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.

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:

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:

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:

“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

“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.

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

“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

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

AMENDED ETHICS COMPLAINT FOR CLARIFICATION


EXPLANATORY NOTE: This Amended Ethics Complaint is being submitted on behalf of the complainants in the Ethics Complaint dated June 11, 2008, which was filed with the Fairfield Town Clerk on June 13, 2008. All references to “Exhibits” are to those Exhibits attached to the Ethics Complaint dated June 11, 2008. Also, any use of italics is by emphasis supplied by the writer.

In our Ethics complaint, we stated certain facts to prove the ethics violations by the parties named, which the claimants alleged to have taken place. We went on to state further that this unethical conduct by them was also in violation of certain provisions of the Charter other than those in the Standards of Conduct.

Mr. Saxl has since filed a Letter of Opinion that only challenges our position concerning violations by Mr. Flatto, of Charter provisions other than the Standards of Conduct. We were concerned that our inclusion of that position in our Ethics Complaint, together with Mr. Saxl’s Opinion, might mislead the Ethics Commission into focusing on those violations when they should be considered separately from the factual allegations we alleged. A copy of his opinion is attached.

Accordingly, we would like to clarify our position so that our Ethics Complaint is not misunderstood.

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, it is our position that even if we assume (which we do not admit), for the sake of argument, that Mr. Flatto had the powers he claims, his conduct and that of those who aided and abetted it would still be in violation of the Standards of Conduct indicated. Those Standards are applicable to the manner in which any and all governmental powers claimed by our elected and appointed officials are exercised and they are subject to no other interpretation.

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, still deal with these other violations after concluding our factual argument.


I. The Violations of the Standards of Conduct Based on Factual History

The Facts and History:

First, we address the facts set forth by Mr. Saxl as justification for Mr. Flatto’s action in removing the Conservation Director Thomas Steinke (the Director) and his staff from the Fairfield Metro Center (FMC) project. We submit that these facts, even standing alone, would establish a prima facie violation of Section 11.4 of the Standards of Conduct. That section prohibits the use of an official position to grant favorable treatment to any person that is not available to any other person. Further, we submit that this prima facie violation is made conclusive by other pertinent facts, not included by Mr. Saxl, which we will supply.

At the outset, Mr. Saxl points out that the initial engagement of Redniss & Meade in April of 2007 was upon the recommendation of Mr. Steinke. This allegation is true, but irrelevant to the issue before us, since, as Mr. Saxl well knows, their initial engagement required them to be subject to the general supervision of the Director in the usual manner. (See Exhibit 12.)

More to the point, let us examine the factual basis Mr. Flatto offers to justify his removal of the Director.

Nowhere does Mr. Saxl’s opinion describe any specific actions of Mr. Steinke and/or his staff that he relies on to justify Mr. Flatto’s actions. Rather we are told that

“certain… actions of the Conservation Director and staff might be construed as unnecessarily delaying…the project”;

“the First Selectman had been repeatedly informed by…Black Rock Realty LLC that such…actions were, according to Blackrkock , causing it to lose time…”

“the First Selectman conducted a thorough review prior to taking . . . [his] actions. He consulted with the Town Attorney and the Board of Selectmen…”

“The First Selectman and Town Attorney jointly determined that the actions might have delayed the IWPA permit process to the point of jeopardizing the entire project.”

“They concluded that the Blackrock applicant believed that the Director and staff had an antagonistic approach to project oversight.”

“They also concluded that the Blackrock applicant believed that the …Director and staff had placed unfair burdens on them as well.”

Apparently, Mr. Flatto and Mr. Saxl were willing to take everything that BRR said or believed as the unvarnished truth, rather than confer with the Town’s own Conservation Director and staff, who were charged with protecting the Town’s interests, for a response to the claims made by Blackrock Realty LLC (BRR). Their failure to do so, by itself, amounts to favorable treatment to BRR in violation of Section 11.4 of the Standards of Conduct.

Why then, do we not see anywhere in this recitation of facts any input from the Director and staff on this issue? Is it because there was none?

Quite the contrary, there are missing facts, well known to Mr. Saxl, which his Opinion has conveniently chosen to ignore.

On December 14, 2007, Mr. Steinke forwarded a detailed analysis of significant violations by BRR on the FMC project to Mr. Saxl. These violations were similar to those that have occurred throughout BRR’s history on the project. (See Exhibit 4) Was Mr. Steinke’s attitude “antagonistic” in reporting these violations? Just the opposite. As he had done for past BRR violations, Mr. Steinke offered an alternative to a costly and time delaying enforcement procedure, in order to effect compliance and, at the same time, accommodate BRR’s desire to return to work as soon as possible. Nevertheless, despite the fact that this evidence was available and clearly contradicted BRR’s claims, Mr. Flatto chose to ignore it and proceeded to satisfy BRR’s complaints by removing Mr. Steinke and his staff from any involvement with the project on December 20, 2007.

While Mr. Flatto contends that Mr. Steinke and his staff were not removed from the project, but rather “reassigned to other duties,” this “spin” on the real facts is easily exposed for exactly what it was. As Mr. Saxl indicates, Redniss & Meade was first engaged in April of 2007 and, at that time, was subject to the general supervision of Mr. Steinke as required by the Charter (See Exhibit 12.). The purpose of engaging this consultant was for it to be of assistance to Mr. Steinke in monitoring the FMC project, but always under the supervision of Mr. Steinke.

On December 20, 2007, when Mr. Flatto told Mr. Steinke and his staff that they were no longer to be involved on the FMC project, but to be assigned to other duties, there were no duties, other than those they were already performing, to which they could be assigned. Thus, the only change that happened was to remove the general supervision authority of Mr. Steinke over all consultants, as granted to him by the Charter, and allow Redniss & Meade to monitor the FMC project without his supervision. This left the members of the Commission without the benefit of Mr. Steinke’s technical expertise when they were required to pass on the reports of Redniss & Meade. This completely untenable situation was further exacerbated when, in March of 2008, Redniss & Meade was given full authority to act for the Commission, while being paid by BRR to monitor BRR, without supervision by the Town’s technical expert, Mr. Steinke.

In short, “reassignment” is a misleading misnomer for what actually happened, namely, the removal of Mr. Steinke’s Charter authority to protect the Town’s interest by supervising all consultants engaged by the Commission. This was done to provide special
treatment to BRR. The issue of whether or not Mr. Flatto had the power to take this action is fully dealt with in the second portion of this Amended Complaint.

There are more facts that indicate a pattern of submitting to the demands of BRR
without consulting with the person accused, the Town’s own Conservation Director for a response, and without even considering his detailed analyses, all of which was done to provide special treatment to BRR

On November 13, 2007 Mr. Flatto met with Aaron Stauber of Black Rock Realty LLC (BRR) to discuss BRR’s complaints. Following this meeting, on November 19, 2007 Mr. Stauber sent a “protocol” to Mr. Saxl in which BRR demanded that Mr. Steinke and his staff be removed and have “absolutely nothing further to do with the FMC Project” and “be forbidden to even offer their recommendations….” BRR also demanded that this protocol be put in writing and delivered to Mr. Steinke and his staff with the understanding that if they violated the protocol it would be ground for their removal with “cause.” Further, BRR demanded that a “consultant” be hired to replace Mr. Steinke and his staff on the FMC project. If these demands were not met, BRR threatened to stop work on the project. (See Exhibit 1.)

There is compelling evidence that this “protocol” was the beginning of a collusive effort between BRR, Mr. Saxl and Mr. Flatto to get rid of Mr. Steinke and his staff from any involvement on the FMC project.

