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

The town likely would have a hard time making an argument that the pair cost taxpayers millions in secretly approving the Fairfield Metro Center project, an attorney said.

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.]

Sol Briks January 05, 2012 at 10:43 PM
TJC you have a vivid imagination.. We all know about the bathrooms.. or lack of them. That is an obligation of the developer. Our new Selectman will use his powers of persuasion to get the schedule moved up for the waiting area with bathrooms. Since the project was started, the commercial real estate market has been relatively soft in this area. The economy and the commercial market is slowly recovering and I am sure we will see the vision of the developer executed. Visit Merritt 7.. in 15 years the Metro Center development will be a thriving commercial center.
TJC January 06, 2012 at 03:28 AM
Yeah, SOl. *I'm* the one with a vivid imagination... you keep telling your new friends at the Jewish Home that...
John Jameson January 06, 2012 at 04:10 AM
Mr. Briks has served on several town boards for many years. He's not Flatto. And as for those calling for a lawsuit against Flatto and Saxl as a future deterrent--its not like politicians haven't ended up in jail. It's been happening for years. Guess it's not much of a deterrent. But for those willing to spare no expense to string them up in court, don't complain when the legal bills come due. It won't be cheap.
Concerned Fairfielder January 06, 2012 at 01:15 PM
I guess FR has never been there. There are elevators accessing the overpass! FR, you are always lacking factual data on all of you posts.
Chuck E. Arla January 06, 2012 at 03:13 PM
CF, In your haste to parry FR's thrust you neglected to read or comprehend what he wrote. FR stated that we ought to have put ADA/elevators at the CURRENT station. Touche.
TJC January 06, 2012 at 03:23 PM
oh SNAP
Concerned Fairfielder January 07, 2012 at 05:45 AM
ADA compliant elevators are not required in buildings less than 3 stories or less than 3000 sq. ft./ floor. This was a limitation introduced by Republicans in committee to limit costly regulations on property owners and managers. Sorry, but I guess you will have to eat your own on this one.
John Jameson January 07, 2012 at 12:56 PM
The federal government was requiring that one of the town's stations be made ADA compliant, meaning whether it was a new station, Southport or the downtown station, elevators would be required to make that happen. It was not simply a desire for more parking that was the impetus for this project.
Concerned Fairfielder January 07, 2012 at 03:14 PM
"Requiring"? The Federal government was "requiring" -- or else what? They roll up the railroad tracks. So, according to you THEY "require" when it comes to interstate commerce, but they do not "require" under ADA? I think, I need a "required break" from all the BS!
Tom L. January 07, 2012 at 03:57 PM
As if it wouldn't have cost multimillions and been a huge disruption to somehow plop a Stamford-sized monstrosity in the middle of downtown? I do not believe the end justifies the means (the questionable deals, secrecy, etc.) but the new station is your "nice modern train station" with platforms long enough to accommodate a whole train (unlike the old one) and, so far, more than enough parking. Not to mention it is a center for development in a part of town that was previously a broken-down old foundry.
Tom L. January 07, 2012 at 04:07 PM
Fines, paid for by you and other concerned Fairfielders, that's what.
S. Frank January 07, 2012 at 04:18 PM
Tom, the reason there's plenty of parking is that the station is not being used much. I have a client in the area of the new station and he was wondering why he didn't get a pick up in business as expected when the new station opened. I had some staff people count the people getting off at Fairfield metro for a few days. Largest count was 17. Pretty expensive cost per passenger use. As you opined, an addition to the downtown station would have cost plenty, but it would have helped the struggling downtown merchants. I can't think of another City or town anywhere close to the size of FFLD that has 3 train stations. Can You? Even if the new station came in on budget there's no logical way to justify the taxpayer money that was spent.
Fairfield Resident January 07, 2012 at 05:00 PM
WTF are you Babbling about?
Fairfield Resident January 07, 2012 at 05:21 PM
Subpart D of 28 CFR Part 36 § 36.401 New construction. (ii) A terminal, depot, or other station used for specified public transportation, or an airport passenger terminal. In such a facility, any area housing passenger services, including boarding and debarking, loading and unloading, baggage claim, dining facilities, and other common areas open to the public, must be on an accessible route from an accessible entrance."
Concerned Fairfielder January 07, 2012 at 05:51 PM
NOW THERE ARE FINES? What "fines"? By what Federal Agency against whom? Is there now a "Train Czar"? How much in "fines" under which "federal regulation" ?
