Report: Flatto overstepped role on Fairfield Metro pact; Saxl out as town attorney
Former First Selectman Kenneth Flatto did not have authority to agree to a revised contract last year designed to jump start construction of the Fairfield Metro railroad station project, according to an independent counsel's report.
The report, commissioned by interim First Selectman Michael Tetreau after it was revealed last spring that construction of the town's third rail station was millions over budget, prompted him to accept Town Attorney Richard Saxl's resignation Monday -- the same day the report was released. Saxl was the town's chief legal official at time Flatto struck the deal with the state and private developer, Blackrock Realty, to complete the project.
Flatto told the Fairfield Citizen on Monday that he finds report by the law firm of McCarter and English, with offices in Stamford and Hartford, to be "strange," and insisted that he believes he had the authority to sign off on the revised agreement without the standard series of approvals by town government.
The revised contract has come under fire because it was not reviewed by any town boards other than the Board of Selectmen and, after the state agreed to kick in more than $19 million to finish the project, it was learned the pact holds the town solely responsible for cost overruns.
The law firm's report states the contract revisions were presented to the selectmen for approval on May 5, 2010, but, "During the meeting, Mr. Flatto and Town Attorney Richard Saxl stated that approval or ratification of the closing agreement and state-town agreement was unnecessary, but presented merely as a `belt and suspenders' measure in light of the language of the 2003 resolution." The binding letter of agreement on revenue from commuter parking fees -- which would go back to the state until its debt service for the project was paid -- was not submitted to the Board of Selectmen for approval.
Since then, the town was forced to approve $7.5 million in additional funding to complete the station in time for a projected opening by the end of this month. At least $3 million of that outlay will be reimbursed by the state, and as much as another $3 million could be saved if the state agrees to a deal with Blackrock Realty's Kurt Wittek to build a parking deck over the station's commuter lot.
Saxl said he willingly tendered his resignation because "the town attorney should be resolving issues, and not become the issue."
Despite the report's findings, he said he believes Flatto did have the authority to move forward with the contract revisions, adding that he finds the report "flawed" and "inaccurate."
"However, I choose not to discuss this at this point," Saxl added. "When it has run the gauntlet of the Board of Selectmen, the Board of Finance and the RTM, I'll be happy to give my perspective. I don't think it's accurate, but nobody wants to hear that right now."
The McCarter and English report confirms the town charter is "unambiguous on proper procedure" in making contractual agreements, which it found Flatto failed to do, according to the statement issued Monday by Tetreau's office.
"The independent counsel concluded that the former first selectman did not follow the town charter and consequently did not have the authority to enter into these agreements without the additional legislative approval of the Board of Finance and the RTM," the statement reads.
Tetreau said that Saxl, who continued as town attorney after Flatto stepped down in May to take a state administrative job, was asked to leave because "in light of the revelations contained in this opinion, his credibility with me and, I believe the public, has been greatly impaired.
"I have accepted his resignation as town attorney," Tetreau added.
Flatto, however, branded the report "second-guessing and hindsight, which is pretty easy, I guess." He defended his actions and said they saved the town between $30 and $40 million, "which is a huge amount of money."
He said "various lawyers on town bodies all reviewed this in 2010 and no one on the boards objected," though he said "there were one or two people that questioned it" after the fact. However, the amended agreements did not go before the full finance board or RTM for approval.
"Lawyers can come up with different opinions," the former first selectman said. "You can ask five different lawyers and you'll often get different opinions. That's what the town attorney is for; that's what bond counsel is for. You don't go to outside counsel, you go to attorneys who know your town."
In Saxl's resignation letter submitted to the Town Clerk's office Monday morning, he said he respects Tetreau's decision to ask him to step down and "as always, I place the interest of the town first."
Saxl said he enjoyed serving the town for 30 years, including 12 years as a member of the Town Plan and Zoning Commission. He has been town attorney for 12 years as well.
"It has been a wonderful journey, and I am proud of the accomplishments and the successes I have shared with so many dedicated town employees and public officials," Saxl's letter states.
Flatto called Saxl's resignation "a real shame and a real loss." He said Saxl deserves a lot credit for what he's done for the town.
Tetreau said the full details of the McCarter and English report will be discussed at Wednesday's meeting of the Board of Selectmen. The session starts at 4:30 p.m. in Sullivan-Independence Hall.
"I wanted to keep my pledge to the various town bodies to release this opinion as soon as possible in an attempt to answer the numerous questions that have repeatedly been raised surrounding the events regarding the funding of the train station," Tetreau said in the statement. "Hopefully, after reviewing the opinion, the town will be able to move forward to meet the challenges that continue to face our community."
The interim first selectman, who succeeded Flatto in May, told the Fairfield Citizen the complete report by the independent counsel is more than 300 pages long, and will be available on the town's website and in his office. "We're trying to make sure all the information is out there," he said.
RTM member Alexis Harrison, R-8, a member of Concerned Citizens, a group that had challenged Flatto's decision to remove the town's conservation staff from its environmental oversight role for the project, issued this statement on behalf of the group and its lawyer, George Bisacca: "For the past four years, the Concerned Citizens have been steadfast in exposing the failures of former First Selectman Kenneth Flatto, and now, former Town Attorney Richard Saxl, to faithfully perform their duties, to protect the interests of our town, as they were required to do under the Fairfield town charter."
She said the group is gratified its efforts have not been in vain, and called the report's findings as a "vindication of the town's faithful servant, Conservation Director Thomas Steinke who should now be re-instated to his rightful authority over the Metro Center project."
The Concerned Citizens group has battled the town since Flatto removed Steinke and his staff from the project's oversight, precipitated after complaints from Blackrock Realty that Steinke was causing unreasonable delays.