The Rye Public Safety Building

Is the matter really 'settled', and at what cost?

Victor D. Azzi

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The editors of the Portsmouth Herald have performed a worthy public service in their timely editorial of March 14, 2007, wherein they comment on the Press Release regarding the  “Settlement Agreement”, so-called, related to the quagmire of the still-continuing saga of malfeasance and incompetence demonstrated by Rye town officials in their secret dealings with architects and contractors involved in the creation of the Rye Public Safety Building (RPSB) in the Rye Town Center.   

The editors, in their headline, claim that I, Victor Azzi, have been “vindicated”, and I must admit that it feels good to hear them say that.  Countless others, in this Town and beyond, have been telling me that as well.   However, I believe that this matter, from the very beginning, has not been and should not have been about me.  It is and should be about how the people’s business is being conducted secretly and at great cost in this small town. It is about lies, fabrications, threats, secret back-channel dealings, cozy relationships, and press releases and “news” articles designed to protect the perpetrators of this fraud.

For reasons known to some of us, the Selectmen and those few who curry their favors have chosen to try to vilify and demonize me.  I can deal with that and, should I deem it necessary, will deal with them.   I take no satisfaction knowing that someone has stolen something from this Town.   Some of us, with professional honesty and transparency, have worked pro-bono for years to help this Town.  We promised to deliver an architecturally-distinguished, durable, energy-saving, institutional-quality building, on-time or early, and within the voter-approved budget.  Instead, the Selectmen and their cronies have delivered a shoddy piece of work, very late and still not finished, and at a cost over budget by an amount that is still being kept from the taxpayers and residents of Rye.

The situation is even worse than that portrayed by the Portsmouth Herald in its editorial, and certainly much worse than that recited by the unquestioning “soft” news articles that appear to be apologetic of the perpetrators of this fiasco as this “Settlement” was announced.  Even the process of proclaiming the “Settlement Agreement” by the Rye Board of Selectmen (BOS), on the evening of March 5, 2007, was flawed and corrupted.  The document, as well as the process, was a sham.

Then-chairman Joe Mills proudly announced that a “settlement” had been reached among all of the parties involved with the RPSB, saying  that he would read the Press Release to all those there assembled.  He then proceeded to read the Press Release, without revealing to the audience that he was purposefully omitting two key paragraphs from that reading, perhaps arrogantly believing that the listening and reading public, and reporter, would not know nor care about the difference;  Mr. Mills also failed to tell the audience that this was the “Agreement” which had been reached by these parties on November 01, 2006, but withheld from the public until after the town warrant was prepared, until after the elections were held, and until after the Town’s financial books were closed, and until after the Annual Audit of the Town was completed for the year 2006.  He proudly announced that the Town would have to pay Horne Construction only $190,000 to avoid a “threatened” lawsuit.  

What the Selectmen have failed to tell the Rye Townspeople is the real and whole cost of their “Settlement,” and the reasons they have chosen to hide and reinforce the cover-up of the truth and consequences of their shenanigans over the past two years in this sordid affair.  Because of their back-channel, secret, conspiring, behind-the-scenes dealings, by several petty malicious incompetent people in violation of legal contractual requirements, working to make their own selfish deals with the architects, HKT, and the general contractor,  Horne Construction, they compromised the efforts and legal standing  of the RPSB Committee, as well as the Project Manager and Owner’s Representative, and in turn the quality, the cost, and the timely delivery of the building.  

As has been reported earlier, this simple building should have been completed early, under budget, and with superior quality.  Instead, the Selectmen have accepted a building that has been under construction for more than 29 months and is still not complete; that has cost substantially more than was approved by the voters and legally agreed-to by the legal contracts with the Architect and General Contractor.  On an almost daily basis, we are reminded that we have received a building of inferior quality with many substantial flaws that emerge, continue to appear, go uncorrected, and which will continue to grow in number even as they go uncorrected.

