After last night’s sometimes contentious Board of Selectmen meeting, what has been “a longstanding process” of the Bd. of Selectmen⎯board members giving the first selectman their authority to sign and execute contracts in the name of the board ⎯has turned into something at least one current member of the board no longer wants to let keep happening without more precise clarification.
Selectman Michael Kaelin staunchly objected to the practice both generally and specifically in regard to a resolution that was on last night’s agenda. During the meeting, the board was going to consider such a resolution related to contracts for the Miller Driscoll building project.
The resolution that first selectman Bill Brennan wanted to propose would, “authorize Wilton’s first selectman to sign and execute all construction, architectural, subcontractor and vendor contracts on behalf of the Town of Wilton for the M-D School Renovation Project, subject to review and prior approval by the Town’s Construction Manager, Wilton Building Committee, and Town Counsel.”
The discussion brought out a packed house of public observers and inspired some heated exchanges between the selectmen as well as between selectmen and the public. It also inspired a scolding of the board from State Senator (and former BoS member) Toni Boucher, who delivered an impassioned and inspiring plea for the board to better consider every decision related to the M-D project and its impact on town morale.
At issue was the appearance that the resolution had been added to the agenda unexpectedly, and was interpreted by some in the community as a power-seizing move on Brennan’s part in the last days of his term as first selectman. In addition, the board’s makeup will face a major transition in three weeks, following today’s election and a change in administrations as of Dec. 1. Not helping matters was that the M-D project has been at the center of a litigious dispute, with one of the major complaints by detractors being a perceived lack of transparency by town officials with the public.
For others, including Kaelin, the resolution was seen as a move that would remove the selectmen’s right and responsibility of performing duties they’d been elected to perform.
Ultimately, a vote on the resolution as written was blocked, and the board decided to call a special Bd. of Selectmen meeting on Thursday, Nov. 5 at 7:30 p.m. to give BoS members as well as members of the public time to review pending contracts on the M-D project that are in need of signatures by a looming deadline. It also will allow Kaelin, in consultation with Wilton’s town counsel Ken Bernhard, to draft a resolution with which he’s more comfortable.
What’s so Urgent?
The resolution’s appearance on the agenda was a surprise, according to Kaelin. At least three of the selectmen reported not having known about it until last Friday, Oct. 30 at the earliest, when they received the materials in advance of the BoS meeting. Also on the agenda unexpectedly was a presentation from the Miller-Driscoll Building Committee.
At the core of the presentation by Bruce Hampson, the co-chair of the Miller-Driscoll school project, and Ty Tregellas, the project’s manager with Turner Construction, were several contracts with the major construction trade subcontractors that needed to be signed in order for the project to move forward and stay on schedule. Tregellas detailed how the trade subcontractors had been selected, which followed a prescribed, bidding and contract-awarding process as predetermined by the state (so that Wilton could still be eligible for state reimbursement). “We have very little discretion,” he said.
At several points in the meeting, Tregellas and Brennan asserted that the contracts needed to be signed “urgently” in order for the project to stay on schedule. Because some of the earliest work involves demolition and abatement of hazardous material, it has to be done when school is not in session. It’s been scheduled to start during the upcoming Thanksgiving and winter breaks and Turner has laid out a plan based on such limited time windows.
“It’s unfortunate, but it’s the plan we outlined a long time ago,” Tregellas said. Adding to the urgency was that Turner had been hoping to review the contracts earlier but events on the Turner side had delayed that by at least two weeks.
Brennan and Tregellas both reiterated several times that if the contracts don’t get signed according to schedule and the project gets delayed, it would add cost to a project that is seen by many to already be too costly.
Also noted was that the 13 contracts up for approval represent approximately $26 million of the project’s total price tag.
During the meeting Kaelin expressed that he wasn’t expecting such contracts to come up for approval until later in the month, based on previously supplied contract outlines from the committee.
Fireworks between Selectmen
Right from the start, there was friction at the board table. Selectman Ken Dartley made a motion before the meeting got underway to completely table the vote on the resolution until the next meeting. He said he received “more than 40 emails and phone calls urging me to vote ‘no’ on that item.”
Brennan responded that deferring it would have consequences, and that discussion needed to happen because the public needed to understand why the item had been put onto the agenda.
“It wasn’t put on the agenda for Brennan to make a big brash super power control, I’m on my way out of here. We put it here so people would understand the reason for it. We need to have a discussion and consider it,” Brennan said, adding, “there has been a lot of misinformation and misunderstanding. It was put there for a purpose, [not] to create a big hoopla.”
Kaelin said the ‘hoopla’ was because people were caught off guard by the unexpected appearance of the approval vote on the agenda.
