4 Big Agenda Items for BOS Special Meeting Wednesday: Likely Settlement in Lowthert v. BOE Lawsuit, COVID Tax Deferment Extension & More

Summer isn’t sleepy for Wilton’s Board of Selectmen, at least not this week. The selectmen will hold a special meeting on Wednesday, July 15, to consider four big agenda items–not least of which is a likely settlement in a lawsuit filed in 2015 by the Lowthert family against the Board of Education, the Wilton School District, the Town, and several town and school officials.

On the BOS agenda for Wednesday’s special meeting at 8 p.m. is an item, “Discussion and Possible Action on Lowthert, et al. v. Wilton Board of Education, et al.” [Editor’s note:  Watch the BOS Special Meeting via Zoom at 8 p.m.]

The special meeting will follow an executive session of the board scheduled for 7 p.m.; the executive session agenda also lists the case as an item for the BOS members to discuss.

Confirming the likelihood that settlement is near are entries on agendas for the Board of Education executive session and special meeting scheduled for Thursday, July 16. The 6 p.m. executive session agenda says the BOE will “discuss … strategy with respect to the [Lowtherts’] pending civil action”; the agenda for the BOE meeting at 7 p.m. indicates a settlement is even more probable, with an action item that reads, “Discuss and Approve: Settlement Agreement resolving, among other matters, the civil action captioned Lowthert, et al., v. Wilton Board of Education, et al.” [Editor’s note:  the 7 p.m. meeting is open for public viewing via Zoom.] 

It’s not the first time Wilton officials have contemplated a settlement in the case. The town’s three primary boards (Board of Finance, as well as BOS and BOE) had been discussing a likely settlement to the lawsuit back in late January, just before the COVID 19 outbreak. The trial part of the case had already started in front of Stamford Superior Court Judge Edward Krumeich in early December, with one day of jury selection and three scheduled days for a preliminary “Porter Hearing.” The parties had been due back in court for the trial to start on Jan. 7, 2020, but, according to the court’s case-flow coordinator, attorneys for both sides had requested the trial be put on hold as they met to discuss “rescheduling or whatever comes next.”

The lawsuit was filed by Marissa and Christopher Lowthert on behalf of their children in November 2015 against a long list of town officials and entities:  the Wilton BOE; Wilton Public Schools; the Town of Wilton; former schools’ superintendent Dr. Gary Richards; former Miller-Driscoll School principal Cheryl Jensen-Gerner; former BOE finance director Ken Post; former BOE chairman Bruce Likly; and former first selectman Bill Brennan.

The Lowthert family–both parents and the two children are listed as plaintiffs–asserts that the two children suffered as a result of being subjected to poor indoor air quality as students at Miller-Driscoll Elementary School between 2011 and 2013. They argue that for years, even before the Lowthert children were students at Miller-Driscoll, multiple Wilton officials knew about leaks, wet building conditions, mold and other environmental hazards in the building yet did nothing to protect students from conditions that led to the Lowthert children’s exposure and resulting illnesses.

Motions filed by the Lowtherts detail injuries they say their children sustained as a result of the environmental hazards at Miller-Driscoll: respiratory symptoms including chronic congestion; cognitive symptoms; asthma; building-related illness; mold allergy; allergic symptoms; nosebleeds; headaches; sore throat; nausea; behavioral changes; insomnia; fatigue and loss of appetite, among them.

The lawsuit also alleges that “due to their exposure in the building, both children now suffer from asthma.”

Court documents show that the Lowtherts’ son began kindergarten at Miller-Driscoll in Aug. 2011 and attended through Nov. 22, 2013; their daughter began attending preschool there in May 2012 and eventually attended kindergarten beginning in Aug. 2013 until Nov. 22, 2013. After that date, the Lowtherts withdrew the children from district schools.

Court documents filed in the case indicate that school officials or their representatives had made prior settlement negotiations or offers to the Lowtherts “at some point in 2014.”

Two years after the Lowthert children were pulled out of the district by their parents, Miller-Driscoll School underwent an extensive renovation project, from late 2015 until Sept. 2017. The project involved the replacement and repair of significant structural elements, including new roof sections, windows, flooring, ceilings, and more, as well as new construction of a portion of the building. At the time, town officials readily admitted that structural problems–including roof leaks and aging mechanical systems such as HVAC–were a major impetus for the renovation project, which eventually cost the town approximately $35 million at its conclusion.

Attorneys representing the town and individual defendants in the lawsuit have been actively working on the lawsuit since 2015; the first legal team for the town was part of Litchfield Cavo LLP; the current firm, Howd & Ludorf, took over the case in 2017. With more than 300 motions, preliminary court orders and decisions, filings, and thousands of pages of evidence, the case has already been a costly one.

The plaintiffs have asked for thousands of pages of records (e.g. emails, reports, etc.) and at times have filed contempt motions and complaints asserting that the school district has not turned over all the requested existing documents. In addition, multiple depositions of current and former town officials as well as other witnesses have been taken not just in Connecticut but all around the country.

It’s likely that legal fees racked up by both sides since the case began amounts to multiple hundreds of thousands of dollars.

As town officials have discussed before, the town’s legal costs are covered by insurance. Any potential amount awarded in a lawsuit against the town typically also would be handled first by the town’s insurance policy. However, Wilton’s policy dating back to the time in question limits coverage for awards in incidents involving environmental claims to $25,000. Town officials would need to determine how any settlement amount above that cap would be handled by the town.

Other Items to Be Discussed:  Deadline Extention for Coronavirus Property Tax Deferral; Allocating Excess Budget Savings to Paving; and Collective Bargaining Agreements 

There are three other important items on the agenda for the BOS to discuss at Wednesday’s special meeting.

  • Discussion and Possible Extension of Deadline to Apply for Special Coronavirus Property Tax Deferral:  Adhering to an executive order by Gov. Lamont, the BOS adopted a program that allows a 90-day deferral of any taxes on property to eligible taxpayers–individuals, businesses, non-profits, and landlords–who have been significantly impacted by the COVID-19 crisis. There was an application deadline of June 15, but according to a memo from First Selectwoman Lynne Vanderslice, approximately six residents contacted the town about wanting to file but said they didn’t know about the deadline. Vanderslice is recommending that the BOS approves reopening the application period from July 16 to July 31. Taxes are due on Aug. 3.
  • Discussion of Allocating Excess BOS FY2020 Budget Savings to Road Paving Operating Expense Budget:  Vanderslice says the town anticipates additional savings from the FY2020 budget, beyond savings that had been identified in May and used by the BOF to reduce the FY2021 mill rate. She is seeking approval from the BOS to reclassify any additional budget savings to the FY2020 operating budget line item for road paving. Doing so, she wrote in a memo, will free up bonded monies and allow the town to perform additional paving. As of now, Vanderslice reports that all authorized bonded monies will likely be spent by early September.
  • Discussion and Possible Action related to Collective Bargaining Agreements:  Vanderslice’s memo did not detail specifics that will be discussed related to town employee contract agreements.

Members of the public can view a live stream of the meeting via Zoom. Anyone wishing to submit public comment can do so by emailing Second Selectwoman Lori Bufano (include ‘public comment’ in the subject line). Public comment emails will be read and reviewed during public comment periods at the beginning and end of the meeting.

Correction:  an original version of the article incorrectly stated that the FY2020 savings would be applied to the FY2021 paving budget; it actually would be transferred to the FY2020 budget if approved.