)
The Decision’s failures and omissions described in this part 5 glaringly illuminate the same calculated design, assiduously pursued by the Commission in item after item of documentary evidence to avoid addressing the serious issue of possible collusion raised by the complainants.
The Decision’s failures and omissions described in this part 5 glaringly illuminate the same calculated design, assiduously pursued by the Commission in item after item of documentary evidence to avoid addressing the serious issue of possible collusion raised by the complainants.
These failures and omissions of the Decision denied the complainants’ allegations the benefit of the assumptions and inferences to which they were entitled, failed to view them, in the light most favorable to them and again showed an indefensible bias in favor of those named in the complaint.
6. The Decision’s reference to Section 11.2.D omits a key word on which the complainants relied in their allegations concerning a violation of that section.
Explanation:
Section 11.2.D in its entirety reads as follows:
“11.2 No elected or appointed Town officer. . .shall:
D. Engage in any business transaction or activity or have a financial interest, direct or indirect, which is incompatible with the proper discharge of the official duties or which may tend to impair the independence of judgment in the performance of the Town officer’s, employee’s, or member’s official duties.” (Emphasis supplied.)
The Decision refers to Section 11.2.D at page 7 as follows:
“Section 11.2.D prohibits a town official from engaging in business or possessing a financial interest that might influence the exercise of his official judgment.”
Once again, as part of the Commission’s calculated design to omit another serious allegation by the complainants, the Decision has misrepresented the full content of a Charter provision by leaving out the words “or activity,” since the section specifies three, not two, things that would be prohibited if they tended to impair independence of judgment. It is clear from the Section that “or activity” stands alone as a separate category from the other two prohibitions mentioned because no comma appears after “activity.”
This omission was key to the basis of the Decision’s position to support a finding of no probable cause, not only on the complainants’ allegations of a violation of Section 11.2.D but their allegations of a violation of Section 11.4 as well.
The basis of the Decision’s position is that since there is no allegation that Flatto or Saxl had a personal financial interest in the FMC project, Flatto’s action in removing Steinke’s authority of general supervision over consultants engaged by the Conservation Commission for the FMC project was not a “public action to further an interest other than the public interest.” (See Decision at page 8.)
The complainants alleged at page 8 of the Amended Complaint as follows:
“As a party to the agreement to develop the FMC project, Mr. Flatto failed to exercise the independence of judgment required by Section 11.2.D. Rather than recuse himself from any issue between BRR and Mr. Steinke, he chose to display a complete bias in favor of his contractual partner BRR by accepting BRR’s words and beliefs as true without consulting with Mr. Steinke for his position on the accusations made by BRR.”
And at page 11 of the Amended Complaint the complainants alleged as follows:
“While Mr. Flatto and Mr. Saxl do not appear to have a private interest in the FMC project, as the term ‘private’ is commonly understood, they do appear to have an interest, one as a party to the tripartite agreement, and the other as his attorney, that leads to their being overly inclined to accommodate the project’s operations. This interest has, and can in the future, tend to influence their judgment in ways that conflict with the public interest, exactly as has happened in this case.”
These allegations are certainly adequate to describe an “activity” that may tend to impair the independence of judgment in the performance of a Town officer’s official duties. Further, Flatto’s participation in the tripartite agreement would be enough to qualify as a “business transaction” since Section 11.2.D does not require that the “business transaction” it refers to must also include a financial interest. Having a financial interest is a separate category of prohibition under Section 11.2.D
To avoid addressing the complainants’ allegations on this issue, the Commission defends its truncated version of Section 11.2.D with a footnote at page 7 of the Decision as follows:
“Instead, the Complaints ask the Ethics Commission to construe the section’s language more broadly than a plain reading of the section would allow. The complainants point to no authority supporting their request and we therefore decline the complainant’s invitation.
It is clear that the authority to support the complainants’ position on this issue is Section 11.2.D of the Charter itself. The complainants have not construed “the section’s language more broadly than a plain reading of the section would allow.” Conversely, however, the Commission has intentionally construed the provisions of the section less than their plain language would allow in order to omit the complete allegations of the complainants.