On the same day that he received the protocol from BRR, November 19, Mr. Saxl forwarded the protocol to Mr. Flatto with the following notation:

“f.y.i. I don’t think we said anything about a violation being grounds for a removal for cause.” (See Exhibit 2)

This is compelling evidence that Mr. Saxl and Mr. Flatto had agreed with BRR on the other terms of the protocol, or at least had participated in its formulation, and that, they were, therefore, in collusion with BRR for the purpose of removing Mr. Steinke and his staff from any involvement in the FMC project.

To our knowledge, neither Mr. Saxl nor Mr. Flatto ever told Mr. Steinke of their receipt of this protocol message.

By letter to Mr. Saxl dated December 11, 2007, the BRR attorney Mr. John Fallon alleged that unnamed Town agents were causing “unnecessary delays” with regard to BRR’s efforts to obtain a building permit. Mr. Fallon claimed that this was in violation of the tripartite agreement and therefore BRR “will take appropriate legal measures” and “as necessary, seek reimbursement for all damages sustained.” The letter did not offer any specific actions of the Town agents that were the basis of his claim. (See Exhibit 3.)

To our knowledge, Mr. Saxl never told Mr. Steinke of his receipt of this letter, even though it contained a threat to sue for damages that might involve Mr. Steinke. Nor did Mr. Saxl ever ask Mr. Steinke to respond to Mr. Fallon’s claims. Nor do we know of any evidence suggesting that Mr. Saxl ever even responded to Mr. Fallon’s letter. A lack of response to such a letter would imply that neither Mr. Fallon nor Mr. Saxl was expecting one to be forthcoming, perhaps for obvious reasons.

On December 14, 2007, the same day he received Mr. Steinke’s detailed analysis of BRR violations and his willingness to accommodate BRR as described above, Mr. Saxl emailed Mr. Steinke’s analysis to Mr. Fallon. (See Exhibit 5) This email contained the following statement:

“We need to have Steinke’s checklist accomplished by Thursday, or there will be enough egg on everyone’s face to make matters impossible.”

The next Thursday was December 20, 2007, the date of the next meeting of the Conservation Commission. This statement by Mr. Saxl clearly indicated that he and Mr. Fallon knew what was intended to take place at that meeting, namely, the removal of Mr. Steinke and his staff from the FMC project. Thus, Mr. Saxl was obviously suggesting that, if BRR was still in violation by the time of that meeting, then Mr. Steinke’s actions would appear reasonable and his removal unwarranted. That would make the matter of his removal impossible, leaving those in the collusion with “egg on their face.”

On December 17, 2007 Mr. Saxl emailed a report to Mr. Steinke concerning BRR’s response to Mr. Steinke’s accommodation offer of December 14. At this time, Mr. Saxl again failed to tell Mr. Steinke about BRR’s protocol, or about Mr. Fallon’s letter of December 11. (See Exhibit 6.)

This brings us to December 20, the day of the Commission meeting. That afternoon Mr. Flatto summoned Mr. Steinke and his staff to a meeting with him where, by letter dated December 19, 2008, and in person, he told them they were being removed from any involvement with the FMC project. (See Exhibits 7 and 8.). Mr. Flatto told them that the causes for their removal were the need for “the IWPA process [to] be conducted in a fair and equitable manner,” implying that Steinke and staff had not done so; substantive changes to Redniss & Meade suggestions; and their “excessively restrictive approach of interpreting permit conditions.”

At the same meeting, Mr. Flatto told Mr. Steinke and his staff that, if they attempted any action whatsoever on the FMC project, they would no longer be covered under the Town’s public official’s liability or have Town legal representation. He also told them that he was engaging Redniss & Meade to replace them on the FMC project.

Mr. Steinke and his staff objected to these characterizations of their work by Mr. Flatto, and said they were unjustified and untrue. They also urged him not to take this action because it would be in violation of the Charter. Mr. Steinke also asked him to discuss the matter with him before taking any action. (See Exhibit 8.) Despite these entreaties, Mr. Flatto remained adamant in his decision. This continuous refusal to hear Mr. Steinke’s side of the story was done to provide special treatment to BRR.

That same evening, Mr. Flatto arranged an executive session of the Commission at which he told them of his decision and his reasons for it. Mr. Saxl’s opinion attempts to “spin” the real facts concerning the Commission’s reaction to Mr. Flatto’s decision by stating that the “Commission …did not, by vote, state any objection to the decision.” The truth is that some of the Commission members voiced considerable objection, but no vote was taken. Mr. Flatto also claimed that, under the Charter, he had the authority to take these actions.

On December 21, 2007, Mr. Steinke forwarded a detailed memo to Mr. Flatto explaining the reasons for the actions complained of by BRR and Mr. Flatto. Nevertheless, Mr. Flatto again remained adamant in his decision.

Mr. Saxl’s opinion claims that in March, 2008 the Commission “ratified and validated” Mr. Flatto’s action by a 5-2 vote. This was a convoluted attempt to cover up the Charter violations involved in Mr. Flatto’s actions, as we will show hereafter. If Mr. Flatto had the authority to take these actions under the Charter as he claimed, he would have had no reason to have them ratified or validated by the Commission.

Subsequent to Mr. Flatto’s letter of December 19, Mr. Flatto and Mr. Saxl have attempted to re-characterize Mr. Steinke’s removal as a “reassignment” to other duties rather than a removal for cause of his authority of general supervision granted to him by Section 10.3D of the Charter. However, the reasons stated in Mr. Flatto’s letter were clearly statements of “cause” for Mr. Steinke’s removal, and we will show hereafter that Mr. Flatto had no authority under the Charter to unilaterally remove him for cause from his authority of general supervision on a particular project. Further, Mr. Steinke’s authority of general supervision applies, and has always applied, to the performance of Commission duties by all persons engaged by the Commission. So, there were no new duties to which he could have been assigned.

We have spent a great deal of time in addressing the facts involved in this dispute because we believe that the facts described above are sufficient in themselves to prove significant violations, by the parties hereafter named, of the Standards of Conduct set forth in the Charter, and they require disciplinary action by the Ethics Commission.

As to the First Selectman Mr. Kenneth A. Flatto

Section 11.4 of the Standards of Conduct set forth in the Charter provides that no elected Town officer shall use an official position to secure or grant special treatment to any person beyond that which is available to every other person.

Mr. Flatto has clearly violated this provision in the following ways:

1. Mr. Flatto has never before removed Mr. Steinke from the performance of his duties upon the complaint of any other developer. Nor has Mr. Steinke ever been removed upon complaint of any other developer in the more than three decades of his service to the Town. This removal to satisfy BRR’s complaints was special treatment to BRR.

2. Mr. Flatto has provided special treatment to BRR by accepting BRR’s word and/or beliefs that Mr. Steinke was unjustly causing a delay on the FMC project as a basis for his removal, while refusing to ask Mr, Steinke for his position. Even more significant was Mr. Flatto’s failure to even consider Mr. Steinke’s detailed explanations of December 14 and December 21 that showed, contrary to BRR’s beliefs, that Mr. Steinke had been more than accommodating. These refusals to hear Mr. Steinke’s side of the issue were special treatment to BRR in order to satisfy BRR’s complaints.

3. In threatening to remove Mr. Steinke and his staff from the Town’s public official’s liability coverage and deny them Town legal representation if they took any action on the FMC project, Mr. Flatto misrepresented the governing state law which prohibits a denial of such coverage under any such circumstances (See Exhibit 11.). This was done by Mr. Flatto in order to prevent Mr. Steinke and his staff from being involved in the FMC project so that he could give special treatment to BRR in satisfying their complaints.

