Attorney: Fairfield Shouldn't Seek Damages from Flatto, Saxl

Fairfield may consider bringing a lawsuit against two former town officials for in finalizing an agreement with the state on a controversial $40.8 million capital project, but probably shouldn’t, an attorney said Wednesday.

Former and former knowingly failed to notify municipal bodies such as the Board of Selectmen and Representative Town Meeting in reaching an agreement with the Connecticut Department of Transportation on building the —though the pair told the state they had, according to Richard Vitarelli, an attorney with McCarter & English, a Stamford firm.

For that, Flatto could be sued for reaching an agreement “he was not authorized to enter into” by Town Charter, Vitarelli said, and Saxl may have committed legal malpractice.

However, “It isn’t clear just what to sue for,” Vitarelli told more than 20 people gathered in a conference room at for a Board of Selectmen meeting, .

“There may not be much there to go after, just generally speaking from a damages assessment,” he said. “If you get a big recovering, are the individuals or their insurance carriers going to have the wherewithal to pay, assuming the town is successful in that type of thing? I wouldn’t imagine.”

For many, the project itself never would have been undertaken, as drawn up, if all town bodies had had proper opportunity to review the town-state agreement. According to Vitarelli, because the state in good faith received assurances from Flatto and Saxl that in fact Fairfield had fully supported the project, the contract entered into is legally binding.

Fairfield also faces a practical problem should it seek to recover via lawsuit what some estimate as $6 million in lost revenue by way of a so-called “binding letter agreement” that no town bodies outside of Saxl and Flatto—not the Board of Selectmen, Representative Town Meeting, Board of Finance or anyone else—had seen.

The problem is this, Vitarelli said: Presumably, Fairfield would argue that if the town had known about the agreement, it never would have moved forward with Fairfield Metro as sketched out, meaning any would be null and void. If that’s the case, the town could not realistically argued that it’s owed money from parking revenue.

“There is a proof problem there, to prove whatever duty was breached,” Vitarelli said. “So I think that’s a place the town will have to grapple with. Litigation is a difficult thing for a small town like this. One thing I would ask people to consider is: Would you want to go and bankroll this type of thing? When you bring these types of claims, if you get into some of this, the [attorney-client] privilege gets waived. And there are some things left for being done under the cloak of privilege.”

Vitarelli and his firm are responsible for investigating what went wrong with the process of approving the Fairfield Metro Center—a project , among other problems.

Specifically, according to Vitarelli's report, Saxl is accused of deliberately withholding documents from town bodies at a crucial stage in the approval process.

The pair later would claim each thought the other would disclose those documents, Vitarelli said, and that they didn’t believe in any case that the documents in question would have a material effect on the project’s outcome.

For much of Tuesday’s meeting, First Selectman Michael Tetreau and Selectmen James Walsh and Cristin McCarthy Vahey circled round the same questions regarding process and just what Flatto and Saxl said in their own defense.

Here are some excerpts from what Tetreau, McCarthy Vahey and Walsh had to say in summary following Vitarelli’s presentation:

• McCarthy Vahey: “Thankfully, we do have an operating train station which is a wonderful thing. How we got here has been troubling in certain respects and I think the critical thing for me is that we may not choose to take specific actions from here based on this but what’s absolutely critical is that we learn the lessons of the very significant mistakes that were made along the way.”
• Walsh: “I think it [Fairfield Metro] is a great idea but the problem is that just because the ends or what were trying to get to was a great thing, that does not give people the ability to avoid the Charter, keep documents private, or carbon copy people on this Board of Selectmen to make it seem to the state like were supporting it. That’s a huge problem. There seems to have been a mindset by the prior administration that under no circumstances did they want to take this agreement to any other town body, or let them know about it.”
• Tetreau: “You grew up in this town, you watch what happens in DC, in Hartford, you watch some of the scandals and think ‘No that’s up there. In Fairfield we’re different.’ … There was no approval process for the contract. There was no approval process for the binding letter. No one disclosed the change in terms in dealing with parking. We may disagree about where the authority was, but if you don’t show us the agreement, we can’t disagree. If you don’t show us that something changed, we can’t disagree ... I can’t believe top two officials in town would say, ‘We won’t disclose this because someone might challenge our authority.’ ”

[Editor's Note: This article has been updated to more specifically attribute actions described in the attorney's written report.]