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