He said, He said: Flatto v. Saxl on loss of Metro parking fees
Updated 4:07 pm, Friday, January 6, 2012
A supplemental report on the Fairfield Metro railroad station by the law firm McCarter & English focuses on a binding letter of agreement on the project between the town and the state Department of Transportation dated July 15, 2010.
The state had asked town officials to review the letter in respect to then-First Selectman Kenneth Flatto's ability to execute the agreement. The letter in question basically agreed the state would be able to deduct its debt-service payments of $19.4 million from revenue generated by commuter parking fees at the station, which the town initially expected to collect. In the documents, Town Attorney Richard Saxl states the Board of Selectmen authorized Flatto to enter into and execute all documents on behalf of the town, and that the Representative Town Meeting had a discussion of the interpretation of a section of the agreement on parking revenues.
Here's what Saxl and Flatto had to say in correspondence regarding the matter:
- A letter from Saxl to the Board of Selectmen, Dec. 7, 2011:
"As to the comment about the RTM, I believe I told (DOT lawyer) Denise Rodosevich that Ken had discussed the project update with the RTM on 5-24-10. I signed what Denise asked me to which included the words "including the specific interpretation of the section 4.3 as set forth in the Binding Lettering (sic) during the question and answer period..." I do not believe that was an accurate statement. My recollection was that Ken alluded to it in general terms only.
"In reviewing this a year and a half later, I acknowledge that I erred in my statement in the 7-15-10 letter regarding the RTM. As I said, I was under considerable time pressure to get things finalized before the awarding of the Guerrera (construction) contract on 7-16-10. I hastily signed off on the final version."
- Email from Flatto to Saxl and Rodosevich, July 14, 2010:
"Dick, Denise, my goodness:
"This month old question about the validity of the letter re the reimbursement of the annual bond from parking revenues has been resolved and is beyond reproach. This really has been put to bed I will not/can not take further unneeded actions which will hold this project up. First of all, when the Attorney for a Municipality has certified to the state DOT in writing that the `letter' is legally binding upon the town, that shouldbe sufficient for you. Second, when a town legally adopted resolution passed by both the BOS in 2010 and by the RTM and BOF in a prior year specifically stated `the First Selectman is authorized to apply for and and accept any available state or federal grant in aid for the financing of the Project' and further `to take all necessary action on behalf of the town to receive such grants including executing any necessary documents' ... this gives me as First Selectman complete authority to execute the letter regarding defining debt payments against parking revenues signed with the DOT. This was part of the resolution the BOS reauthorized on May 5, 2010."
- Letter from Flatto to the Board of Selectmen, Dec. 7, 2011:
"Based on their (DOT) requested letter's content as a clarification to the existing 2003 Agreement, I signed it as requested. This letter was never intended as some secret deal but as a security statement to the DOT as to our mutual understanding of their existing rights. I did not think it made sense to give it out to the Boards just as I did not tell the Boards we gained $5 million in future revenue due to no longer repaying road costs. I just did not believe these things affected what we were announcing. In retrospect, I wish I had cleared up this confusion earler to show we gained from 2003. This letter was not related to the Project construction before use in 2010.
"My administration presented all the negotiated accords in 2010 to town Boards and as you know, the BOS approved resolutions in 2010 regarding those accords. When presenting costs of construction, I did tell the Boards there could be some possible financial risk, as meeting minutes show, and I said we would manage any such issue if it came up. I can understand the surprise and frustration that the project ran over budget due to additional polluted materials having to be removed form the shoreline after I left office."
- Report on Fairfield Metro project by Richard Vitarelli, independent counsel hired by town, Jan. 4, 2012:
"I asked Mr. Flatto whether he and Attorney Saxl discussed notifying (DOT) Attorney Rodosevich of the errors in the letter. Although he qualified his response by stating he could not swear to it, Mr. Flatto initially recalled asking Attorney Saxl to contact Attorney Rodosevich about the error and offered to contact the acting CONNDOT Commissioner to explain the error. Mr. Flatto confirmed that he never contacted the Acting Commission or anyone at CONNDOT concerning the error. Mr. Flatto called me after my telephone conversation with him and left me a voice message clarifying his recollection that he did not instruct Attorney Rodosevich, but expected that Attorney Saxl would have done so."