4. Mr. Flatto’s participation in the formulation of BRR’s protocol for the purpose of removing Mr. Steinke and his staff from the FMC project was special treatment to BRR.

5. Mr. Flatto was obliged to inform Mr. Steinke of BRR’s protocol when it was received by him on November 19, 2007, and to inform Mr. Steinke of Mr. Fallon’s letter of December 11, 2007 upon its receipt, since it contained a possible claim against Mr. Steinke. His failure to do either was special treatment to BRR

Section 11.2D of the Standards of Conduct provides that no elected Town officer shall engage in any activity that may tend to impair the independence of judgment in the performance of his official duties.

As a party to the agreement to develop the FMC project, Mr. Flatto clearly failed to exercise the independence of judgment required by Section 11.2D. 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.

All of the above described favorable treatment to BRR by Mr. Flatto has never been available to any other developer.

As to the Town Attorney, Mr. Richard Saxl:

As the Town Attorney, Mr. Saxl had the most serious obligation of any other Town officer to exercise the independence of judgment required by Section 11.2D of the Standards of Conduct, yet he chose to aid and abet the conduct of Mr. Flatto and BRR described above as part of a collusion to remove Mr. Steinke and his staff from the FMC project. In so doing, Mr. Saxl not only failed to exercise the independence of judgment required by 11.2D, but he became a participant in providing special treatment to BRR and therefore, a participant in each violation of Section 11.4 of the Standards of Conduct by Mr. Flatto, as described above.

Section 9.3C(1) of the Charter provides that the Town Attorney shall be the legal advisor for all Town departments and Town officials, providing all necessary legal services in matters relating to the Town’s interests or the official powers and duties of the Town officials.

On more than one occasion, Mr. Saxl failed to provide legal services to the Conservation Commission as well as to Town officials, i.e., Mr. Steinke and his staff, when they were clearly necessary, in violation of Section 9.3C(1); and these failures provided special treatment to BRR in violation of Section 11.4.

1. Mr. Saxl knew that any consultant engaged to perform Conservation Commission duties was required to be subject to the general supervision of the Conservation Director. (See Exhibit 12.) Nevertheless, Mr. Saxl failed to challenge the engagement of Redniss & Meade without their being subject to Mr. Steinke’s supervision. This was done first by Mr. Flatto, and then by a majority of the Commission and Mr. Saxl failed to challenge them on both occasions. The result of this failure is that the Town is left with a consultant who is being paid by BRR to monitor BRR. This consultant is then directed to report directly to the Conservation Commission which is composed of volunteer citizens who are not professional environmentalists and who have little, if any, technical expertise in environmental science. They are then left without the supervision of their Director, a professional environmentalist, on whose highly respected expertise the Commission has always depended, when they are required to pass on Redniss & Meade reports. This arrangement is a recipe for serious problems. This was done to provide special treatment to BRR.

2. Upon receipt of the BRR protocol of November 19, 2007, Mr. Saxl had an obligation to notify Mr. Steinke and his staff and to provide necessary legal services to them since the protocol was calling for their removal from their powers and duties under the Charter. Despite direct communications with Mr. Steinke on both December 14 and 17 (See Exhibits 4 and 6.), Mr. Saxl failed to do so.

3. Mr. Saxl had the same obligation to notify the Conservation Commission of the protocol since the protocol called for the removal of the Commission’s Director and staff. Mr. Saxl failed to do so.

4. Upon receipt of Mr. Fallon’s letter of December 11, 2007 that contained a threat of possible legal action for damages against Mr. Steinke and his staff, Mr. Saxl had a very serious obligation to notify Mr. Steinke and his staff, and to provide necessary legal services to them, since they might be exposed for damages for performing their powers and duties. Despite the same contacts with Mr. Steinke on December 14 and 17, Mr. Saxl failed to do so. This failure was a direct violation of Connecticut General Statutes Sections 7-101(a) and (b). (See Exhibit 11.) and it was done to provide special treatment to BRR.


As to the Conservation Commission:

On March 27, 2008, a majority of Conservation Commission members, by a vote of 5-2, engaged the same consultants that had been engaged by Mr. Flatto, i.e., Redniss & Meade, on the following terms: said consultants were to be paid by the developer BRR to perform the Commission’s duties of monitoring the compliance of BRR’s activities with all of its laws, ordinances and regulations without their being subject to the general supervision of the Conservation Director; said consultants were to report directly to the Commission, rather than to the Conservation Director, as had always been done by any other consultant on any other developer’s project throughout the history of the Commission; further, this majority agreed to pass on the acceptance of reports by such consultant without the technical advice of its own experts, the Director and his staff, a process that had never been available to any other developer. These actions by this majority of Commission members amounted to special treatment to BRR that was never available to any other developer and were, therefore, in violation of Section 11.4 of the Standards of Conduct.


CONCLUSION


The actions of Mr. Flatto, Mr. Saxl and the majority of Conservation Commission members described above, clearly amounted to preferential treatment for a developer by those parties that has never been available to any other developer. In the history of the
Commission, Mr. Steinke and his staff have never been removed from their performance of their Charter duties on a particular project upon the complaint of any other developer. Nor has any developer ever been allowed to have a private consultant, paid by that developer, to monitor itself, without that consultant being subject to the general supervision of the Conservation Director. Nor has the Commission ever been required to pass on the acceptance of a report by such a consultant without the advice of its own technical experts, the Conservation Director and his staff. The parties referred to above each bear a responsibility for providing this special treatment to BRR that has never been available to any other developer and, therefore, they are each in violation of Section 11.4 of the Standards of Conduct.

Further, Mr. Flatto and Mr. Saxl have violated Section 11.2D for the reasons stated above and Mr. Saxl has failed to perform his duties under Section 9.3C(1) all in order to provide special treatment to BRR.

We have spent a great deal of time in dealing with the facts and history which have given rise to this dispute because the complainants believe that these facts, standing alone, are more than sufficient to prove the violations of the Standards of Conduct by the parties that we have cited, and that this is true whether or not Mr. Flatto had the powers which Mr. Saxl claims he had in his Opinion.

The general policy of the Standards of Conduct is set forth in Section 11.1, which provides that elected and appointed Town officers 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.

Sections 11.2.D and 11.4 then set forth two kinds of conduct to be prohibited in the exercise of any power given to our Town officials.

This policy and the Sections indicated are, therefore, subject to no other interpretation in their application to the conduct we have described of Mr. Flatto, Mr. Saxl and the majority of the Commission members than their clear and unambiguous language indicates.

We submit that the indisputable facts we have cited above show that, beyond any reasonable doubt, whatever governmental powers Mr. Saxl may claim for Mr. Flatto, his use of those powers was in serious violation of both Sections 11.2.D and 11.4, as was the conduct of Mr. Saxl and the majority of Commission members mentioned. Furthermore, we submit that all of this conduct by these parties would cause any reasonable public to justifiably lose trust and confidence in the integrity of government contrary to the general policy set forth in Section 11.1.

For all of these reasons the claimants believe that the Ethics Commission should take disciplinary action against the parties named. In this regard, we suggest that the Commission consider the application of Section 11.3.

Section 11.3 provides that any elected Town or appointed Town officer who acquires such a private interest as might reasonably tend to create a conflict with the public interest shall be disqualified from action on any matter involving the private interest. (See Exhibit 10 attached.)

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 one 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.

The FMC is the largest project in the history of our Town, and it will be ongoing for years to come. For that reason, we suggest that the Ethics Commission consider applying Section 11.3 so as to disqualify Mr. Flatto and Mr. Saxl from taking any action on any matter under the jurisdiction of a Town regulatory body, that involves the interest of BRR relative to the FMC project. In that way, those Town regulatory bodies will be able to fully protect the Town’s interest from undue influence, and Mr. Flatto and Mr. Saxl will be able to avoid the difficulties inherent in a conflict of interest.