The complainants submit that their allegations, and the evidence they have produced on the record to support them as described throughout this Motion are more than adequate to raise probable cause that the only real interest that was served by Flatto’s action was the private interest of the developer, BRR to avoid the efforts of Conservation Director Steinke to properly perform his duties to protect the Town’s environmental interests. Those efforts of Director Steinke served a real public interest. On the other hand, there is no hard evidence on the record that Flatto’s action was justified by any improper conduct on the part of Steinke. In the absence of such evidence, there is no showing on the record that Flatto’s action served any legitimate public interest.
7. Finally, the Commission has omitted any consideration of the complainants’ position that all of the conduct of the parties named in the complaints as alleged by them at page 11 of the Amended Complaint was contrary to the general policy set forth in Section 11.1 of the Standards of Conduct.
Explanation:
Section 11.1 of the Standards of Conduct provides
The complainants submit that their allegations, and the evidence they have produced on the record to support them as described throughout this Motion are more than adequate to raise probable cause that the only real interest that was served by Flatto’s action was the private interest of the developer, BRR to avoid the efforts of Conservation Director Steinke to properly perform his duties to protect the Town’s environmental interests. Those efforts of Director Steinke served a real public interest. On the other hand, there is no hard evidence on the record that Flatto’s action was justified by any improper conduct on the part of Steinke. In the absence of such evidence, there is no showing on the record that Flatto’s action served any legitimate public interest.
7. Finally, the Commission has omitted any consideration of the complainants’ position that all of the conduct of the parties named in the complaints as alleged by them at page 11 of the Amended Complaint was contrary to the general policy set forth in Section 11.1 of the Standards of Conduct.
Explanation:
Section 11.1 of the Standards of Conduct provides
“Section 11.1. Declaration of policy.
Elected and appointed Town officers, RTM members, members of boards, commissions, authorities, and committees, and all employees of the Town shall demonstrate by their example the highest standards of ethical conduct, to the end that the public may justifiably have trust and confidence in the integrity of government. As agents of public purpose, they hold their offices or positions for the benefit of the public, shall recognize that the public interest is their primary concern, and shall faithfully discharge the duties of their offices regardless of personal considerations.
The complainants submit that they have presented an overwhelming preponderance of evidence in their complaints and in this Motion to show that this important policy has not been followed by the parties named in their complaints nor by this Commission in the conduct of its probable cause investigation.
CONCLUSIONS
CONCLUSIONS
1. Section 10.B (2) of the Charter requires the Commission to conduct a complete investigation to determine probable cause according to the accepted standards required for such investigations, i.e., that all of the complainants’ allegations as well as the reasonable inferences that can be drawn from them are assumed to be true and are to be viewed by the Commission in the light most favorable to the complainants.
2. The complainants submit that they have presented substantial credible evidence in this Motion of omissions, failures and misrepresentations relative to their allegations that show the Commission has failed egregiously to apply the accepted standards for probable cause investigations described in paragraph 1. In so doing, the obligation of the Commission to perform its duty as prescribed by Section 10.B (2) has not yet been fully satisfied.
3. The complainants submit that it is therefore incumbent on the Commission to reopen and reconsider its Decision in order to rectify the omissions, failures and misrepresentations described in this Motion in a manner that will provide the complainants with the benefits to which they are entitled in a probable cause investigation as set forth in paragraph 1 in order to complete the Commission’s obligations under Section 10.B (2). Unless and until that is done, we submit that the Commission’s determination of no probable cause must be deemed fatally flawed, incomplete and seriously biased in favor of the parties named in the complaints.
4. The complainants submit that if the Commission is unwilling to complete its obligations under Section 10.B(2) by reopening and reconsidering its Decision as set forth in paragraph 3, the members of this Commission should recuse themselves from further involvement with the complaints filed on June 13 and June 23, 2008 so as to enable a new Commission to be appointed by the members of the Board of Selectmen, other than Mr. Flatto since he is a party named in the complaints, in order to complete the unfinished probable cause investigation of the allegations in those complaints.
Wherefore, the complainants respectfully request that this Motion be granted.
This Motion is dated and filed in the _________________________
Fairfield Town Clerk’s Office on George R. Bisacca Attorney for
November 17, 2008 the Complainants
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