BOE May Hire Attorney for Second Opinion on Wetmore ‘Section 99 Memo’ Delaying CMS Timeline

People following plans for a new Central Middle School were shaken out of their summer reverie this week.

The Central Middle School building committee, formed after the existing 1958 building was condemned in February 2022, has repeatedly fended off criticism from certain Republicans in town who say the building is too big and too costly, and when a legal opinion about Greenwich’s Municipal Improvement process was distributed Tuesday, it felt like another wrench in the plans.

Passions have flared over the project and many have said it has become politicized, especially given there is a municipal election in two months, and control of the Board of Estimate and Taxation could be wrested from the Republicans.

In February, at a standing room only BET Budget Committee hearing, Republicans Nisha Arora and Leslie Tarkington pushed back on the ed specs and said enrollment was projected to decline. “The budget defines the Ed Specs, not the other way around,” Ms Arora said.

In May, to the chagrin of the school superintendent, the Republican Town Committee chair and colleagues distributed flyers during hectic CMS morning drop-off blaming Greenwich Democrats for planning a super sized building.

Then, at the May Board of Education meeting, CMS PTA leaders vigorously defended their non-partisan nature and advocacy for students when a Republican accused the PTA of holding a secret meeting with building committee leaders, and kicking a member off the executive board.

Then in July there was an argument among Republicans at their monthly RTC meeting, when Republican Board of Education Chairman Joe Kelly insisted the Ed Specs and team model determined the size of the building. “It is not ‘super sized.’ There is no ‘super sized,'” he said. “It’s a fantasy some that people have put forward. It’s building to the proper size for students’ needs.”

While the BOE, which is evenly comprised of Republicans and Democrats, voted to approve the Ed Specs that determined the school’s size, and the Ed Specs reflect state regulations and requirements including classroom sizes for the team model shared by the other public middle schools in town, pushback has continued.

Building Committee Tuesday Meeting

This week the building committee learned of a little known section of the town charter, Section 99, that talks about the Municipal Improvement process.

Special counsel John Wetmore issued a legal opinion that landed just as the building committee was preparing to request a $42 million interim appropriation.

The memo explained that Municipal Improvement projects including schools must be approved by the Planning & Zoning Commission or the RTM, and that no action other than “studies or surveys” may be taken until that happens.

The building committee was stunned, their preparations to vote to request an interim appropriation suddenly moot.

Community Forum

At Wednesday night’s community forum at CMS, which had an unprecedented turnout of over 100, both in-person and via Zoom, and all but one of the 29 signed up to speak championed the project, including two State Representatives. Before public comment, the building committee Chair Tony Turner announced the project timeline would need to be revised given the “unfortunate news” of the previous day.

“This development will 1) delay the project, 2) increase its cost, if not materially so, and delay the move-in time for students,” Turner said.

Janet McMahon, a CMS parent, noted that the repairs made to the school’s walls and facades were temporary and “only serviceable for a period not to exceed five years.”

“I’d like to remind our community that we have less than 3-1/2 years left on the clock,” she continued. “I think I speak for many when I say the CMS parent community has had enough of stall tactics.”

BOE Retreat

The next night, at Thursday night’s lengthy Board of Education retreat at Havemeyer, town attorney Barbara Shellenberg participated during discussion of item 8 on the agenda, a CMS interim request for funds.

Laura Kostin, a Democrat representing the BOE on the building committee, asked Schellenberg to name the BET member who requested the clarification on the MI process that led to Mr. Wetmore’s memo.

Schellenberg said, “The BET member, Leslie Tarkington, approached the First Selectman – it was actually the First Selectman who then made a request to the legal department.”

“As you know, John Wetmore’s legal memo on this is directed to Fred Camillo as First Selectman. We were asked to clarify generally what the MI process is,” Shellenberg said. “There was a feeling that perhaps there were a number of people who were involved with various buildings projects that did not necessarily have all of the information about what the Charter actually requires. That’s how it came about.”

She recalled it was maybe in July that Ms Tarkington asked for clarification.

