OSWPCA: Sunshine / Letter to Michael Pace 20Jan10

Text facsimile

---------------------------> Joel R. Anderson

                             13 George Drive
                             Old Saybrook CT 06475-2636
                             860 388-9858
                             20 January 2010

Michael Pace, 1st Selectman
Town of Old Saybrook
302 Main St
Old Saybrook CT 06475

Dear Selectman Pace:

Re questions on the integrity of the 11Aug09 vote in Old Saybrook establishing a Wastewater Management District (WWMD).

Who is qualified to vote on an issue is an important public question. This question was raised in several Letters to the Editor in local papers prior to the vote on 11Aug09 that established WWMD.

It was the general perception among opponents of the WWMD that if the vote were confined to property owners within the proposed WWMD, and Trustees of properties within the WWMD, that the WWMD would been defeated by a wide margin. Therefore, who, precisely, was eligible to vote was of great interest and importance. Who was eligible to vote was important not just to opponents but also to the executive branch, proponents of the WWMD for sewer avoidance (for reasons I fail to understand).

The public concern at the time was answered by elected officials (according to news reports) along these lines (paraphrasing), "We have secured a legal opinion saying that voters outside the proposed Wastewater Management District (WWMD) are qualified voters, and that properties held in Trust inside the proposed WWMD have no vote. The vote will proceed in accord with the legal opinion received."
   It's not my intention to put words in your mouth
   with the above paraphrasing: I will publish any 
   correction to my misperception that you supply.

With the integrity of the vote in question, it's best not to be vague. The legal opinion should have addressed 1) why voters outside the WWMD had an interest in the outcome of the vote, and 2) why Trustees of properties within the proposed WWMD had no interest in the outcome of the vote. I have my own opinion (Appendix #1) which, coming as it does from someone not a lawyer, you and any sensible person should ignore. I supply it solely to illuminate the non-lawyerly thinking that prompted this letter so you may better reply should you see fit.

I would like to receive copies of 1) the legal opinion on who was eligible to vote, and 2) any written memos or correspondence that illuninate why the Town was requesting the opinion, between the Town and its lawyer(s), and correspondence within the executive branch, and 3) after the opinion was secured, any written correspondence to or from anyone concerning the opinion.

With the Water Pollution Control Authority about to let contracts to turn over dirt, your prompt publication to the Town website of my requested documents (treating it as a Freedom of Information request), would clarify the issue of the legitimacy of vote establishing the WWMD and all else proceeding from it.

If the vote to establish the WWMD was not legitimate, the WWMD is void, the rotten fruit of a poisoned tree.
                             Very truly yours,

                             Joel R. Anderson
Hon. Richard Blumenthal, Attorney General
Office of the Attorney General
55 Elm St
Hartford CT 06106

NB: This letter is posted to my website, 

Appendix #1: Sourcing a voting crowd to approve the WWMD.

I, Joel Anderson, am not a lawyer. If you take any of what I have written below as legal advice you are a fool. This Appendix is only to inform the Old Saybrook executive to how I arrived at writing my letter requesting the legal opinion regarding who was eligible to vote for or against the establishment of the Wastewater Managment District.

Prior to the vote establishing the WWMD (and approving a bond issue at the same time to pay for it), Letters to the Editor raised two issues about the upcoming vote: 1. Why were voters outside the proposed WWMD permitted to vote on an issue that didn't affect them personally, and 2. Why were Trustees of properties within the proposed WWMD not permitted to vote the interest of the properties held in trust?

Both these issue were dispelled by a legal ruling (which I haven't seen). I am not a lawyer, so consider the following assumptions as to why the vote was allowed to proceeed in the light of that. If you're getting legal advice from me you are a fool. (That isn't legal advice!)

The legal opinion MAY have been based on these 3 premises:
1. Because voters outside the proposed WWMD were being asked 
   to PAY to remedy 'pollution' within the proposed WWMD, as 
   evidenced by the bond issued to be voted on simultaneous 
   therewith, they MUST be allowed to vote because it affected 
   their pocketbooks.

2. Because voters outside the proposed WWMD COULD at some 
   future date be themselves subject to a WWMD, they MUST be 
   allowed to vote on establishing the WWMD law of the Town.

3. Trustees were not allowed to vote because they weren't 
   voters, nor did they own the property, they were merely 
What can a NON-LAWYER say about any of the 3 (above)?
#3 (above). What would the legal opinion say were ALL the 
   properties in the WWMD in the hands of custodian Trustees? 
   Can voters outside the WWMD deprive properties inside the 
   WWMD of their Ordinance 75 rights without so much as a 

#2 (above). Because voter outside the proposed WWMD 'COULD' be 
   subject to the WWMD at some future time is not sufficient 
   reason to give them a vote on whether or not to establish a 
   WWMD. Lots of things 'COULD' happen in the future. We can't 
   be going around permitting people to vote on theoretical 
   events of which there are no end. Voters outside the WWMD 
   were being permitted to make law that ONLY applied to other 
   people, not to themselves. That this could be even 
   marginally legal boggles the mind. It would be like 
   establishing a restrictive Historical District without the 
   consent of the properties within the proposed District.

#1 (above). Voters outside the proposed WWMD could vote to 
   establish it because they were being asked to PAY.

   A fundamental of the many representations and presentations 
   made by OSWPCA, and the political leadership of Old Saybrook to 
   anyone who cared to listen, was that a WWMD WAS CHEAPER THAN 
   SEWERS, and because we Old Saybrook residents would have to PAY 
   for sewers it was better to pay less than to pay more. In other 
   words, an event that hadn't occured, a vote to put in a sewer 
   plant, was allowed to dictate eligibility to vote in the 
   present: eligibility was a back-formation from a non-event.
What's wrong with this picture?
   Under eminent domain, polluters causing an injury to the public 
   health can be made to PAY. If there's an adverse public health 
   issue within the boundaries of the proposed WWMD, then those 
   who are causing the adverse public health issue can be made to 
   PAY. So why are voters outside the boundary of the WWMD being 
   asked to PAY? Their property (their pocketbooks) are being 
   robbed to PAY for an adverse health event they had no hand in 
   causing, and under eminent domain aren't required to PAY to fix.

   Eminent domain, and who can be made to PAY, caused a Catch 22 
   for the political leadership in the run-up to the vote. 
   Without voters outside the proposed WWMD being able to vote it 
   was a virtually certainty that the WWMD would not be 
   established. A political decision was taken that the legal 
   ruling WOULD enable voters outside the proposed WWMD to vote, 
   on the basis that voters outside the proposed WWMD would have 
   to PAY. Even though under eminent domain they didn't have to 
   PAY. That they MIGHT have to pay for a sewer plant would mean 
   that they WILL have to pay? Who knows where money will come 
   from in the future? This is an exhibition of magical thinking, 
   an early crossing of a non-existent (future) bridge.

   Eminent domain (who PAYs) and future participation 
   (theoretical) in a WWMD so conflated, the vote went ahead 
   to its inevitable outcome.