The complainants also believe that Mr. Flatto’s removal of Mr. Steinke was in violation of the Charter, as we will show herein, and that it would not only be a serious miscarriage of justice if Mr. Steinke and his staff were not restored to their duties on the FMC project as prescribed by the Charter, but a serious disservice to the Town’s environmental concerns. They have been removed from those duties without real cause and in a manner that should never be condoned, i.e., by providing special treatment to satisfy the complaints of one particular developer. Without Mr. Steinke’s general supervision over the consultants, and his advice to the Commission in dealing with consultant reports, the Town can never be sure that its environmental interests have been fully protected. Mr. Steinke and his staff were never given the opportunity to answer the complaints of BRR, and instead were subjected to the worst kind of prejudiced treatment that any public servant should have to endure. If they are not restored to their duties on the FMC project, BRR, Mr. Flatto and Mr. Saxl can only be encouraged to commit the same kind of unethical actions in the future.

If Mr. Steinke and his staff have committed wrongdoing in the performance of their duties, there is a process provided in Section 3.6A for considering their removal from their employment. Otherwise, there is no authority for their removal only from a particular project.

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 the 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.


11. The Violations of Charter Provisions Other than Those in the Standards of Conduct.


1. Home Rule and the Purpose of the Charter

There is no question that The Fairfield Town Charter is the document that controls the structure in which our local government is to function, so there is no need for a reply in that regard.

2. The Question of Statutory Construction of Charters

Section 1-2z of the Connecticut General Statutes sets forth the most basic rule of statutory construction. It reads as follows:

“The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous, and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be
considered.”

While it is true that no canon of statutory construction is universally applied without exception, the Latin phrase “inclusio unius est exclusio alterius” is one of the most frequently cited canons by our state Supreme Court. It is most often applied when the statute in question is clear and unambiguous on specifics, but is challenged by another section of the same statute, or by a different statute on the same subject matter that is more general in its language.

The English equivalent of this Latin phrase is the language used by our Supreme Court in the case of Galvin v. Freedom of Information Com., 201 Conn. 448, 457 (1986) which is the case most often cited when it is applicable to the case at hand. It held

“Where statutes contain specific and general references covering the same
subject matter, the specific references prevail over the general.”

Mr. Saxl suggests that this canon of statutory construction has “no application whatsoever” to the Charter provisions at issue in this case and cites cases in which the canon was not used to support his position.

We disagree. We believe the Charter provisions at issue in this dispute are clear and unambiguous on their specifics, and we will show that the language quoted in Galvin v. FOI Com, supra, is applicable to this case.

Before doing that, however, we would like to point out that the cases cited by Mr. Saxl are distinguishable from Galvin. In Burke v. Fleet National Bank, the court declined to apply inclusio unius est exclusio alterius, because there was “no language, legislative history or statutory purpose suggesting it do so.” In Seal Adio, Inc. v. Bozak, Inc., the court said that, on their face, the facts in that case tend to support the application of the canon, but the legislative history of the statutes in question showed a different legislative intent. In Cahill v. Board of ed. Of the City of Stamford, the statutes were ambiguous and therefore Galvin did not apply.

We will show that the language of the provisions at issue is clear and unambiguous; that it suggests an intent that the canon in Galvin must be applied; and that it demonstrates a clear legislative purpose to achieve the result we claim must occur.

While it would serve no purpose for us to cite the many cases in which Galvin has been applied, it should be noted that two of the more recent cases, Miller’s Pond, Co. LLC, et al v. City of New London, et al, 273 Conn.,786, 809, 833 (2005.); and Semerzakis v. Commissioner of Social Services, 274 Conn. 1, 18 (2005), both applied the language of Galvin.


3. The Fairfield Charter and Its Provisions

The first Charter provisions at issue in this dispute are those dealing with the powers and duties of the Conservation Commission and the Conservation Director. Therefore, we should begin with those provisions before considering whether extra-textual evidence should be considered.

The statutory scheme for the powers and duties of the Commission and the Director is very clear and unambiguous.

The Commission members are appointed by the First Selectman. (Section 1.4B(1).

The Conservation Director is appointed by the Conservation Commission, with the approval of the First Selectman. (Section 1.4B(3); Sections 9.1 and 9.2; Section 9.25A and Section 10.3D).

Section 10.3B(1) states that the Conservation Commission shall have all of the powers and duties conferred by this Charter, by ordinance, and on commissions generally by…the General Statutes.

Section 10.3B(2) sets forth the powers and duties of the Commission and Section 10.3C sets forth the powers and duties of the Commission when it acts as inland wetlands agency.

Section 10.3D provides “The Commission shall appoint a Conservation Director with the approval of the First Selectman. The Commission shall have the power to engage such other employees and consultants as it requires, who, subject to the general supervision of the Director, shall enforce its laws, ordinances and regulations relating to matters over which it has jurisdiction and who shall have such other duties as the Commission or Director may prescribe.

The first relevant point to note under this statutory scheme, is that the Director is appointed by the Commission, not by the First Selectman. This is verified by Sections 1.4B(3); Sections 9.1 and 9.2; and Section 10.D3.

Secondly, the Director’s authority of general supervision over all employees and consultants of the Commission is granted to him directly by the Charter, not by the First Selectman and not by the Commission.

Once the Director is appointed, we can assume that he has met with the approval of the First Selectman. He then assumes general supervision authority over all consultants and employees engaged by the Commission. This authority is essential to protect the interests of the Town in its environmental concerns. The members of the Commission are volunteers who generally do not have the necessary expertise to make critical environmental decisions without the expertise of the Director for guidance. Further, employees and consultants engaged by the Commission must be subject to the supervision of the Director, otherwise there would be no accountability for their performance. Thus, the authority of general supervision granted to the Director is essential to the proper functioning of the Commission.

It should be noted that the Charter makes no provision for anyone other than the Director to exercise that authority. Therefore, it must be assumed that the Director alone retains that authority as long as he remains the Director.

Nor does the Charter make any provision for anyone other than the Commission to exercise the authority to engage employees or consultants.

In short, the text of Section 10.3 is inarguably, very specific, clear, and unambiguous in its meaning as to the powers and duties of the Commission and the authority of general supervision of the Director.

We must then look to Section 10.3’s relationship to other statutes that relate to the same subject matter, to determine if the meaning of its text is still plain and unambiguous and does not yield absurd or unworkable results after examining that relationship.

The following are the only sections of the Charter that can be construed to deal with the same subject matter as Section 10.3:

Section 9.25B provides that “The Conservation Director shall have the duties prescribed by the Conservation Commissioner and the First Selectman.”

Mr. Saxl’s Opinion interprets this provision to mean that “all actions to prescribe either general or daily duties to the conservation Director and Conservation Department Staff fall… solely under the authority of the First Selectman….There is no Commission role defined in this regard under either local or State statutes.”

This interpretation is, of course, refuted by the very terms of the Section he is interpreting. Section 9.25B says the Director “shall have the duties prescribed by the Conservation Commission and the First Selectman. It is also refuted by Section 10.3D which provides that the employees and consultants engaged by the Commission …”shall have such other duties as the Commission or the Director may prescribe.”

This interpretation is also refuted by Section 6.2B(2) which provides that ‘All Town officers… appointed solely by the First Selectman shall be responsible to the First Selectman for the faithful performance of their duties and shall report to the First Selectman.” As noted above, the Director is not appointed solely by the First Selectman, and, therefore, he is not responsible to the First Selectman for the faithful performance of his duties.