Lamont Sanford January 08, 2012 at 03:09 AM
Has anyone seen Pops?
jk January 08, 2012 at 12:24 PM
The town tried to get a new parking garage at the train station downtown - it was met with the Not in My Backyard mentality of nearby neighbors before it even got off the ground - what a surprise. At least the new station has taken away some of the traffic downtown which desperately needs more thinning - or maybe some intersection gridding and monitoring. Give it time - there's really nothing at the new station to attract people to that end of town - I am amazed at how many people don't even know where it is. As far as Flatto's pension goes - it should be garnished. What a big surprise that he quit shortly after he conveniently qualified for it.
S. Frank January 08, 2012 at 02:09 PM
JK, Reducing downtown traffic is not a good thing. It will only hurt, the already struggling, downtown businesses. When a business evaluates a location, one of the key indicators of a location's value is the traffic. The more the better. Look at one of the most congested cities in the country, New York. Look at the cost of retail property in New York. About the most valuable in the world. Traffic is good for business! Without it there are fewer consumers. Parking is good for business! Without it there are fewer consumers. The opposition to the downtown parking garage was, more than likely, the property owners in the Black Rock area, some of whom were involved in the town when the station project was conceived. It's done now and there's little point in continuing the debate. Bottom line is the taxpayers got screwed again.
TJC January 08, 2012 at 03:15 PM
With all due respect... I know New York City, and Fairfield is not New York City. You cannot compare retail success on Broadway to that of Post Road based on automobile traffic. I, for one, avoid downtown Fairfield because of parking and the extremely long and annoying time periods it takes to drive a half mile. I also challenge the claim that the new station has already shown a decrease in downtown traffic. We cannot make this claim in the 6 weeks or so that the station has been used in a holiday period where many people are not commuting, not working, and otherwise traveling.
Faith January 11, 2012 at 03:59 PM
Getting back to the point, Ken Flatto and Dick Saxl have been caught in a lie in a letter to the state. I served on the RTM from 2001-2011. I will volunteer to testify in a court of law that Ken Flatto came to the RTM concerning this change in contract and told us that the state mandated that the contract COULD NOT be discussed with the town bodies and must be kept confidential with the town attorney and the first selectman only. If that isn't a flagrant lie what is? I don't know that they had any other reason than to make sure that the Metro Center was completed but good rationale does not excuse breaking the law. Our former governor went to jail over a hot tub. I believe a state investigation is in order, primarily because all are equal under the law and when it is broken the courts should decide the consequences, but secondly to assure us that indeed these two former town employees did not have agendas (potential real estate holdings under other names that would increase in value when the Metro Center brings back the neighborhood).
S. Frank January 11, 2012 at 04:13 PM
Faith, I'm so glad to hear that you would be willing to step forward and testify. At least there's someone willing to help hold Ken & Dick accountable for their actions. I'm curious though as to why you or someone on the RTM would not have asked Ken for confirmation of the state's mandate of confidentiality? Ken would have had to produce some record of the state telling him it had to be kept confidential and you would have caught him in a lie at that time. If he said it was a verbal mandate, then Ken and the RTM would have had no proof the mandate existing to rely on. If someone tells me something of that importance I'd ask them to substantiate it.
Faith January 11, 2012 at 06:27 PM
At the time Ken made that statement he was still negotiating with the state and the owner of the property. I suppose that we on the RTM thought that when negotiations were complete we would be apprised of the nuances of the contract. Negotiations (I believe) were late 2009-early 2010. The RTM changed drastically in members November of 2009. In 2010 we were informed that the state had saved the town by reinvesting more money into the project. Of course the property owner did not pitch in to help. The focus at the time was that the project was saved and the state was pitching in. Perhaps we were naive to assume that laws would be followed and we would be informed if contract changes implicated the town for further investments.
John Jameson January 11, 2012 at 11:46 PM
I seem to recall Flatto making the claims that the contracts could not be discussed while they were being negotiated when the RTM and Finance Board began the investigations into the cost overruns--not when he presented the changes to the RTM in 2010. One of the same meetings where Ms. Dillon said that Kurt Wittek was the kind of person that when he walked in a room, you thought "hide your daughter." I also seem to recall very few questions being asked by the RTM in 2010, perhaps they were being naive, perhaps they were being lazy.
Faith January 12, 2012 at 02:15 AM
I specifically said that this statement was made while he was negotiating. After that Ken never specified what contractual changes or if there were contractual changes made. Perhaps we were so overwhelmed by the cost overruns. Shocked more than just naive. And anyone volunteering to stay till 1PM in the morning for no pay I would not refer to as lazy. Perhaps you wish to volunteer. I can hand in your name. One of the great things about not being on the RTM anymore is asking why in the world would anyone have my statements from 2010 at an RTM meeting be at the tip of their tongue. As for the quote, yes Kurt Wittek is a ladies man. Facts are facts.
