This is a printer-friendly version of an article from Zip06.com.
10/13/2020 04:00 PMIt started with an exchange in the Westbrook Tax Collector’s Office.
Don Harger, the town’s volunteer hearing violations officer, was seeking information about a resident who’d been issued a traffic ticket and claimed he’d received a letter from the town absolving him of paying the fine. The resident said he had lost the letter.
Harger, together with then-Resident State Trooper Wayne Buck, went to the Tax Collector’s Office with some questions. Tax Collector Kimberly Bratz took offense, Harger said, and told him that what he was asking was none of his business.
Harger submitted his resignation to the Board of Selectmen (BOS) on July 9.
Apparently with the aim of looking more deeply into the matter, the BOS twice tabled Harger’s resignation, finally addressing the situation at its Sept. 24 meeting held via Zoom.
It was then that it began to be apparent that the town was issuing municipal tickets for traffic violations.
Questions about the Process
The packet of materials for the meeting included copies of daily transmittal lists with the names of individuals cited by police for moving violations for the year 2020 through Aug. 11. (This information, Buck said at the meeting, should not be publicly available, though the Connecticut Freedom of Information Act defines records of law enforcement agencies as public records except in narrow instances, such as protecting the identify of juveniles or of informants or witnesses during an investigation. At press time, the documents listing the names of those cited were still accessible on the town website.)
For the first part of 2020, 98 tickets were issued and 94 had been paid, according to a memo to the BOS by Bratz dated Aug. 12. Four had been appealed; of those, one was nullified and two were paid. According to the memo, estimated revenue from the tickets was $4,900.
A discussion ensued about the process used to collect the fines and whether the accounting should be moved to the police department. Selectman Hiram Fuchs, who is a state marshal, was insistent on getting the particulars down, wondering why unpaid tickets were not making their way to Connecticut Superior Court, which they should, according to state statute.
Ultimately, the BOS elected to request that the Town Attorney Duncan Forsyth, look into the issue and elucidate the board on the proper process and roles of town employees and volunteers.
At the next BOS meeting on Oct. 6, Forsyth stated that he’d reviewed the town’s handling of citations, town ordinances, and state statutes and had had “a hard time making them mesh.”
Buck had retired on Sept. 25; Resident Trooper Ben Borelli, Forsyth said, “was of the firm belief that as many violations as possible should be handled by way of a state infraction, especially the moving violations.”
He had also spoken to the state’s attorney in Middletown, Michael Gailor, Forsyth said.
“It is Mike’s very strong opinion that any moving violation should be handled by way of a state infraction,” Forsyth said.
Borelli suggested that even parking violations, often the purview of municipalities, be “handled by state infraction,” Forsyth continued. “Basically, everything could be moved to state infraction or, at the very least, all moving violations could be sent to the state...then just leave parking violations here in town.
“It is my recommendation, it’s Ben’s recommendation and it’s the strong recommendation of the state’s attorney’s office that, at the very least, all moving violations go” to the state, Forsyth said.
A Question of Legalilty
Fuchs was puzzled.
“Were we allowed to issue municipal tickets?” he asked Forsyth. “Because I’m of the understanding that your findings were that we are not authorized to write moving violation infractions.”
“I don’t know the answer to that,” Forsyth said.
He then cited town ordinance Sect. 11-43 (c) which states, “When a ticket is issued for a violation of a Connecticut State Traffic Commission Regulation, State of Connecticut tickets will be issued and the amount of the fine will be determined by State Traffic Commission, and such fines shall be payable to the state.”
“So even our ordinance says that we’re not supposed to” do this, Fuchs said, and asked under whose authority the effort began, and where the tickets came from.
No one in the meeting provided specifics as to when town tickets were first approved and/or used. At the Sept. 24 meeting, Bishop suggested that it began in 2014 and asked Bratz and Finance Director Donna Castracane for confirmation. Both agreed.
Yet there are references to “town tickets” at Police Advisory Board/Traffic Authority (PAB) meetings as far back as 2012.
