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