Selectman Furrier’s Questions About Ordinance Prompt Further Legal Review

By John Voket

Just a few weeks after an amendment to the Fairfield Hills Authority ordinance that sought to close a loophole regarding so-called “negative leases” was ratified by the Legislative Council, Selectman William Furrier requested further legal review to answer a list of questions he posed to his fellow selectmen August 1.

During the correspondence portion of the regular Board of Selectmen meeting, Mr Furrier issued the one-page document containing eight points. [The document is available for review at Newtownbee.com in “Source Files” under Board of Selectmen.]

“I came up with some considerable questions,” Mr Furrier said. “It’s a complicated issue. The Fairfield Hills Authority ordinance is not a regular ordinance in that it was achieved through obtaining a special act through the state General Assembly, which had an expiration date associated with it.”

Mr Furrier said the powers to change or amend the ordinance had an expiration date, and amending the ordinance “convolutes the issue somewhat.”

“The action the council has taken has created a hybridization of an ordinance that previously existed outside the domain of the town charter, and now they’ve hybridized that with a small portion of constraints that are in the town charter,” Mr Furrier said. “I wonder if the Legislative Council has passed into law an ordinance amendment to bring the process under the charter. Then by the principles of equal application of all of the provisions of the charter — doesn’t that then make it such that the entire charter is now applicable. That’s my thinking anyway.”

Selectman Will Rodgers said it is common to amend ordinances that were enabled by legislation.

“As far as the rest of it, I understand Bill’s concerns and I defer to the first selectman in terms of utilizing the resources of the town attorney,” Mr Rodgers said.

First Selectman Pat Llodra said she would ask the town attorney to attend the next selectmen’s meeting, scheduled for September 6, to provide answers or opinions related to Selectman Furrier’s questions. She also asked to clarify the final sentence in the document, which states that Mr Furrier reserves the right to “petition further state resources for additional opinions pertaining to the subject.”

Mr Furrier said in some cases the opinions sought by the town attorney have been considered de facto judicial reviews.

“I may or may not consider the opinion of the town attorney to be a final ruling,” Mr Furrier said.

Timing

Following the meeting, Mr Furrier was asked why he waited through an ordinance review process that involved two council committees and a public hearing over a period of more than a year to assert his concerns after the amendment went into effect.

He replied that “the members of the Legislative Council, our town’s legislative branch, should be allowed to do their job without undue interference, even though I would have welcomed the opportunity to provide input if I had been asked by the council or any of its committees to do so at any time during this process.”

Mr Furrier cited media reports suggesting the council was going to fix the negative lease loophole, and that the fix would stop negative leases. 

“I fully expected that the council would take action that would prevent future occurrences of any negative leases. However, as I read the language of the amendment that finally was passed by the council, I became concerned that the amendment would actually facilitate negative leases without requiring the approval of the taxpayers who are put on the hook for their costs as long as the annual budget costs of those leases fell within a certain value,” Mr Furrier said. 

He added that the final wording of the amendment approved by the council might impact the Board of Selectmen’s role in carrying out its responsibilities in a way inconsistent with the town charter and state legislation, “and thus I began to formulate questions for the town attorney to better understand what the amendment might mean for the board.”

Mr Furrier said that the questions were his alone, and not created in concert with others. Fellow Councilman Kevin Fitzgerald — like Mr Furrier, a member of the Independent Party of Newtown — told The Bee that he recalled speaking with Mr Furrier about the issue.

“Bill Furrier and others have raised concerns over the FFHA ordinance long before it was taken up by the council,” Mr Fitzgerald said. “I continued to have discussions with Bill and with others inside and outside of IPN on the topic regularly as I researched the negative lease example with the NYA at the request of the Finance Committee Chair Ben Spragg.”

Councilman Gary Davis, also an IPN member, said at a June 1 meeting he questioned whether Section 7-90 of the charter, which governs how the town handles leases, might be a more appropriate reference to include in the proposed Fairfield Hills Authority amendment than the use of Section 6-30 of the charter, which addresses Special and Emergency Appropriations. 

“I look forward to learning the answers to Bill’s questions,” Mr Davis said. 

Mrs Llodra said she hopes the issues pointed out by Mr Furrier do not undo or result in negative action related to the council’s attempt to “rectify something in the past to better protect the town’s future.”

“What is the purpose, and to what end are these questions taking us?” The first selectman asked, adding that the town now needs to clarify the connection between the ordinance and the charter. She also said Mr Furrier has the right to go to the state if he is not satisfied by the town attorney’s opinions.

“The Board of Selectmen will accept it, but he has the right to take it further,” Mrs Llodra said.