Thus, this general statement in Mr. Saxl’s Opinion must be limited by the specific statements in 9.25B including the Commission’s duty to prescribe duties for the Director, as well as Section 10.3D as to staff, and by Section 6.2B(2) as explained above.

This analysis is supported by our state Supreme Court’s opinion in Semerzakis v. Commission of Social Services (2005), supra, which held as follows at page 18:

“It is well settled, that “where statutes contain specific and general references covering the same subject matter, the specific references prevail over the general”
Galvin v. FOI Com…. See also Gaynor v. Union Trust Co., 216 Conn.458, 476-477 “if there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of the general provision, the particular provision must prevail; and if both cannot apply, the particular provision will be treated as an exception to the general provision”

The only reasonable conclusion left that does not conflict with these specific provisions as to the meaning of Section 9.25B is that it refers to general duties of the Director in the nature of a job description.

Section 9.25C provides “The Conservation Director shall report to the First Selectman on matters of administration and operation and to the Conservation Commission on matters of policy.”

The issue in this case is whether or not the Director performed his duties under the Charter in a fair manner. It has nothing to do with the administration of the Conservation Department or its general operation. Mr. Saxl would have us believe that this section authorizes Mr. Flatto to assign the daily duties of the Director. That offends common sense. Mr. Flatto has neither the expertise nor the competence in environmental matters possessed by the Director and it would be ludicrous and chaotic to department affairs if they had to look to him for guidance on their daily duties.

Once again, this general section must be interpreted in the light of the sections and the case we have quoted in dealing with Section 9.25B all of which are specific and must be considered as limiting the general nature of Section 9.25C.

Section 6.2A(3) provides “The First Selectman shall direct the Administration of all departments and officers.”

Once again, we submit that this general provision is limited in its meaning as to the performance by the Director of his duties under the Charter, by the specific sections and the case we have cited.

The remaining arguments of Mr. Saxl are based on extra-textual evidence from dictionaries and treatises and other areas of the Charter that have no relation to the specific Charter provisions at issue. In general, they attempt to establish a power for the Selectman that would enable him to control the operations of every Town department or Officer without being responsible to any other authority. That kind of absolute executive power has never existed in any form of government in our country and thankfully, it does not exist under our Charter.

It should be clear from this analysis, that none of these related Sections of the Charter render the provisions of Section 10.3 absurd or unworkable and the section remains plain and unambiguous. Therefore, the specific language of Section 10.3 must prevail in determining the powers and duties of the Conservation Commission and its Director.

There is, however, one logical question to be asked as a result of the analysis we have offered. “If the Director is not responsible to the First Selectman for the faithful performance of his duties, to whom is he responsible?

The answer to that question is found in Section 3.6A which provides as follows:

“Any appointed Town officer may…be removed for cause by the appointing …board; provided notice shall first be given in writing of the specific grounds for removal and the individual shall be given an opportunity to be heard in defense, alone or with counsel of the individual’s choice, at a hearing before the appointing… board, held not more than 10 and not less than five days after delivery of such notice. The hearing shall be held in accordance with the Freedom of Information Act….Appeals may be taken where provided by statute.”

Mr. Saxl’s Opinion claims that Mr. Steinke was clearly not removed because he still draws his salary and that there was merely a “reassignment of the duties of the Conservation Director and staff, and/or the reassignment of such duties” to other parties.”

That is nothing but convoluted “spin” to conceal the real truth as we showed in the first section of our Ethics Complaint. The truth is quite simple and cannot be hidden by doublespeak.

The Town Charter, not the First Selectman and not the Conservation Commission, has, by Section 10.3D, given the authority of general supervision over all employees and consultants engaged by the Commission, to the Conservation Director, and to no one else. There is no provision in the Charter for assigning that authority to anyone else. The simple truth is that the Conservation Director retains his authority of general supervision over all employees and consultants engaged by the Commission as long as he is the Director.

The action of Mr. Flatto was never a reassignment of Mr. Steinke and his staff and it is less than honest to make such a claim. It was, plain and simple, a removal of Mr. Steinke’s authority of general supervision over all employees and consultants engaged to work on the FMC project.

It is true, that Mr. Steinke has not been totally removed because he continues to exercise his authority over projects other than FMC. It is equally true that he has been removed from exercising his Charter given authority over the FMC project by Mr. Flatto in violation of the clear language of Section 10.3D. That removal is total, and the Town has been left with an outside consultant, paid for by the developer to monitor the developer, BRR, without the general supervision of the Conservation Director.

The FMC project is the largest project in Fairfield’s history, and it will be ongoing for years. Furthermore, this particular site contains enormous amounts of contaminated materials. It would be totally irresponsible to allow this completely untenable relationship between the consultant and BRR to continue at the risk of our townspeople.

It is because of the uniqueness of Mr. Flatto’s action, therefore, that we are confronted with a unique case of partial removal. How then, shall we apply the provisions of Section 3.6A ? There has never been a case of partial removal, because there has never been a usurpation of authority as took place in this case.

Should Mr. Steinke and his staff be entitled to all the protections of Section 3.6A? They are due process protections that are an integral part of our society whenever someone is accused of wrongdoing.

Or should Mr. Flatto be allowed to deny those protections to Mr. Steinke and his staff ? If he can violate Section 10.3D of the Charter with impunity, why not let him go even further and let him just take the word and beliefs of Mr. Steinke’s accuser, and even let his accuser decide his punishment as BRR’s “protocol” specified, without allowing Mr. Steinke to speak in his own defense? That is, of course, exactly what has happened here.

Or should we reinstate Mr. Steinke to his rightful authority under the Charter and assume he is innocent until proven guilty? We would hope so.

If there is, in fact, cause for the removal of Mr. Steinke from his position as Conservation Director, Section 3.6A provides the process for doing so. If, however, there is no cause that merits his removal as Conservation Director, he cannot be removed, or reassigned, or anything else that prevents him from exercising his Charter given authority of supervision over all employees and consultants working on the FMC project, or any other project for that matter.

The complainants in this Ethics Complaint are simply civic-minded citizens of the Town they care for very deeply. They are concerned about protecting the environment of Fairfield for themselves and for all who come after them. They have been steadfast in their attempts to restore the order the Charter provides for the Conservation Commission, its Director and his staff, but they have not been successful thus far. They are equally concerned over what they see as a precedent setting wrongful usurpation of authority.

There are even some Commission members, regular and alternate, who have been just as steadfast in their efforts to restore that order, but neither have they been successful thus far. As often happens, political power can cause political loyalty to blur the clarity of one’s vision in the exercise of official duties.

The Ethics Commission of our Town, however, is a body that transcends partiality to anyone and we are confident that our Complaint will be judged accordingly .



Respectfully Submitted By



___________________________
George R. Bisacca,
Attorney for the Complainants

ETHICS COMPLAINT


The undersigned citizens of the Town of Fairfield, being first duly sworn as to the truth of the allegations herein contained, do hereby make this Ethics Complaint against the elected and appointed Town officers and the Commission hereinafter named, because we believe they have violated the Standards of Conduct set forth in the Fairfield Town Charter by failing to demonstrate the highest standards of ethical conduct, to the end that the public may justifiably have trust and confidence in the integrity of our government.

1. As to First Selectman, Kenneth A. Flatto.

Section 11.4 of the Standards of Conduct set forth in the Charter provides that no elected Town officer shall use an official position to secure or grant special treatment to any person beyond that which is available to every other person. (See Exhibit 10 attached.)

