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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.]

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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