Schellenberg described Mr. Wetmore as “intimately familiar with the MI process and the charter interpretation” and said his Aug 31 memo to Republican First Selectman Fred Camillo was circulated to 74 individuals including BOE members.

“The memo sets forth the requirements of Section 99 that no action that the making of studies or surveys shall be taken by any town agency – the BOE or housing authority – on various proposals and there is a list that includes this building committee project, until such proposal has been submitted to and approved by the (P&Z) commission or has been approved by the RTM.”

Her statement landed with a thud.

“You’re saying is that any building committee or the BOE cannot request funds from the town until we have an MI in place granted by P&Z?”Kelly asked.

“That is what the charter requires – except funds can be appropriated for studies and surveys,” Schellenberg said.

Reublican Michael-Joseph Mercanti-Anthony asked whether last June’s unanimous vote to request an interim appropriation for the Old Greenwich School interim appropriation was out of order?

Schellenberg said she was not aware specifically of where that project stood with the MI process.

“I’ve gotten some inconsistent information about what has happened in the past,” Schellenberg continued.

And while she described Mr. Wetmore as the expert on the MI approval process, she said past examples were not relevant because she said, “the language of the charter is clear.”

BOE chair Kelly pressed again. “I believe the $70 million allocated for this project was allocated without an MI. I’m saying past practices were inconsistent.”

BOE member, Christina Downey, a Democrat who is also an attorney, suggested the BOE seek a second legal opinion.

“This memo was provided to Fred (Camillo) as the client. But the BOE is separate from Fred as an entity. I’d query whether we are in a position where we should be retaining our own counsel to get an opinion because this is an opinion of one lawyer,” Downey said.

Shellenberg balked.

“To bring in outside counsel here is a waste of money,” she said. “There is no other interpretation that makes sense.”

Ms Downey noted that recent projects – GHS vestibule project, Cardinal Stadium project and New Lebanon School – all had full appropriations prior to MI.

“Clearly, if there’s been screw ups along the way, that’s one thing, but I think there is perhaps an open interpretation to it given those projects have all moved in that process,” Downey said, noting that Section 99 predated all of the state construction office requirements for the building committee as an entity for the BOE.

Section 99 dates back to 1951 which predated the town having a building code.

Ms Stowe agreed.”I would say it’s prudent for our us to retain our own counsel.”

Superintendent Dr. Toni Jones said staff weren’t even sure when an MI was necessary, and for example, said her understanding was there was no MI when the Eastern Middle School front entrance was upgraded for ADA access.

“Traditionally we have not had MI’s for projects like that,” she said, adding she would go back and check to see which projects had MIs.

Ms Kostin said, “‘No action’ has typically and historically meant no shovels in the ground before MI.”

She said Mr. Wetmore’s opinion referenced three previous opinions, but declined to provide details on them.

“I find it hard to believe that is a collaborative posture on the part of the town attorney’s office,” Kostin said.

“This is not an issue of transparency,” Schellenberg said. “It is an issue of attorney-client privilege.”

“Just because they are cited in the opinion by law, that does not destroy the privilege of the document,” she continued. “It’s not quite as simple as you think it is.”

Chairman Kelly balked.

“Hearing the reaction that we’re not going to be allowed to have a second opinion, that annoys me.”

Karen Hirsh agreed.”If we as a board decide we want other information and we are being told that we can’t, that is a concern to me.”

Ms Kostin said the board was well capable under its policies and procedures to seek a second opinion. She referred to board policy 91-25 enabling them to appoint or either on a full time or retainer basis to serve as the board’s attorney.

Schellenberg said that might indeed be policy, but “the Charter controls.”

Mr. Mercanti-Anthony asked, given Section 99, whether the board should be appropriating anything in the capital budget for projects.

“Good point. We can’t do a capital budget? We have to have MI for everything going forward, so our capital budget is zeroed out?” Chairman Kelly asked, adding that was all the more reason to get a second opinion.

As for where the CMS project was in the MI approval process with Planning & Zoning, the building committee had a very positive pre-application review with the commission in July, and, Mr. Turner said the plan was to return to the commission on October 17.