Mr. Flatto has persisted in violating Section 11.4 of the Standards of Conduct by granting special consideration to Black Rock Realty LLC (BRR), the developer of the project known as the Fairfield Metro Center (FMC), beyond that which is available to every other developer in the Town of Fairfield. Furthermore, he has done so by conduct that is in violation of the Charter, other sections of the Standards of Conduct, and state statutes.

The evidence in support of these allegations is as follows:

On November 19, 2007, BRR sent an email to the Town Attorney, Richard Saxl, setting forth a “protocol” in which BRR threatened that BRR would not go further with the FMC project unless the Conservation Director, Thomas Steinke, and his staff, were removed from their duties in connection with the FMC project to the extent they would have “absolutely nothing to do with the FMC project” and “would be forbidden to even offer their recommendations.” BRR further demanded that a consultant be hired to replace Mr. Steinke and his staff on the FMC project. BRR also insisted that these demands be presented to Mr. Steinke and his staff in writing and they be advised that, if they violated this protocol, it would be grounds for their removal with “cause.” In other words, their employment with the Town would be terminated. (See Exhibit 1 attached.)

Neither Mr. Saxl nor Mr. Flatto shared this protocol with Mr. Steinke and his staff at the time of its receipt.

On the same day, Mr. Saxl sent the BRR protocol to Mr. Flatto with the notation

“f.y.i. I don’t think we said anything about a violation being grounds for removal for cause.” (See Exhibit 2 attached)

This statement is compelling evidence that Mr. Saxl and Mr. Flatto had agreed with BRR on the other terms of the protocol, or at a minimum, had participated in its formulation, and that they were in collusion with BRR for the purpose of removing Mr. Steinke and his staff from involvement with the FMC project, and thus provide special treatment for BRR.

By letter to Mr. Saxl as Town Attorney dated December 11, 2007, the attorney for BRR, Mr. John Fallon, alleged that certain actions by Town employees were in violation of the tripartite agreement entered into by the Town, BRR, and the State of Connecticut, and therefore BRR “will take appropriate legal measures to enforce its rights under the Agreement and will, as necessary, seek reimbursement for all damages sustained.” (See Exhibit 3, attached.)

By email dated December 14, 2007, Mr. Steinke, unaware of the protocol or Mr. Fallon’s letter, advised Mr. Saxl that there were significant violations by BRR on the FMC site. He advised Mr. Saxl that, while these violations would be grounds for a cease and desist order, he had instructed his staff not to start enforcement action, but to pursue an alternative method of getting BRR to be in compliance which would get BRR back to work very quickly. Despite this accommodation by Mr. Steinke, Mr. Saxl did not mention either the protocol or Mr. Fallon’s letter to him. (See Exhibit 4 attached.)

On the same day, Mr. Saxl forwarded Mr. Steinke’s email concerning BRR violations to Mr. Fallon. (See Exhibit 5 attached) This email contained the following statement:

“We need to have Steinke’s checklist accomplished by Thursday or there will be enough egg on everyone’s face to make matters impossible.”

Thursday, December 20, 2007 was the date of the next meeting of the Conservation Commission. This statement by Mr. Saxl clearly indicated that he and Mr. Fallon were aware of what was intended to take place at that meeting, namely, the removal of Mr. Steinke and his staff from the FMC project. Mr. Saxl was obviously suggesting that, if BRR was still in violation by the time of that meeting, then Mr. Steinke’s actions would then appear reasonable and his removal unwarranted. That would make the matter of Steinke’s removal impossible and leave those in the collusion with “egg on their face.”

On December 17, 2007, Mr. Saxl emailed Mr. Steinke to the effect that: “All work has now stopped on the property per John Fallon. John advises that many of the items on your list have already been completed as well.” (See Exhibit 6 attached) Once again, Mr. Saxl did not tell Mr. Steinke about the BRR protocol or Mr. Fallon’s letter of December 11, 2007.

In the afternoon of December 20, 2007, Mr. Flatto, in person, and by letter dated December 19, 2007, advised Mr. Steinke and his staff that he had decided they were to be removed from any further involvement with the FMC project, and, if they should take further action of any kind on the project, they would no longer be covered under the Town’s public official’s liability policy or have town legal representation. He further advised them that, effective immediately, he was engaging Redniss & Meade to replace Mr. Steinke and his staff in the performance of their duties on the FMC project, and that Redniss & Meade was to work solely through the Commission Chair and the Town Attorney. (See Exhibit 7 attached.) These actions by Mr. Flatto mirrored the demands made by BRR on November 19th.

Mr. Flatto told Mr. Steinke and his staff that the reasons for their removal were that they needed to be “more accommodating and reasonable.” He also said that there was “a letter of complaint, a claim about the staff.” When staff asked to see the letter, Mr. Flatto said he did not have it, but Mr. Saxl did. Staff asked when it had arrived, but Mr. Flatto did not answer. The staff pointed out that Mr. Flatto’s explanation of how his plan would be implemented was fraught with conflicts of interest, especially if BRR was to pay the consultant to oversee itself. Mr. Steinke also pointed out that the Charter requires any consultants to go through the staff and that this plan would be in violation. Mr. Steinke then urged Mr. Flatto to discuss his decision with him before making it final. Despite these entreaties by Mr. Steinke and his staff, Mr. Flatto remained adamant about his decision. (See Exhibit 8 attached.)

That same evening, December 20, 2007, Mr. Flatto, for the first time, and at an executive session meeting arranged by him, advised the members of the Conservation Commission that he had taken the actions set forth in his letter of December 19th. Also, for the first time, Mr. Fallon’s letter of December 11, 2007, was shown to members of the Commission and to Mr. Steinke. To our knowledge, neither the members of the Commission nor Mr. Steinke were given a detailed explanation of the claims being made by Mr. Fallon, nor were they given a detailed legal analysis of the merits of those claims by Mr. Saxl at that meeting.

To our knowledge, Mr. Steinke and his staff have never been given written notice from the Conservation Commission of their removal from the performance of their duties concerning the FMC project nor have they been provided an opportunity to defend themselves against the charges set forth in Mr. Flatto’s letter as a basis for their removal.

This action of Mr. Flatto in removing Mr. Steinke from the performance of duties required of him by the Charter, in order to satisfy the complaints of the developer, BRR, was unprecedented in the history of the Conservation Commission. Mr. Steinke has never been removed from the performance of his duties under the Charter upon complaint of any other developer for over three decades. Nor has Mr. Steinke been removed from the performance of his duties on any other project since December 19, 2007, and he continues to exercise the authority of general supervision granted to him by Section 10.3D of the Town Charter on all other projects to this day. Needless to say, such special treatment for a single developer not only violates the Standards of Conduct but is fraught with further danger of wrongdoing if it becomes a precedent for future similar treatment.

By email dated December 21, 2007, and addressed to Mr. Flatto, Mr. Steinke responded to BRR’s claim that he was being “obstructive” in great detail, to show that he had not been obstructive but was simply performing his duties as he understood he was required to do by the Town Charter. However, Mr. Flatto remained adamant in his decision, despite Mr. Steinke’s clarification. (See Exhibit 9 attached.) By ignoring this detailed response of the Town’s Conservation Director, Mr. Flatto once more provided special treatment to BRR.

The actions above described, taken together, amount to compelling evidence of collusion between Mr. Flatto and the parties above-mentioned, to achieve the removal of a Town officer, Mr. Steinke, from his duties under the Charter by means in violation of the Town Charter in order to satisfy the complaints of a developer, BRR. In so doing, these parties clearly provided special treatment to BRR in violation of Section 11.4.

Furthermore, these actions of Mr.Flatto, and his persistent actions to confirm and enforce them, were in violation of the following provisions of the Town Charter, including the Standards of Conduct (See Exhibit 10 attached) and state statutes. (See Exhibit 11 attached.)

