Board of Selectmen's Minutes - January 17, 2008

1 Board of Selectmen’s Meeting

January 17, 2008

Present: First Selectman Woody Bliss; Selectman W. Glenn Major; Selectwoman Gayle Weinstein; Town Administrator Tom Landry; Administrative Assistant Judy DeVito, Residents and member of the press.

This meeting was recorded and video taped and the tapes are available in the Selectmen’s office and the Building Department, respectively, for further reference.

Mr. Bliss called the meeting to order at 8:08pm

Pledge of Allegiance: Richard Miller led the meeting with the Pledge of Allegiance

Mr. Major recused himself from the discussion, because a former client, who is in litigation with the Town, requested he do so.

Interviews for candidates for the Select Committee for Legal Review

Thomas Aquila; Carl Bernstein; Lincoln Briggs; Elayne Demby; Steven Ezzes; David Fleming; Sutton Keany; Michael Klingher; Tracy Kulikowski; Robert Lesser; Robert Machson; Douglas Olin; Robert Pritsker; Dennis Tracey; William Watanabe; Ridgeway Young – There was an application that came in today from Ellen Strauss and the deadline was January 11^{th. The Selectmen decided not to accept the application because there were other applicants who were told that we would not accept late applications.}

Dr. Thomas Aquila- He has been a Weston resident for 44 years. He was Superintendent of Schools for 22 years. Prior to that he was the principal of Yale North Haven High School. He was the chairman for the Board of Higher Education for the State of Connecticut. He served in the senate under Senator Kennedy to investigate the Navajo reservation education system. He felt that he would bring some credibility to the committee. Ms. Weinstein asked if he had formed an opinion in any way. Mr. Bliss asked if he would have a conflict. Dr. Aquila said no.

Carl Bernstein- Mr. Bernstein was out of the country.

Lincoln Briggs- He is a lawyer who has been practicing law for 21 years. He practiced private practice in New York City until 2002 and has been practicing in Connecticut since. He has a private practice now, for a couple of years he was general counsel for Multinational Corporation. He is a tax expert but has a broad practice. He is available to serve the Town and feels like he has a lot to offer. Ms. Weinstein asked if his current

Law firm had any interest in becoming counsel for the Town. Mr. Briggs said no and to his knowledge there is no conflict with his firm and Cohen & Wolf.

Elayne Demby- She has lived in Town since 1995. She is an attorney but is retired from the practice of law. She practiced in New York City. She worked for Olin Corporation in Stamford. Currently she is a journalist that specializes in financial and legal topics. She is

interested in how the Town gets its legal advice and whether or not we are getting the best legal advice. Mr. Bliss asked if she had any potential conflict in the past with Cohen & Wolf. She said she never used them as her attorney and did not think she had any conflict with them.

Steve Ezzes- He has been involved in purchasing companies for the last 25 years. For ten years prior to moving to Weston he was chairman on Westport Board of Finance. He was actively involved in the financial and the legal affairs of the Town as it impacted the Board of Finance. He felt the committee should be a balance of those who provide legal advice and those that receive legal advice. Mr. Bernhard firm did provide legal advise to Westport during the ten years that he sat on the Board of Finance. Ms. Weinstein asked if he felt that there was any conflict of interest having worked on a committee before where Mr. Bernhard was the Town attorney. Mr. Ezzes said no. Mr. Bliss asked if he had any impression of Mr. Bernhard or his firm based on your work from the pass. He thought was he was very professional and very thorough.

David Fleming- He is general counsel of an oil and gas company headquartered in New York. He has been a resident for 24 years and a practicing attorney both in Connecticut and New York for 27 years. His practice is primarily on corporate practice. He has a budget of 1.5 million for outside counsel fees that he oversees. Prior to going in house in 2001 he was a partner with Cummings and Lockwood in Stamford for about three years and for ten years prior to that he was a partner at a law firm Epstein, Beck and Green in New York. Mr. Bliss asked if there was any conflict. Mr. Fleming said that he did not believe so.