“That is the next P&Z meeting to which the professionals feel they can have all the documentation ready to present for MI status.”

The BOE took no vote on requesting an appropriation Thursday night.

Friday Building Committee Special Meeting

The next morning, Friday, the CMS building committee had a special meeting where they spent much of the hour talking about Mr. Wetmore’s opinion and how to proceed with the school project.

Dennis Yeskey, who is the building committee representative from P&Z, said “We’re going to need community support. We’ve been getting it. One or two neighbors can stop an application, and that’s happened many times.”

Rachel Stockman Koven, who was appointed to the committee as a non voting member whose role was to listen to meetings and report back to the residential neighborhood surrounding the school, asked why Wednesday’s community forum hadn’t been canceled given the Wetmore memo.

Turner replied that while the legal memo had significant legal impact on all projects in town, planning for the forum had been underway for a long time.

In fact, he said it was smart to have had the forum and another forum or update should be planned once the cost projections and timeline are revised to reflect delays “on the runway for MI.”

Ms Koven then questioned whether the committee had proceeded in a legal fashion, given the memorandum.

“If they were illegal, I promise you, we would definitely know it by now,” Turner said.

“We did nothing improper,” said vice chair Clare Kilgallen said, adding, “We did it to update the community because we finished schematic design and had an important update to give them because had gone through the reconciled budget and the value engineering.”

Koven pressed on.

She asked about reconciling the amount budgeted ($112 million) and what was allocated ($70 million).

“If we keep going down a route for a building a building that’s a certain price and we don’t have the money to do that, will it be wasted resources designing something that we can’t get paid for?” she asked.

“We will ask for the interim funding for that amount assuming the BOE recommends we move forward, after we get MI status,” Mr. Turner replied.

“My big worry is if it gets denied or they don’t agree to going up to that amount, then we have spent a lot of money designing a building we can’t pay for, and we’ll have to redesign it,” Koven said.

There was consensus on the building committee of not wanting to “pause” to focus on just the MI approval process, but rather to proceed with both design documents as part of the “study and survey” process and the MI approval.

Joe Rossetti warned that pausing to focus on the MI would add expense and slow down momentum.

Reached for comment Friday, BET member Leslie Tarkington, who chairs the Board of Estimate and Finance budget committee, said she is frequently asked questions about process, including about Municipal Improvement, which she described as “a decades-long land use process used to protect both Town taxpayers and neighboring residents of a proposed project.”

Tarkington suggested volunteers on boards, commissions and committees make themselves familiar with the Charter.

“The Town operates with a flat organization governed by the Town Charter.  The Charter is available on-line.  No printed copies have been available since 2006.  With that as background as Budget Committee Chair, I am frequently asked questions about process, including that about MI.

While Wetmore’s Aug 31 memo was widely circulated just as the building committee prepared to seek the interim funding from the BET, Ms Tarkington said the process to consider Municipal Improvement had begun back in June and that the memo was circulated to approximately 80 individuals.

Tarkington said she made her inquiry in June and assured that it “was not targeted at any one project.”

Dan Quigley, former RTC chair and parent of a 4th grader at Julian Curtiss School, reached out to say that parents want certainty so that they can plan ahead for their children.

“This legal opinion only adds to the uncertainty of families of future CMS students. There is massive support for this project among CMS and its feeder school families,” he added. “The only opposition has come from local Republicans, especially from the RTC and the BET.”

Lastly, he said, the legal opinion form Mr. Wetmore would also delay addressing CMS until after the November election.

“So, when some suggest that this was politically motivated, it isn’t hard to see why. As a parent of a potential future CMS student, this is a disappointing and frustrating development,” Quigley added.

First Selectman’s Statement

On Friday Camillo issued a statement that talked about looking forward and applying the Wetmore legal opinion to all current an future school projects.

See also:

CMS Building Committee Votes to Request Interim Funds from BET, Town Attorney Appears to Invalidate Vote Sept 7, 2023

Speakers are Impassioned during Fourth Central Middle School Forum Sept 7, 2023