Section 10.3B(1) of the Charter provides that the Conservation Commission shall have all of the powers and duties conferred by this Charter, by ordinance and on conservation commissions generally by the General Statutes.

There is no provision in the Charter that provides for any sharing by the First Selectman of those specific powers and duties.

Section 1.4B(3) of the Charter provides that the Conservation Director shall be appointed by the Conservation Commission.

Section 3.6 of the Charter provides that any appointed Town officer may be removed for cause by the appointing Town officer or board.

There is no provision in the Charter that gives the First Selectman the authority to remove
the Conservation Director from the performance of his duties as prescribed by the
Charter. The only process for a Town officer’s removal is that specified in Section 3.6 which requires that the appointing board give the Town officer written notice of the charges against him, an opportunity to defend himself with counsel of his choice at a hearing before the appointing board. This illegal assumption of the Commission’s authority by Mr. Flatto was done in order to provide special treatment to BRR.

Section 10.3D of the Charter provides that the Commission shall have the power to engage employees or consultants who, subject to the general supervision of the Conservation Director, shall enforce its regulations.

This specific grant of authority to engage employees has been granted only to the Commission. There is no other provision in the Charter that gives the First Selectman any authority to assume this specific grant of authority to the Commission. Therefore, Mr. Flatto’s engagement of Redniss & Meade to carry out the duties of Mr. Steinke and his staff was in violation of the Charter and amounted to special treatment for BRR in violation of the Standards of Conduct.

More importantly, since the Charter’s grant of general supervision authority over all employees or consultants engaged by the Commission is given only to the Conservation Director, that authority cannot be interfered with as long as the Director remains in office. Therefore, Mr. Flatto’s engagement of Redniss & Meade to work solely with the Chairman and the Town Attorney and not to be subject to the general supervision of the Director amounted to special treatment for BRR in violation of the Standards of Conduct.

Section 7-101(a) of the Connecticut General Statutes provides that each municipality shall protect and save harmless any municipal officer from financial loss and expense, including legal fees and costs arising out of any claim, demand, suit or judgment by reason of alleged negligence on the part of such officer while acting in the discharge of his duties.

Section 101(b) goes even further by providing that each municipality shall provide the same benefits to a Town officer even when he is charged with an alleged malicious, wanton or willful act or ultra vires act until and unless a judgment is entered against him for committing such an act. Only after such a judgment would the officer be required to reimburse the municipality. (See Exhibit 11attached.)

These statutes are clear and unambiguous as to the statutory obligation of the Town to provide coverage to its Town officers under all circumstances unless and until a judgment is entered against them. Thus, the actions of Mr. Flatto and the Board of Selectmen in threatening to remove the Director and his staff from the Town’s public official’s liability insurance and to deny them Town legal representation if they did any further work on the
FCM project were in direct violation of our state statutes and grossly unethical in that they misrepresented the law to accomplish their unethical purpose, i.e., to give special treatment to BRR in violation of the Standards of Conduct.

Section 11.2D of the Standards of Conduct set forth in the Charter provides that no elected Town officer shall engage in any activity that may tend to impair the independence of judgment in the performance of his official duties.

As a party to the agreement to develop the FMC project, Mr. Flatto clearly did not exercise the independence of judgment required of a First Selectman under Section 11.2D of the Standards of Conduct. 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 assuming dictatorial control over Mr. Steinke and the Commission, in order to satisfy the complaints of his contractual partner in direct defiance of the Charter and state statutes, as well as the Standards of Conduct, again to give special treatment to BRR.

Mr. Flatto’s defense to all of these charges of Charter violations has been to refer to general provisions of the Charter, none of which contain any specific language concerning the Commission’s authority to engage employees to carry out its duties, nor any specific language concerning the general supervision authority of the Conservation Director, nor any specific language concerning the removal of a Town officer. Furthermore, Mr. Flatto’s claim that Mr. Steinke is required to report to him concerning his duties is without merit, since Section 6.2B(2) of the Charter specifically provides that only those Town officers appointed solely by the First Selectman shall be responsible to the First Selectman for the faithful performance of their duties, and Mr. Steinke was not appointed by the First Selectman. Under Connecticut law controlling statutory construction, “Where statutes contain specific and general references covering the same subject matter, the specific references prevail over the general.” (See Galvin v. Freedom of Information Com., 201 Conn 448, 457 (1986).) Therefore, these general provisions referred to by Mr. Flatto cannot be used to justify his actions in violation of the Standards of Conduct.

2. As to the Town attorney, Richard Saxl:

As the Town Attorney, Mr. Saxl had the most serious obligation of any other Town
official to exercise the independence of judgment required by Section 11.2D, yet he failed to meet that obligation on more than one occasion, in order to provide special treatment to BRR in violation of Section 11.4 of the Standards of Conduct.

Section 9.3C(1) of the Charter provides that the Town Attorney shall be the legal advisor for all Town departments and Town officials, “providing all necessary legal services in matters relating to the Town’s interests or the official powers and duties of the Town officials.”

On more than one occasion, Mr. Saxl failed to provide legal services to the Conservation Commission, as well as to Mr. Steinke and his staff, when they were clearly necessary.
These omissions resulted in special treatment for the developer, BRR.

The evidence in support of these allegations is as follows:

Mr. Saxl either knew, or in the exercise of reasonable care should have known, that he was involved in a conflict of interest when he was providing legal advice to the First Selectman as a party to the FMC development contract at the same time he was obliged to provide advice to the Commission and to Mr. Steinke on subject matters in which the interests of both parties were often not the same. Despite this obvious conflict, Mr. Saxl aided and abetted all of the above-described conduct of Mr. Flatto, when he either knew, or in the exercise of reasonable care should have known, that such conduct was in clear violation of the Town Charter, the state statutes, and the Standards of Conduct. In so doing, Mr. Saxl must be considered equally guilty with Mr. Flatto of those same violations.

Mr. Saxl was well aware that consultants working on Commission matters were required to be subject to the general supervision of the Conservation Director. (See Exhibit 12 attached.) Nevertheless, Mr. Saxl failed to take steps to prevent the First Selectman from engaging Redniss & Meade to act as a consultant without being subject to the Director’s authority, when he knew such action would be in violation of Section 10.3D. In so doing, he became a willing party to the collusion, whose purpose was to remove Mr. Steinke from his authority over the FMC project in order to provide special treatment to BRR.

Mr. Saxl consistently failed to respond to significant legal opinions based on prevailing Connecticut law which concluded that Mr. Flatto’s actions were in violation of the Charter. Furthermore, when some Commission members asked for a response to those opinions, Mr. Saxl expressly advised them that Mr. Flatto’s actions were not in violation of the Charter. (See Exhibit 13 attached.) In so doing, he misled the Commission into ratifying those unethical actions in order to provide special treatment for BRR.

Upon receipt of the BRR protocol on November 19, 2007, that threatened to stop work on the FMC project unless Mr. Steinke and his staff were removed from the project and replaced by a consultant, Mr. Saxl had an obligation to report this development to Mr. Steinke and his staff and provide legal advice to them, as part of his obligation to provide them with necessary legal services under Section 9.3C(1). Despite direct communications with Mr. Steinke on both December 14 and 17, Mr. Saxl failed to notify Mr. Steinke and his staff of the BRR protocol, thereby providing special treatment to BRR.

