At last night's City Council meeting, Public Works Commissioner Anthony "Skip" Scirocco said he worked entirely off legal advice from the city attorney when he agreed to sell water to Wilton.
"I don't blame you, Skip," Accounts Commissioner John Franck told him at the City Council table. "It sounds like you got bad legal advice."
Attorney Joe Scala penned a legal analysis of the city's contract with Wilton in November to justify the sale of water to Wilton. Last night, he got up to defend himself at the Council meeting, but said essentially the memo is his opinion.
That memo uses a few sections to justify the sale of water to Wilton. Paragraph 5(A) which states, in part, "the potable water so supplied shall be used primarily for the domestic water use of the structures (his underline)." Paragraph 8: "The city, if permitted by all necessary Federal and State of New York regulatory agencies, agrees to sell the Authority an additional supply of potable water amounting to a daily maximum supply of 519,300 gallons per day at an average daily usage of 252,250 gallons per day." As well as paragraph 10 which states "no potable water supplied by the City to the Authority will be initially distributed by the Authority beyond the use specified in paragraph "5A" herein or when the approvals required by paragraph "8" are obtained."
After all of those, the memo says "Clearly the current proposal falls well within the boundaries of the terms of the agreement."
The memo does not address the fact that the "domestic" use cited in paragraph 5(A) is specifically referring to domestic use within commercial structures (that was my emphasis). That line, actually, prompted Franck to say “The Twinkie defense holds more water than this. It was pretty clear it was supposed to be for commercial (use).”
That analysis was supported by Peter Tulin, who was the city attorney at the time, as well as both Bill and Tom McTygue, who were at the head of the Public Works Department at the time, have said the intent was commercial use.
My big hangup in my reading of the contract was paragraph 8, which was included by Scala, which says: "The city, if permitted by all necessary Federal and State of New York regulatory agencies, agrees to sell the Authority an additional supply of potable water amounting to a daily maximum supply of 519,300 gallons per day at an average daily usage of 252,250 gallons per day."
While that paragraph was later amended to cut the amounts in half, it also never mentions whether it has to be for commercial or residential, which made me think they left the door open for more general water sales.
Tulin, though, said "that section never mentions commercial or residential because by paragraph 8 it's clear you are talking about commercial sale."
That would be supported by a later section when the contract says pretty clearly that to sell water the Authority needs to notify the city of: "The name and type of commercial use for which the facility or structure which is being supplied with water will be used."
Anyway, Scirocco said he will be willing to discuss it further, and while he said he considered putting up another contract, he did not commit to that at the Tuesday night meeting.