A discussion at the Dec. 10, 2012 PAB meeting resulted in a motion “to send a letter to the resident state troopers requesting that town tickets be used when applicable.” The discussion and motion imply that the town tickets were already in existence.
Harger was a member of the PAB at the time of inception.
“We spent an enormous amount of time drawing up what this town ticket was going to look like,” he said. “It listed moving violations on it. It listed where the money was going to be collected. It listed who was going to collect tickets.
“We sent it to the town attorney and they came back and said everything was fine,” he continued. “That led us every one of us to believe this ticket was legitimate and we were doing things the way it was supposed to.”
Bratz also said she was involved in the process of designing the tickets. She worked with the town attorney as well as Buck “with what needed to be on there.
“It was all legal,” she said. “We never did anything without consulting the attorney.”
Bratz said the PAB oversaw the process and that it got approval at a town meeting. Harbor News searched for an agenda or minutes for a town meeting at which town tickets were addressed but was unable to find one.
Pat Marcarelli, president of the Westbrook Council of Beaches, weighed in as a resident, saying he “was there for all the meetings.
“They did it through Trooper Buck,” he said. “They did the research through [then-town attorney Michael] Wells that yes, the town has the authority to write certain tickets and that the town would benefit from the income.”
The idea, Marcarelli said, was to “give our constables the right to write a town ticket, which lessens the burden on our taxpayers. Yes, they’re fined, they’re getting a ticket, but they’re not getting a $150 a ticket, they’re getting a $35 ticket, and the town receives the funds.”
Marcarelli estimated that the town receives around $10 per citation from the state; Bishop said he believes it’s $20.
The fine associated with town tickets was $50.
Fuchs took issue with Marcarelli’s explanation.
“Just saying we weren’t getting enough revenue and we wanted to give our officers the ability to generate more revenue—that to me is not a justification for us for breaking the law.
“Has anything changed in the last six years that would have given us authority then and not now?” he asked Forsyth.
“I just haven’t been able to connect the dots to understand what took place way back when [to result in] this process being implemented,” Forsyth said. “How it came to be and what the process was and on what authority it was. I just haven’t seen that information.”
Selectman John Hall suggested that Fuchs “go back and look—you’ll find in the BOS minutes that this happened a number of years ago when [Democrat Chris Ehlert] was on the BOS with us.”
Ehlert served on the BOS from March 2011 to November 2015.
“We were presented with the opportunity to have town tickets,” Hall said. “We were not getting a lot of money from the state. We felt the state was not even sending us the share we were entitled to because of bookkeeping.
“And we wanted a more affordable way to slow the speeding down in our town, which is the biggest complaint we hear about traffic in Westbrook,” he continued.
The town attorney, traffic authority, and troopers all looked into the proposal “and we were advised to do it,” Hall said. “If this were illegal, we would have been told at the time.”
Hall added that Forsyth said it could be illegal, not that it is illegal.
“So don’t stretch it that far,” he said to Fuchs. “I think we’re doing things totally above board and legal. We don’t do anything underhanded in this town and I’m a little offended.”
The town got the best advice it could at the time, Hall continued.
“This was all done in public hearings just like this one,” he said.
Bishop also expressed concern and consternation that Fuchs had suggested that the town had done something wrong, saying it could end up on social media. He asked Fuchs to retract his statement so that it didn’t appear in the minutes.
“If everybody was acting upon the advice of town counsel...I don’t think anybody did anything wrong and I’m not pointing the finger at anybody,” Fuchs said. However, he said, “unless attorney Forsyth can find some justification for us doing that, I would stand by my conclusion that we’ve been doing something that we’re not legally allowed to do.”
The meeting minutes did not include Fuchs’s statements. They stated only: “As directed, attorney Forsyth provided an update on state statutes and town ordinances relative to tickets. The BOS had an extensive discussion on same. In accordance with attorney Forsyth’s review of the issue and consistent with his recommendation to the BOS, Bishop made a motion that moving violations and parking violations will be handled via state infractions. Hall seconded the motion. The motion passed unanimously.”