Sutton Keany-He and his wife have been a residents for ten years. He has been looking for way to contribute to the town and is an EMT. He is a graduate of Yale and then went to Harvard Law School. He practiced law in Puerto Rico for four years and them moved to New York and practiced in Manhattan. He withdrew from the firm in 2006 and now had a limited assignment with the firm. Mr. Bliss asked if there would be any conflict with Cohen and Wolf. He said he has never had any contact with them.

Michael Klingher – He said that he has been a resident since 1997. He went to Weslyan College and to Harvard Law School and Harvard Business School. He is a member of the New York bar ,but has never practiced law. His whole career was spent in Investment Banking and real estate. He worked for Goldman Sachs for twenty years and left them about 1 ½ years ago and created a real estate fund. He is on the Board of the Westport Playhouse. He has no conflict with Cohen & Wolf.

Tracy Kulikowski- She is the Town’s Land Use Director for about one year. She has a planning and legal background. She has been a planner since 1990 and had to rely on town counsel which scared her so she went to law school. She has worked in communities in Ohio, Marilyn and Connecticut. She has worked for local, county, state and federal government. She worked for a law firm that represents developers. She worked in the environmental crime section of the US Attorney’s office. She wanted to be

on the committee because she has worked with Town counsel on land use issues in a variety of communities for the 17 years.

Ms. Weinstein said she see a real conflict of interest here because she works on a regular basis with Cohen & Wolf on all of the land use issues. Ms. Kulikowski said that her understanding is the committee was going to be evaluating cases that have already gone through the process and are closed and most likely she was not involved in those cases.

Robert Lesser- He went to Williams College and Harvard Law School and then became a town prosecutor in Fairfield. He was part of the attorney selection process in Fairfield. He has done just about everything. He is retired and has sued people for charging legal fees. Ms. Weinstein asked if Fairfield does the attorney selection process on a regular bases. Mr. Lesser said no that the First Selectman does. He had no conflict with Cohen & Wolf.

Robert Machson- He had been a commercial lawyer for 25 years. He has represented fortune 50 companies for 15 of those years. He hired, interviewed, local counsel and reviewed bills of major and small law firms for most of that time. He said he thought this was a good idea because it was an obvious political problem, you had to select someone to make it easier and he thought he would take a look at what we do and use that opportunity. He said the criteria for the program is unworkable.

Douglas Olin- He has been a Weston resident for five years and has two kids in the school. He is a partner at Cummings and Lockwood in Greenwich and is a trust and estates attorney solely. He attended NYU for law school and would like to be on the committee because he thought it would be a good way to volunteer. He said he is independent. He did not know of any conflict either with his firm or personally.

Robert Pritsker- He said that he went to Cornell and got his MBA from Columbia. His major was finance and accounting. He went to law school, passed the bar but never practiced. He buys old homes, restores them and sells them. His interest is to have a fresh look. He said he has some thoughts about what might be right and what might be wrong. Ms. Weinstein asked what he was hoping to gain on the committee. He cares that things are done intelligently, fairly and honestly. He did not have any conflict with the Town attorney.

Dennis Tracey- He is with the firm of Hogan & Hartson and is the Managing Partner of the New York office and the Managing Partner of all the domestic offices which is 11 offices throughout the country and about 900 lawyers. His area of practice is litigation and he represents individuals and companies. He attended Cornell University and New York University School of Law and has been practicing for 25 years. He has no conflict with Cohen & Wolf.

Keith Watanabe- He has been living in Weston for about three years. He has been in the New York area for 20 years. He attended Georgetown Law School. He was an Assistant District Attorney in the City and then became a Federal Prosecutor and went into private

practice. He has his own firm in the city where they practice labor and employment law, litigation and business and regulatory effects. He has no conflicts with Cohen and Wolf.

Ridgeway Young- He is on the Planning and Zoning Board for the Town of Weston. And is also a member of the Democratic Town Committee. He has live in Weston for about eight years and he has started to get more involved in the community. He worked for J.P. Morgan for over 10 years on their trading floor and Nations Bank also on their trading floor. He worked for Best Quotes. He wants to make sure that Weston has the best legal representation. He has no legal background and did not feel that serving on P&Z was a conflict.