“The reason there’s a big hoopla, and why so many people are here tonight, we fully expected, I fully expected, what had been communicated to us, was that the building committee would be presenting contracts at the mid-November meeting. The questions everybody has are, Why did this get moved up to this meeting? Most importantly, why are we delegating the authority to the first selectman to sign contracts before the contracts have been presented to us. I am not going to give anyone blank check to sign contracts that I haven’t reviewed and approved.”
Clearly upset, Kaelin later added, “The explanation I want to hear is how [the building committee] set up a schedule so that I couldn’t review and approve and consider the contracts before voting.”
Dartley’s motion to push the resolution to the next meeting failed, with only Kaelin and Dartley voting to table it.
Once the selectmen moved into discussion about why the contracts needed to be signed, Tregellas and Hampson explained that the essential agreement between the town and all of the contractors was the same, and that it was a document that has been reviewed with the town counsel and used on many projects, including the Comstock renovation. “It’s something that has been used for years,” Tregellas said.
Dubow reiterated that saying, “this is a longstanding procedure, practice that goes back years,” and adding that the language in the contract and the process is much the same as it was dating back to when the town first engaged Turner Construction on the Middlebrook renovation project. Tregellas noted that Bernhard had “tweaked some of the language” over the years but that it was essentially the same.
Brennan pointed out that the same process–authorizing the first selectman to sign contracts–had been used on many other building projects, including those at the High School and most recently in January with the Comstock renovation project. “It allows the effective administration to get the contracts signed and get the vendors to sign them and get going on the project.” He also noted that Kaelin had voted to approve the authorization in January for the Comstock project.
At issue for Kaelin is that the process was preventing him from upholding what he views as his responsibility in his role as selectman, and that the public is also being hampered from seeing the information as well.
“My concern, is very simple: I believe I have a legal responsibility to all the voters and people in this town to review and approve these contracts; minimally, reviewing means reviewing, I should be able to see the contract and review them. Also, I’d apply common sense, minimally the way that the BoS should review and approve contracts–and if this hasn’t been done, it would frighten me–is that the building committee should come to us with a list of who the contractors are, not just the bid package. They should provide us with notice of this before the meeting, and importantly provide the general public with it. So that it’s part of the agenda… how much we’re paying and where the contracts are if I would like to review them. That seems like the reasonable process. The reason I have a problem with tonight, is that I don’t have the opportunity to do that and, more importantly, the public doesn’t have the opportunity to do that.”
Kaelin reiterated his desire to make sure the board keeps the public informed. He has asked that documents be placed in the town clerk’s office for people to be able to access them, as well as online. He also asked that mention of the special BoS meeting on Thursday be posted on the town website, noting he would not approve anything without the public being able to access the materials.
Despite being warned by selectman Dick Dubow that the town runs the “considerable risk” of escalating costs, Kaelin said he’s acting to prevent the similar kind of town disagreement that has happened thus far on the Miller-Driscoll project.
“If you do this as you’ve proposed, you’re going to be in litigation. Let’s not rush the process at the expense of more trouble down the line,” Kaelin said.
The two disagreed again later in the meeting, when Dubow reiterated that the authorization process has been a “longstanding practice of this board and community, that goes back over at least three first selectmen.”
Kaelin scoffed at that suggestion, saying, “How is that persuasive? ‘We’ve done it before so it must be right?’”
At one point, following a comment made by Dubow, Kaelin asked him, “Are you really that glib about it?” to which Dubow replied, referring to the discussion as a “charade.”
Kaelin and Brennan also raised their voices with each other in frustration. When Brennan again pointed out that Kaelin had voted to approve the same authorization in January for the Comstock project, saying, “You’re making a mountain out of a molehill,” Kaelin shot back, “Stop saying that! You’re comparing apples to oranges, I did have the opportunity to review the contracts and I did review them then. This is common sense. That before we approve contracts, before you take away my right to approve contracts, I ought to get to see them and the public ought to see them.”
Town Residents vs. Town Officials
There were exchanges between residents and town officials as well, which ranged from impassioned to confrontational.
Mohammed Ayoub, an architect who has spoken at town meetings previously, challenged Turner Construction’s Tregellas, suggested that claims about cost escalation from delays were exaggerated. Ayoub stated that he has worked with Turner on several projects and that estimated escalation figures Tregellas was quoting were higher than what Turner typically cites. Despite “supporting the M-D project,” he questioned why the project couldn’t be slowed down until some of the issues were worked out.
Anthony LoFrisco challenged Kaelin’s fears that signing the resolution would be illegal. “Why are we going to have another whole review of contracts, as I understand it they’re all the same. People have gone through it, if the public wants to see it, let them go see it. You have the power to appoint the first selectman. Some things are tough. If you start getting into a public hearing, you’re going to go crazy. You’ve got a job to do, you’ve got enough votes to do it. Why postpone it and risk getting charged more money in order to get some people to come in who are never going to be satisfied. If you’re not doing anything illegal.”
LoFrisco also told Kaelin that his legal argument about having a fiduciary responsibility to the town’s residents was “hot air.”