Mr. Saxl was also well aware that Mr. Fallon’s letter of December 11, 2007 was claiming violations of the tripartite agreement by Mr. Steinke and his staff and that BRR would seek damages for the same. Nevertheless, Mr. Saxl failed to notify Mr. Steinke and his staff of this letter, when he had obvious occasions to do so in response to Mr. Steinke’s
email of December 14 and his own email to Mr. Steinke of December 17. This failure was a serious violation of his duty to provide necessary legal services to protect Town officials as required by Section 9.3C(1), since they could have been exposed to the payment of damages. Again, this was part of the special treatment being given to BRR.

Given the very general nature of the BRR allegations set forth in Mr. Fallon’s letter of December 11, 2007, Mr. Saxl necessarily had a duty to provide a thorough investigation of BRR’s claims by gathering all the facts from both BRR and Mr. Steinke and his staff relative to those claims prior to the Commission meeting on December 20, 2007 and, based on such investigation, to provide a legal opinion to the Conservation Commission and to Mr. Steinke and his staff at that meeting. Mr. Saxl either knew, or in the exercise of reasonable care, should have known, that, without such an investigation and opinion, neither the Commission nor Mr. Steinke could properly evaluate the merits of BRR’s claims, in order to protect the Town’s interests as well as the interests of Mr. Steinke and his staff. In failing to provide such a necessary investigation and opinion, as required by Section 9.3C(1), Mr. Saxl aided and abetted the special treatment being given to BRR.

Furthermore, prior to the December 20 meeting, Mr. Saxl either knew, or in the exercise of reasonable care should have known, that Mr. Flatto would claim at that meeting that the claim of BRR described in Mr. Fallon’s letter was a justification for his illegal action. Since Mr. Saxl was representing Mr. Flatto as a party of interest in the FMC project at the same time he was obliged to provide necessary legal services to the Commission and to Mr. Steinke on a subject matter in which their interests were not the same, Mr. Saxl should have recused himself to avoid a conflict of interest and arranged for other counsel to represent the Commission and Mr. Steinke. In failing to do either, he failed to exercise the independence of judgment required by Section 11.2D in order to provide special treatment to BRR.


3. As to the Conservation Commission

Since the December 20, 2007, meeting at which Mr. Steinke was removed, the
Conservation Commission, and especially its Chairman, Attorney Stanley Lesser, have consistently aided and abetted the illegal and unethical actions of Mr. Flatto by failing to challenge those actions when it knew, or in the exercise of due care should have known, that such actions amounted to a usurpation of the Commission’s powers and duties as specified by the Charter. Furthermore, by its continuous acquiescence in such usurpation the Commission failed and is still failing, to perform its responsibilities as required by the Charter and, in so doing, it aided and abetted the special treatment being given to BRR.

On March 27, 2008, the Conservation Commission even went so far as to attempt to ratify the unethical action of Mr. Flatto by engaging Redniss & Meade to replace Mr. Steinke and his staff on the FMC project and by appointing Mr. Gary Weddle as Compliance Officer, without requiring either of them to be subject to the general supervision authority of the Conservation Director as required by the Charter.

This was done after the Commission had received a detailed legal opinion from outside counsel and repeated admonitions by regular and alternate members of the Commission that to so rendered the Commission in violation of Section 10.3D of the Charter. Despite those warnings, a majority of Commission members summarily voted to foreclose debate on these serious questions and proceeded to ratify Mr. Flatto’s illegal actions. This entire scenario was an indication that Mr. Flatto recognized the illegality of his usurpation of the Commission’s authority to engage consultants and was attempting to absolve himself of that illegality by having the Commission ratify his action. However, that majority of Commission members only compounded that illegality by adamantly refusing to make Redniss & Meade and Mr. Weddle subject to the general supervision of the Director, thereby rendering that majority of Commission members in violation of both Section 10.3D of the Charter as well as Section 11.4 of the Standards of Conduct by giving special treatment to BRR.

As a result of all of this unethical conduct by the parties above mentioned, Mr. Steinke, a Town officer who has served Fairfield faithfully, diligently, and with integrity for over
three decades, has been forced to stand by and watch his reputation besmirched without the ability to defend himself. Mr. Steinke has one year left before retirement and he has been fearful about challenging these parties who have illegally threatened him with a loss of public officer’s liability coverage if he performed the duties required of him by the Charter, and who have caused him serious concern that he might be fired and lose his pension should he attempt to perform his duties on the FMC project.


CONCLUSION:

The actions of Mr. Flatto, Mr. Saxl and the Conservation Commission, as described in this Ethics Complaint, evince a Town government out of control. When the two most powerful Town officials in Fairfield believe that they can run roughshod over the provisions of the Town Charter, including the Standards of Conduct, and do so with impunity, in order to collude with a private party for the benefit of that private party, and who also believe they can influence an important Town commission to give them its stamp of approval for such conduct, it is too late in the day not to recognize this abuse of power. It is time for the Ethics Commission to regain control of our government by enforcing the provisions of the Town Charter, including the Standards of Conduct.

It is true that the Town is a party to the tripartite agreement with BRR and the State of Connecticut, and it is true that Mr. Flatto, as our First Selectman, is the Town’s signatory to that agreement. But, it is also true that Mr. Flatto’s first obligation is to the interests
of the Town, not those of the developer, BRR and that the same applies to Mr. Saxl.

What we have seen in the events described above clearly demonstrates the danger of Mr. Flatto and Mr. Saxl serving two masters.

How can this obvious conflict be resolved in a way that can avoid a repetition of the events described above? Given the fact that the FMC project is enormous in scope and
will be ongoing for years ahead, it is imperative that this conflict be resolved as soon as possible.

Section 11.3 of the Standards of Conduct provides that any elected or appointed Town officer who acquires such a private interest as might reasonably tend to create a conflict with the public interest shall be disqualified from action on any matter involving the private interest. See Exhibit 10 attached)

While Mr. Flatto and Mr. Saxl do not appear to have a private interest, as that term is commonly understood, in the FMC project, they do appear to have been overly inclined to accommodate the project’s operations, which tends to influence their judgment in ways that may conflict with the public’s interest, especially when that tendency leads to violations of the Charter, as has occurred in this case. We suggest, therefore, that the Ethics Commission might consider applying the provisions of Section 11.3 and disqualify Mr. Flatto and Mr. Saxl from action on any matter under the jurisdiction of a Town regulatory body involving the interest of BRR relative to the FMC project. In that way, our Town commissions, departments and Town officers who are charged with enforcing Town regulations will be able to fully protect the Town’s interests without outside interference and Mr. Flatto and Mr. Saxl will be able to avoid the difficulties inherent in a conflict of interest.

We also believe that it would be a travesty that would not only offend anyone’s sense of justice but set a dangerous precedent for our Town government, if the unethical conduct described in this Ethics Complaint is not condemned by the Ethics Commission and appropriate disciplinary action taken against those responsible for that conduct, including
the express voiding of Mr. Flatto’s and the Commission’s removal of Mr. Steinke and his staff from the FMC project in order that they can resume their rightful duties under the Charter.


___________________________________ _______________________________
Edward J. Bateson III Jane K. Talamini




_____________________________________ _______________________________
Jeanne Konecny Jocelyn T. Shaw

-11-



____________________________ _______________________________
Marcia Miner Les Schaffer



________________________________ ________________________________
Alexis P. Harrison Philip Meiman



_________________________________
Pamela Ritter




State of Connecticut )
) ss. Fairfield June 2008
County of Fairfield )



Subscribed and sworn to by Edward J. Bateson III, Jane K. Talamini, Jeanne Knonecy,

Jocelyn T. Shaw, Marcia Miner, Les Schaffer, Alexis Harrison, Pamela Ritter and Phillip

Meiman before me this day of June, 2008.


______________________________________
George R. Bisacca, Commissioner of the
Superior Court for Fairfield County