Discussion/decision regarding a supplemental appropriation request of $325,000 for the design, demolition and re-construction of Cartbridge. Mr. Landry said that the Board of Finance did approve a supplemental appropriation in the amount of $325,000 to pay for the Town’s 25% share of design, demolition and reconstruction of the Cartbridge Road Bridge. The total expense is 1.3 million. The project was put out to bid and the low bidder was selected. We have the receipt of approval of grant funds from FEMA. In preparation for entering into the contract he asked the Selectmen to approve supplemental along with the Board of Finance.

Mr. Major made a motion to make a supplemental appropriation from general funds for the sum of $325,000 for the design, demolition and reconstruction of Cartbridge. Ms. Weinstein seconded and the motion passed unanimously.

Discussion/decision regarding staff recommendation to award a contract in the amount of $989,495 to complete construction for the demolition and reconstruction of Cartbridge. Mr. Landry said they opened bids two weeks ago Friday. Mr. DeCesare reviewed the bids and he did back ground check on the low bidder, who was Complete Construction and their bid was $989,495. Mr. DeCesare found everything in order and he recommends that we use Complete Construction. If the bid is awarded tonight they will enter into contract documents within a week or so. The contract calls for the work to be completed 150 days from the date of the contract which would mean the bridge would be completed no later than mid June. The Conservation Commission requires that the work in the river way be done by the end of April.

John Conte said that he is satisfied that what is there is going to complete the project and he was satisfied with the whole process so far. Ms. Weinstein said she wanted to be sure that we are really sure of whose doing the construction on the bridges.

Mr. Major made a motion to award the contract in the amount of $989,495 to complete construction for the demolition and reconstruction of Cartbridge and authorize the First Selectman to execute the contract on their behalf. Ms. Weinstein seconded and the motion passed unanimously.

Discussion/decision regarding staff recommendation to award a contract for a not to exceed amount of $146,220 for post design, construction engineering, and inspection

services related to the Cartbridge project. Mr. Landry said that he is recommending that we use A. DiCesare Associates, P.C. Mr. Bliss said that he also recommends them. Ms. Weinstein asked Mr. Conte if he really felt that we needed a full time resident engineer to oversee the project. Mr. Conte said yes.

Mr. Major made a motion to enter into a contract in an amount not to exceed $146,220 for post design construction engineering and inspection services related to Cartbridge with A. DiCesare Associates, P.C. and authorize the First Selectman to sign such contract. Ms. Weinstein seconded and the motion passed unanimously.

Discussion/decision regarding M.E.R.F. retirement program for Mark Harper. Diane Stork and Donna Werfelman. Mark Harper said that it had been brought to his attention several years ago that he had been excluded from the MERF program. He referred to the Policy and Practices document dated June 26, 1997, Section 10, Retirement Article 1. Pension Plan. In the paragraph he is isolated out as one of the members who are ineligible for the program so he called the State.

The State of Connecticut advised him that he was eligible from the date of hire to participate in the program. He would have then had the automatic deductions taken out of his pay check on a weekly basis.

Mr. Landry agreed that he was eligible but would only go back to 1998, which was the date when he was moved from part time up to his current hours of 37 ½ . Mr. Harper said he told Tom at that time that he wanted to be automatically enrolled and to also have his paycheck deducted. That he believes sparked a letter from the State of CT. retirement benefit services division dated October 18, 2004.

The letter states that the total amount indicated is a mandated payment to be made by the municipality which recovers that from the member. Based on the letter, the municipality was to pay the full amount and the Town may recover the amount from the member. Mr. Harper said the Town has created a financial hardship on him, and had this been done when it should have been, he would not have to come up with this lump sum. He feels it is unfair and that he has been discriminated against.

Based on information he received from the state and his attorney, it did not matter when he brought the information to the Town, it was still solid. He said this seems to be a pattern with the Town with regard to the MERF program. Mr. Harper said that he felt since this had not been brought to the Selectmen by Mr. Landry, that it was not possibly taken care of in a timely fashion. Because this has not been paid, he is not vested by the Town, after working for them for 18 years. He said that since Mr. Landry did not go back to 1990, when he was hired, that there are additional monies that are not listed on the letter.