Simon Reiff said that following the parent meeting about the Miller Driscoll project, “many, many, many parents contacted me, who complained and were very concerned about the environmental risks posed by this project.” Stating that no contingencies have been built into the project for weather delays, he couldn’t understand why the project couldn’t be delayed and pushed back to start in the summer.”
Al Alper, whose email about the issue prompted much of the public concern over the authorization resolution, said any selectman who voted to approve the resolution would be abdicating their responsibility to the residents who elected him or her.
He referred to two seemingly conflicting sections of the Town Charter–C-17 and C-15–saying that while the former “gives [BoS members] the authority to effectively abdicate their responsibility…,” the latter “…is why we vote for these people. We vote for them to give us oversight. I’m not voting for anyone who would give away their right to oversee my money, by giving it away to someone else. The reality is, you are voted into those seats. This is nothing personal Bill, this transcends you, to the next selectman for however long they sit there. The language of the resolution, Mike is spot on–it is absolutely all encompassing.”
He added that the resolution is too broad. “This doesn’t narrow the scope to items of urgency…for the entirety of the project, the first selectman has the absolute, unequivocal right to sign every contract. The language could not be clearer. There is no limiting language in that resolution. I’m not in favor of you abdicating your responsibility. If you want to give away your obligation to me your signatory right to review and sign, you shouldn’t be asking for my vote. I should be giving it to them. For that reason alone you have an obligation to review on my behalf, that’s why you get my vote or not.”
Brennan responded to Alper by saying that they have differing opinions and he didn’t agree with how Alper characterized the situation by using language including the word ‘abdicating.’ “But I respect your comments and your right to say them.”
Peter Wrampe echoed Alper. “If someone would tell me they would abdicate their responsibility to the first selectman with 24 hours notice, I would say I would never vote for you again. I would say you are not fulfilling your fiduciary responsibility to me. Where there’s smoke there’s fire. To simply give Bill the right to sign contract for the whole project, if it were one by one after you’ve reviewed them one by one, I’d have no problem with that. But by God, I’ve elected you to review them.”
In an impassioned plea that earned her applause from several members of the public gallery, State Sen. Toni Boucher took the selectmen to task.
“Some of us here are more concerned about the process. For those of us here, because an alert was given that you were going to act on a measure that is very concerning. More importantly, I’m very disappointed in the process, I’m very disappointed in what’s happened to this board. Because people have to come out en masse it seems like lately, because the tenor of the town has been changed so much. It’s not what’s ‘legally right,’ it’s considering what you’re doing to the tenor and the morale of the town. You should be ultra sensitive right now about this project, and about the foment and the concern, and want to build bridges but more importantly bring up the morale and make people feel included and respected and listened to, for their opinion, rather than hoping to get your attention. It shouldn’t take this kind of group to come here in order for you to do the right thing and consider… Hats off to Michael Kaelin, who is a great supporter of this project, has stood on moral and ethical ground at his own expense to try to do the right thing. Please consider the good feelings in bringing the town morale back to where it was. It’s very disappointing to see so much strife and conflict and you all can change that right here on this board by making sure the process is a good one by listening to people and make them feel that their opinions are respected.”
Where the BoS Left Everything
With Kaelin holding his ground that he believed authorizing someone else to sign a contract on his behalf would be illegal, he maintained that he “couldn’t and wouldn’t vote for the resolution under any circumstances asking me to delegate responsibility. I won’t vote for this resolution under any circumstances.” He did say that he’d be prepared to vote on a contract by contract basis, however.
Town counsel Ken Bernhard was consulted, and he told the selectmen that “none of them were wrong.”
“You’re all my clients, and you’re asking me to pit one against one another. You’re all right. Mike is right, he has a fiduciary obligation he doesn’t want to ignore, and it requires him to take on, and he wants to review the contracts, and I can’t say he’s wrong,” adding that the charter does allow for delegation of such responsibilities.
He added, “Your responsibilities are as you individually perceive them, and you are under no obligation to abdicate them or assign them or delegate them; you have every right to retain them. But I don’t think you are in any way violating the law should you agree that the process we’ve used for many many years where you have experts, all have the same agenda, to do a good job, bring a project in under budget, within time, safety is a paramount concern, first and foremost.”
Brennan was eager to make a concession to Kaelin and schedule a special meeting on Thursday evening, giving the BoS members time to review the contracts.. He reminded the board that the resolution isn’t worded just for his administration but that it is worded for current and future, and it covers the first selectman elect. He said that documents would be put up onto the website and made available in the town clerk’s office.
Eventually, a motion to approve a special meeting this Thursday night to individually review the urgent contracts that can’t wait was introduced and passed. In addition, Brennan said that he’d make sure all newly-elected selectmen would be invited to attend.
He also asked kaelin to draft a resolution he’d be comfortable with.