By Mike Brodinsky
Epitaph: The dispute between the Wallingford Electric Division (WED) and the Connecticut Municipal Electric Energy Cooperative (CMEEC) is over.
After almost 4 years of complex litigation, the arbitrator, through a series of rulings, has finally judged all of WED's claims and all of CMEEC's defenses. He instructed the parties to compute the damages CMEEC owes Wallingford based upon his rulings, and both sides have complied.
The computation was presented to the town council on Tuesday. The town is clinging to the pretense, however, that the resolution of the case must remain a secret for an indefinite length of time.
Based upon documents already made public, however, the damages will be in the vicinity of $3,700,000.
Wallingford will remain responsible for its own legal fees and other costs of over $2,800,000.Wallingford officials, however, may also describe future savings as a result of these orders, but that's not part of any arbitration award. And they're not verifiable.
The dispute started in 2013 and formal arbitration proceedings have been ongoing since April 2015.
Wallingford has alleged that it has been overcharged through the years, in some cases since 2004, in connection with almost all of its many contracts with CMEEC.
It asserted, however, that it didn't know about these billing issues until it prepared to terminate its relationship with CMEEC in 2012-2013. Only then, WED claims, did it become suspicious. As the arbitrator's rulings reflect, some but not all of WED's claims had merit. Some, but not all of CMEEC's defenses had merit, too, and CMEEC has always denied any wrongdoing.
Based upon published reports going back to 2015, some councilors apparently felt that CMEEC had intentionally engaged in scurrilous conduct.
Some may still make that claim at their own peril. But, based upon my reading of hundreds of pages of briefs and orders and the like, I think the better assessment is that these contracts with CMEEC, generally speaking, were so technical, vague, convoluted, and uncertain in meaning, that the PUC and staff at the Electric Division couldn't administer them.
They got themselves into contracts that, in some instances, they didn't understand. And in other cases, reasonable minds could differ over what the contracts required. As such, the contracts were litigation prone right from the start.
As time went on and as periodic payments to CMEEC were made, WED staff failed to discern some of the claims that might have been made. By the end of 2012, most of the claims were too old to be enforced.
After that, even months after high-end counsel was retained to examine these issues and handle the separation from CMEEC, more time went by without formal protests to CMEEC about its charges.
Thus, still more opportunities for recovery were lost because contractual deadlines were missed yet again. That is a testament to how difficult it was for everybody involved, including CMEEC, to understand the contractual rights, obligations, and billing issues.
This was a self-inflicted wound, however. The take-away here is that, as a general rule, successful contracts do not end up in court.
They are clear. They are complete. They can be readily understood and applied by those folks who are expected to administer them.
Contracts fail if they are so complicated and filled with such dense legal language that only lawyers can interpret them. That's looking for trouble.
It is no wonder then that the town has gone to extraordinary lengths, including its comments on Tuesday, to be closed-mouth about this litigation.
Hiding behind the mantra that it won't discuss legal matters in public, despite the volumes of public records, the town has kept the lid on.
It maximized the use of executive sessions to keep the truth out of view. The council has been complicit.
This secrecy was not intended to keep confidences from CMEEC for CMEEC has known from the beginning just about all there was to know about this matter.
It has been well aware of Wallingford's handling of the case, its evidence, its arguments, and its strategy. Wallingford residents were the only ones kept in the dark.
The excessive secrecy, therefore, was intended primarily to protect town officials from embarrassment and from stumbling over their own words.
That has worked. This matter probably will never again be brought up in a public meeting.
Now, it's questionable whether anyone really cares anymore. So, my compliments to the PUC, town council, and the Dickinson administration — well played!
Mike Brodinsky is a former Wallingford town councilor and host of “Citizen Mike,” on WPAA-TV.