Ms. Weinstein asked if this has been sitting there for 3 years unpaid. Mr. Landry said yes. Mr. Harper said that he felt this shows a pattern of employee abuse pertaining to their benefits, because it is more than just him dealing with this particular issue. Mr. Major

asked if Mr. Harper was in position to pay his portion now. He said no, and felt that the Town of Weston illegally created this hardship for him, and he wants the Town to pay the balance.

Mr. Major said he did feel that it was appropriate for the Town just to absorb a payment that should have been made by an employee. Ms. Weinstein said she felt that the Town had some responsibility in this.

Mr. Landry said upon his arrival here there were many practices that were not as stated. In the policy manual, the exempted positions were all part time positions. It was clearly the intent of the Town as stated in that policy manual not to include those positions. He said there are five employees who have come forward and said the policy does not mirror what MERS required in 1997, and they want in. He would write to MERS and whatever they say, is what we will do.

Mr. Landry said we have an option where we can pay the employee share, but we are not obligated to do so. His conveyance to all of those employees was the Town stands ready to pay their share, when the employees pay their share. MERS said that it not our obligation to pay their share. MERS has said even if we pay our share, if the employee does not pay their share, the employees will never be credited for those years of service. None of the employees have ever paid, even after those determinations were made.

Ms. Weinstein asked if they were ever told that they could have a payment plan as suggested by Mr. Major. Mr. Landry said no. Mr. Landry said no one ever requested that and he did not recommend that they do that.

Mr. Major said his recommendation is that Mr. Harper sit down with Mr. Landry and agree upon a payment plan of the employee portion which is acceptable to Mark and the Town. It needs to be memorialized in writing and once that is done, the Town then pays the full amount that is due and owing to the program. Mr. Major said that he knows that it is an interest free loan of which he has no problem as long as the employee is not unjustly enriched. It only cost the employee what they received as pay, which pay they should not have received.

Mr. Landry said his problem is if the employee left the employment after paying it back. How do we recoup that money? Mr. Major said we get a promissory note that says that the balance is due and owing at the time of retirement. Mr. Major said the Town should do the same for all five employees that are affected.

Mr. Harper said it was a mandated payment that should have been made in 2004, and how you collected the money back then was up to you at that particular time. Right now you are in violation of State codes that are listed. Mr. Bliss said that was Mr. Harper’s interpretation. Mr. Harper said that he feels the amount should be adjusted to 1990.

Ms. Rende said that the Statue states that any employee that works 20 or more hours a week, the employer is required to report those wages and hours. Mr. Harper had a copy of the policy and practices from 1994 and that section was changed in 1997.

Diane Storck said that she has the same issue. She was hired at 23 hours. Ms. Storck said she had asked why she was not on MERF and had gotten no response form either Mr. Landry or Mr. Bliss. Mr. Major said he recommends that the Town do the same thing for Ms. Storck as recommended for Mr. Harper. Mr. Major said that we wrote to the State in May and they finally responded in December and timing wise, we have been proactive in responding.

Donna Werfleman said she takes issue with Mr. Landry for not doing the things that were required of him and the Town. She has a financial hardship with a payment schedule. She felt that the selectmen should look at it further. Mr. Major asked how she could have a hardship, when there was no dollar numbers on the table. She said because of the Town’s mistake that they want to take additional funds out of her paycheck, and she does not feel that it is the Town’s determination to say what she can afford.

Ms. Weinstein asked for an explanation about the letter of April 9th 2007 which states that Mr. Landry did not sent this letter to you due to collective bargaining requirements. Mr. Landry said that Donna was a part of the collective bargaining unit, and this had gone to the bargaining unit. After a period of time they said they would not be able to work that out so do what you are going to do. Ms. Rende said the Union was not holding this up and she calls exception to that.

Mr. Landry said he told everyone when they came up with their share he would send the funds in. Donna Werfleman said she was not told until the day before yesterday. Mr. Major said that there was a letter, that Ms. Werfleman said she saw, dated May 21, 2007 that states that the Town was waiting for her payment. She said she misspoke. Ms. Weinstein asked if a payment plan would be agreeable to her. She said it would have to be very minimal. Mr. Major asked that this come back to us at the next meeting with a report from Mr. Landry as to whether he was able to reach an agreement with the parties and what those plans are.

