Reed School Lawsuits

Appear Closer To Resolution

By John Voket

Local officials and the lead attorney representing Newtown in proceedings against Haynes Construction Company of Seymour are tight-lipped over the status of clashing lawsuits because at press time for this edition of The Newtown Bee the cases were still active. But a trio of recent motions moving a settlement appropriation indicate construction-related claims against the town, and a counterclaim related to a subsequent fuel oil leak at the Reed Intermediate School are nearing closure.

In recent weeks, executive sessions among the Board of Selectmen, the Legislative Council, and the Board of Finance have all yielded unanimous votes to approve a $150,000 settlement in the civil case. And on February 6, the council authorized the Board of Selectmen to settle the comprehensive litigation in exchange for approved settlement documentation.

The special appropriation to settle the matter will come from the town’s Reserve for Capital and Non-Recurring Account.

While negotiations between all parties involved, and the determination of which parties will receive part or all of the $150,000 have been conducted privately, several town officials, including finance board chair John Kortze, indicated attorney and Newtown resident Monte Frank is handling the matter expertly.

“The town is in good hands,” Mr Kortze said when contacted Wednesday about the matter. “Monte Frank is pursuing every level of relief for the town. As the finance chair, and as a taxpayer I feel very confident he is pursuing every possible avenue [to resolve the suit].”

With a May trial date looming, it is likely the parties are aggressively moving to complete any negotiations if a final settlement can be achieved out of court, said another source close to the case.

The history between the town and Haynes Construction dates back to 2001, when the regional firm won the low bid to become contractor for the 5/6 school on Wasserman Way. At that time, The Bee reported David Valerie of Strategic Building Solutions, LLC, a facilitator on the project, found mixed reviews about Haynes.

Most of the concerns involved what were described as “typical construction problems” that were usually addressed by the company’s owner Paul Haynes.

At the time Haynes had been taking on successively larger projects, and many of the problems could have been attributed to what Mr Valerie called “growing pains.” The construction company received good reviews for its work on the Kensington Green assisted living facility in Southbury, as well as a police station and community center the company built in Farmington.

During that background check, the consultant also developed concerns over a job Haynes was doing at the Manchester Community College, but he reported the problems were not major.

The Project Commences

Haynes ended up the lowest of nine bidders for the school project, coming in at $22,123,000, nearly $4 million less than was budgeted. Following demolition of a former Fairfield Hills building, the future Reed Intermediate School site was prepped and construction began in early July 2001.

While the beginning phase of the construction rolled out routinely, by March 2002, the school board was not happy to be hearing about a second change in Haynes supervisory personnel for the project. Following the departure of original project manager, Bill Sullivan, who left in mid-November 2001 to pursue other avenues, the board learned that assistant project manager Lisa Mendes also left Haynes to also pursue other opportunities.

Just a week after Ms Mendes was replaced by Minh Mai, who had been working with the firm as a project manager for several years, the town Conservation Commission was threatening a cease and desist order on the 5/6 school project. Officials were reporting that Haynes had failed to prevent silt from flowing into neighboring Deep Brook following a major rain storm.

This was the second time silt had made its way into Deep Brook, a natural trout hatchery, since the project’s inception. Heavy rains in September 2001 released sediment from the site, killing an unspecified number of trout that breed in the tributary of the Pootatuck River.

That incident brought Department of Environmental Protection officials to investigate. The DEP returned March 5, 2002, to inspect the site and again found violations, this time due to a plug malfunction in one of the basins following a rain storm two days earlier.

Things were relatively quiet until the fall of 2002, as construction neared completion and Haynes crews were working overtime to meet a December 1 (2002) deadline to avoid a $3,000 per day liquidation penalty. Acknowledging that some work would likely be completed after a certificate of occupancy (CO) was issued, Evan Pitkoff, the school superintendent at the time, said he expected Haynes to meet its deadline to complete the project.

Close, But No CO

The first week of December, however, Haynes’ latest project manager, Michael Douyard, went before the school board indicating the company had not yet received the CO. One week later, Mr Douyard severed his employment with Haynes, leaving a company executive John Rhodes to complete the project.

This marked the fourth time Haynes had replaced key management personnel on the project.

The first week of January 2003, Dr Pitkoff joined the first few students getting off the bus to explore the brand new facility on its opening day. But within a month, the school board learned that Haynes Construction was continuing to work on punch list items. The 90-page punch list document originally issued when the district took possession of the building the previous November had been whittled down to five pages.

In March, the first of two major incidents occurred at the school as an air handling system in a mechanical room dumped an estimated 1,000 gallons of water into the upper level near the library media center. At that time, Haynes crews were still working to eliminate the remaining punch list items required to sign off on the project.

Two months later, an industrial hygienist recommended the fan room and air handling system that were affected by the leak be investigated to determine if they were the primary source in making Reed Intermediate School students ill and keeping them out of new classrooms.

The consultant conducted tests to see if any microbial growth was visible, which could contribute to the complaints of itching and rashes among some students.

Haynes Contracts Out

As tests continued, Haynes Construction announced it would contract the services of an outside firm to deal with any remediation required. By the second week of May, replacement of the sheet rock from the floor to the upper deck between the classrooms and corridor wall was proceeding.

Contractors also replaced sheetrock on the school’s lower level where water may have pooled, creating a possible mold infestation. At the same time, Haynes continued to pursue resolution of the punch list along with outside work on fields and the playground area.

By mid-December, the punch list was completed and the CO was issued, nearly one full year after it was promised by Haynes officials. The day-to-day operation of the Reed School progressed without further significant incidents for just over one year.

But on December 29, a heating fuel spill was discovered, in which an estimated 4,000 gallons of #2 heating fuel was released. The spill resulted in approximately 50 gallons of fuel finding its way into Deep Brook, again fouling the pristine trout spawning ground.

It was soon determined that a mechanical failure in the boiler room allowed the fuel to escape from the building. That fuel oil traveled underground and reached a sanitary sewer line surrounded with crushed stone.

The seeping fuel entered that crushed-stone packing and followed the sewer line for about 1,400 feet until the sewer passed beneath Deep Brook, where the fuel rose to the brook’s surface and was then noticed. In the following weeks, the town designated $1.2 million for the fuel spill cleanup work.

In May 2005, former first selectman Herb Rosenthal announced the town would enter mediation with the firm or firms that participated in constructing the school. The contract that the town entered for the construction of the school required such mediation in seeking to reconcile disputes, Mr Rosenthal said.

Subsequently, federal environmental officials reached a settlement under which the town was forced to pay a $5,000 cash fine and an additional $10,000 toward two environmental projects as a result of the oil contamination to Deep Brook and the surrounding environment.

According to the state judicial case database, on July 11, 2006, the town filed a civil suit against Haynes, Frank T. Palmer & Co., Connecticut Concrete Form, Inc, JJ Concrete Floors, Inc, and G&D Mechanical, Inc. The site indicates the last matter of business in that case occurred on January 17, 2008, when the plaintiff, Newtown, disclosed an expert witness.

Two weeks later, on February 4, selectmen met in executive session to discuss legal matters and reconvened with Selectman Rosenthal moving to approve the settlement that was recommended by Mr Frank regarding Reed School litigation and the acceptable draft of settlement documents.

Reporter Andrew Gorosko also contributed to this report.