A lawsuit over payment for design work on a sewage treatment system is the latest firestorm between the current and former administrations in Elizabethtown.
Engineering company Barton & Loguidice, who provided engineer services to the town for its proposed sewer project, filed suit in Essex County Court on Sept. 4, contending that the town owes them $154,964 for services rendered.
Town Supervisor Margaret Bartley said that as of Monday, Sept. 23, the town had not received notice that the suit had been filed.
“As of (Sept. 23), the town has not been served with the lawsuit,” she said. “It is the hope of the current town board that a negotiated settlement will be reached so that the town can move forward with the sewer project.”
Bartley said that the last time she and the town had spoken with the company, both sides were still looking for a settlement on the claim.
“On Sept. 6, I received the following message from B&L’s attorney via our town attorney, which said: ‘B&L is hopeful that a negotiated resolution of this matter can be reached in the near future and stands ready to provide whatever information the town seeks in order to do so. However, I needed to file suit to protect B&L’s rights. It is not my intention to prosecute the suit so long as negotiations are continuing,’” Bartley said.
The suit stems from a Notice of Claim sent to the town by Barton & Loguidice in August of 2012, seeking $154,964 for unpaid bills from 2009 to 2012. Since that time, Bartley said negotiations have been ongoing between the town and the company.
According to Bartley, the town received a state DEC Grant for $1 million to pay for the cost of designing a sewage treatment system. In 2009, then Supervisor Noel Merrihew signed a $585,000 contract with Barton & Loguidice, a fixed price agreement for engineering, design, easements, environmental studies, bidding and grant administration. Between 2009 and 2012, Bartley said the town paid $765,000 of the grant, which exceeded the negotiated contract by $180,000.
Merrihew, who is running against Bartley for the position of supervisor in the November election, said all payments were approved by the DEC, which acted as funding agency.
“There were no requisitions ever submitted by my administration that were not reviewed, verified and documented in a positive sense by the DEC,” Merrihew said. “Not only were our eyes scrutinizing the billing, but it was always re-reviewed and only then were those funds released to us by the DEC and then we would pay the contractor.”
Bartley spoke about why she stopped payments to Barton & Loguidice.
“After I became supervisor in 2012, I questioned the excessive payments on this project,” Bartley said. “In May, Barton & Loguidice asked me to sign an amended contract, which had no price attached. I refused to sign the contract because I did not want to commit the town to additional unknown costs. I notified them that they should stop work on the project until all the financial questions could be answered.”
Bartley added that, to date, the town has not received any construction plans, easements or building specs from the company.
As for the lawsuit, Bartley said that questions would have to be addressed to the previous administration.
“I can understand why members of the previous administration, especially Mr. (Ken) Fenimore and Mr. Merrihew may be worried about a lawsuit,” she said. “Over $750,000 of state money was spent while they were in office and the town has not received any construction plans, easements or building specs. The questions that would be raised, both in court and by the DEC would be Mr. Merrihew’s to answer. Four of the current town board members, including myself, were not in office during the five years that the DEC grant money was spent and the unpaid bills were incurred.”
“The DEC is the funding agency that oversaw the entire process and viewed all of the financial arrangements and all of the invoices and expenditures and then approved and paid for them,” Fenimore said. “They had the sole fiscal responsibility for the project. The town was just the middle man. There is two separate contracts between DEC and the town and DEC and Barton. I have absolutely no concerns for any misallocation of funds for the project because the DEC oversaw all of it.”
“I have intimate knowledge of everything that happened prior to me leaving as public record shows,” Merrihew said. “All this smoke and mirrors with saying that it is the previous administration’s fault, the public record is my defense. The DEC would not have released the funds if they felt it was not proper.”
Both Fenimore and Merrihew said they hoped that the pre-construction project would have been allowed to be completed so the physical work on a sewer system could have begun.
“What stopped the projects were the unilateral actions of the town supervisor as a direct result of her venture into alternative sewer system plans,” Fenimore said. “A project that was nearly complete should have been allowed to finish, which she said was going to happen back in February. Once she was told that alternative plans would not be funded, she chose to terminate the previous plan and told Barton that they would not pay anymore for it.”
“This project is about 95 percent complete and it needs to go forward,” Merrihew said. “My hope is that in January, I would want to be able to try and re-negotiate with the agencies.”
Bartley said that as part of the negotiations, she had digitized seven years worth of records between 2007-2013 and made them available to Barton & Loguidice as well as the public (etownny.com).
Bartley said that she has been questioned about the lawsuit over the past week, which was posted at the Elizabethtown Post Office and given to The Valley News by Fenimore. In April, Fenimore posted town financial information at the Post Office that he had received through a Freedom of Information Act request, prompting the town to change bank accounts.
“I do not know how Mr. Fenimore obtained a copy of a lawsuit that the town has not received,” Bartley said. “The only money available for a settlement is the balance of the grant money, which must be approved by the DEC.”
“The paperwork was filed with the Essex County Clerks office,” Fenimore said. “That information is available to the public by Freedom of Information Law.”