Ms. Weinstein said she wanted to make it clear that once they reach that payment agreement then the Town will go ahead, and pay the bill in full. Mr. Bliss said yes.

Discussion/decision regarding the proposed Town cemetery- Ms. Weinstein said that she felt we did not finish the discussion. She felt it was left hanging and she was not pleased that Mr. Wolf stated that it was either Lachat or disband the committee. There were a lot of things in the report that we should talk about rather than let the cemetery committee go on as it has been. She said she had received a lot of calls about having a cemetery at Lachat. She did not want to take the property by eminent domain. She wanted to see if Valley Forge was worth exploring and wanted to see if it was on the table as an option and discuss a next step.

Mr. Major said he was very displeased with the response to the question, "would you put the properties in order of preference". He said it flew in the face of what that committee was supposed to do when they gave there response. We appointed them to be our committee to obtain information for us not to tell us either take it or we are out of here. It made the communications that we are having with the Nature Conservancy where we finally got then around to where we want them to be.

Mr. Bliss said that they spent roughly $10,000 to analyze a number of properties and he felt that to a degree we got our monies worth, but he also felt to a degree we did not. He said they did not do any prioritizations either. He is very uncomfortable with using the meadow at Lachat for a cemetery. Ms. Weinstein said she would just want the Lachat Committee to go full steam ahead at this point.

Mr. Bliss said he can call the president of Aquarian and see if they have any interest in making the Valley Forge cemetery site available.

Ms. Weinstein asked, should we take the issue of the cemetery off the table until there is suitable property either that the Town owns or can buy. She said the floundering is bothering her, let’s start at the basics.

Mr. Major said that there was a business plan and it works. Ms. Weinstein said lets look at Valley Forge. Mr. Bliss will go back and talk to the Aquarion.

Discussion/decision regarding the proposed Veterans’ Tax Relief Ordinance-

Ms. Weinstein made a motion to approve the proposed Veterans’ Tax Relief Ordinance. Mr. Major seconded and the motion passed unanimously.

Discussion/decision regarding the proposed change to the Tax Relief for the Elderly Ordinance. Ms. Weinstein made a motion to accept the proposed change to the Tax Relief for the Elderly Ordinance. Mr. Major seconded. Mr. Major said the he did not feel that we could go forward without hearing from the Board of Finance. He said that he cannot accept this as interest free. He cannot rationalize charging 4% to those people who are in need, and then say to the people that have rather a substantial income cap that there are entitled to an interest free loan.

Mr. Bliss said that he spoke to Ernie Albin who contacted all the other members of the commission, who said they wanted to get this done this year. If they have to sacrifice the interest free feature they will be willing to do that with the understanding that in a further year we might drop the interest on it. The other thing is picking an interest rate of ½ the rate on deferments.

Ms. Weinstein said her goal is to keep those who can not afford it to stay in Town. Mr. Major said he would go back to the Commission on Aging and ask them to put in an interest rate that has to be the same that we are charging on the deferment program, could be more but not less. He wants them to look at the cap on assessment. He wants to know how many homes are assessed under $800,000 and how many are over. Mr. Bliss wants

to know over the last four or five what the implications of a freeze would be. Mr. Major said he would like to see this done for the next fiscal year.

Discussion/approval of the minutes of the Board of Selectmen’s of January 3, 2008 and the Public Hearing of January 10, 2008. Ms. Weinstein made a motion to approve the minutes of January 3rd, 2008 as amended. Mr. Major seconded and the motion passed as unanimously.

Mr. Major made a motion to approve the minutes of the Public Hearing of January 10th as amended. Ms. Weinstein seconded and the motion passed unanimously.

Any other business to properly come before the meeting- None

Executive Session- Discussion regarding a document that is exempt from FOI, Morehouse field impact settlement and update on criminal investigation. There was no executive session.

Adjournment: At 11:02pm Mr. Major made a motion to adjourn the meeting. Ms. Weinstein seconded and the motion passed unanimously.

Respectfully submitted

Judy M. DeVito

Administrative Assistant

March 6, 2008