John Jameson January 12, 2012 at 02:33 AM
You made the statement at an RTM meeting during the cost overrun discussions. I remember it because I remember everyone turning to each other asking if they really heard what they just heard. Not sure what being a "ladies man" has to do with the tripartite agreement. And staying until 1 a.m. is no guarantee that the right questions are being asked. The town didn't know about the overruns in 2010, that was when Wittek was in foreclosure and the state agreed to bond the $19 million. It was at THAT meeting that RTM members asked very few questions. Read the minutes, I did. And just cause I'm curious, what are the facts that you have that prove Wittek is a "ladies man."
Faith January 12, 2012 at 03:19 AM
Your allegation was that the RTM was lazy. My point was that 50 people who volunteer themselves to be available on a twice monthly basis, to be available up to and sometimes past 1 PM, I would not describe as lazy. And again if you'd like to give your name in, I'd be more than happy to submit it for either party. As for what my description of Kurk Wittik had to do with the discussion, our new 1st selection had made a speech describing how he had attempted to cajole Kurk Wittek into pitching in for the cost overruns after the state and town had bailed him out of his contractual obligations which through his short term "foreclosure" had managed to weasel out of. My description of his slick status in real estate is confirmed by his history of real estate felony. His similar status as a "ladies man", well he's a Norwalk boy.
John Jameson January 12, 2012 at 03:38 AM
So any guy from Norwalk is a "ladies man"? That's not a fact, though it is your opinion, and one that as a Norwalk native, I find a bit offensive. I give anyone who is willing to run for a seat on the RTM credit, however, once elected they need to do the job they ran for. In this case, I think the taxpayers' elected representatives were for the most part willing to sit back and just take what they were told at face value. That is not doing their job, and while that job may be a thankless one, it is still a job they sought out by asking residents to vote for them. Once elected, they are supposed to represent their constituents, and that means more than just showing up for meetings. It means coming prepared and doing their homework.
Faith January 12, 2012 at 02:56 PM
"He's a Norwalk boy" insinuates he is known by many from living so close in Norwalk. The original analogy was given to describe him as a businessman who is not to be trusted, who considers only what is good for himself, who will do anything to uphold his own self interests. For instance, he made it quite clear in a statement that he was not bankrupt, he had "chosen to go into foreclosure." Most people don't choose to go into foreclosure the bank does. He took himself out of foreclosure immediately after the state bailed him out. What type of a person stops paying their mortgage purposely for months to force the 1st selectman and the state to panic and bail him out when he goes into foreclosure. There are good businessmen and there are shysters. As for blaming the RTM or the Board of Finance for not being able to recognize when the town attorney and the 1st selectman are lying to the state in a letter and lying by omission to the town bodies, I think is comparable to blaming a rape victim for wearing a low cut dress. Why not blame the state for believing that the letter was truth? We did not have telepathic abilities. The information is supposed to be given to the town bodies, they are not supposed to be detectives. This is the very reason why a state investigation should be done, whether the town wins back money or not, because proper blame has to to determined by the courts rather than by individuals who blame willy nilly.
John Jameson January 12, 2012 at 04:19 PM
Never blamed anyone for not knowing when someone was lying; my issue is that I don't believe the town boards did their due diligence. As an elected official, you can't just sit back and wait for everyone to bring the information to you, you have to do your homework. And sorry, but someone can be a "ladies man" and still be a trustworthy businessman, don't think your analogy quite works.
Faith January 12, 2012 at 05:13 PM
Well if the concern is whether he is a trustworthy businessman, we knew going into the Metro Center deal that he had a previous felony business conviction. Unfortunately he owned the property. We now have his history of forcing himself into foreclosure for his own business' benefit. What is the definition of a trustworthy businessman? It's all up to which side of his business dealings you are on. On the other hand I do think that the way you handle your personal life may lead one to predict what type of businessman you will be. Don't we as Americans dig deep into each presidential candidate's personal life to predict how trustworthy they may be? I admit that there are always mitigating circumstances in each person's personal life, but often those who make excuses for their ethical behavior in their personal life will also be apt to believe that any business behavior that benefits them is ok. In hindsight I wish the RTM had the telepathic ability to recognize that Flatto and Saxl were withholding pertinent information. Often the benefit of having 50 representatives is that at least one person recognizes the flaw that exposes the facts. Unfortunately when the town uses volunteers rather than paying for legislators, they have to expect that we have full time jobs and while we pore over the information we are given we cannot be expected to do the research that a paid attorney or detective would. Should I be given telepathic powers, expect me to win the lottery.

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