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