To all informed professional people, including lawyers, knowledgeable of the business of design and construction, this was a clear-cut case of errors, omissions, and a failure to perform, among other things, as properly addressed in the legal contract.  Any objective competent lawyer sees this was a classic open-and-shut case in the Town’s favor.  However, several town officials had entered into friendly, cozy, albeit bizarre, relationships with the architect and the general contractor and, with their own secret dealings, had compromised the Town’s interests and legal standing.  When their “friends” later turned on them, and when confronted by the strong-willed long-experienced architect and contractor, those Rye amateurs, claiming to represent Rye’s interests, found themselves alone and ignorant, not knowing anything about this business, and even more importantly, about the RPSB project.  Further, not one of these five people, purporting to represent the Town, entered into these “negotiations” with “clean hands”, to use a legal expression.  

Still further, consider that the three Selectmen, the Town Administrator, and their legal counsel, did not have, and still do not have, all of the relevant documents pertaining to, let alone an understanding of, the issues that have long plagued the RPSB; not one of this group-of-five knew or knows anything about institutional design and construction, in general, or about the RPSB in particular.  In their dysfunctional state caused by their ignorance of the substantive issues of the RSPB, combined with their selfish eagerness to save their collective faces, including their legal counsel they decided that it would be better to use the Town’s monies to buy their way out of a court proceeding, or suit, than to take the chance of being exposed, with unclean hands, in the glare of a courtroom.  Unwilling to take the risk that their ignorance and behavior would be revealed to the Court, to the jury, to the public at large and the people of Rye, and to the New Hampshire Attorney General, they gave away the people’s money.   The facts tell me that this “out-of-court settlement” was a pay-off to buy a continued and “confidential” cover-up of the incompetence, malfeasance, deceit, and treachery that had plagued this project from the beginning.  One needs only wonder why, and ask, “What did they receive in return for their secret dealings with those who were contracted to provide design and construction services to the Town?” What was the quid pro quo?  Who benefited?  Whose position was enhanced?  

Further, consider that at a meeting of the Board of Selectmen on the evening of November 27, 2006, Chairman Mills asked his colleagues and Town Administrator (TA) Alan Gould if they could use surplus funds, collected for the school system, to help pay the bills for the RPSB.

Recently, at a meeting of the Rye Budget Committee on Thursday, April 19, 2007, in response to multiple questions by members of the Committee, now-BOS Chairman Craig Musselman and Town Administrator Gould admitted that the RPSB and its related issues are still not settled, including its final cost. Among the remaining issues are outstanding invoices, retainage payments, unresolved legal issues and their costs, construction work still not complete, punch-list items, warranty matters, lack of “as-built” drawings as required by contract, malfunctioning systems, etc…

It is also well known, by this writer and others, that many problems still exist with this building, many problems have still not been corrected even when identified on the “punch list,” many problems never made it to a punch list, some problems caused by design and/or construction deficiencies are uncorrectable. The problems requiring a fix include a leaking roof, inadequate insulation, frozen and broken pipes and related damage to the building, malfunctioning HVAC equipment, destructive site-grading errors, unresolved lighting controls, contaminated leakage into the holding tank, etc…

The BOS and TA and their friendly legal counsel claim that it is all right if they spend more of the Town’s money for the RPSB than was approved by the Townspeople, as long as they take the “needed” additional funds from some source other than the approved RPSB Project Budget.  This “somewhere else” is the Town’s “surplus” which, in turn, funds the Town’s “reserve” which, in turn, is the “cookie jar” or “slush fund,” as the Selectmen call it, that is used to underwrite all manner of things, essentially off the books, and beyond the purview of the townspeople.  This slush fund contains the aggregate of excess monies budgeted for and then taken from the various departments, including schools, police, public works, etc…The behavior of Rye town officials bespeaks the contempt with which they regard the unknowing residents and taxpayers who “will not know the difference.”  However, this is the Rye taxpayers’ money after all, and it is all coming out of the Rye taxpayers’ pockets.  When pressed on this point, the Selectmen are adamant that as long as the RPSB bills are paid with monies from some other source, they can still make the claim that the RPSB came in under the budget that was approved by the voters of Rye.  

So what is the cost of the RPSB?  In this case, even prior to completing an exhaustive review of the Town’s books and files relating to the RPSB, as well as to the other Town departments, one can conclude that the real cost to the Town is far more than that claimed by the Selectmen in their press release.  As well documented recently by reporters in the Portsmouth Herald, officials in the Town of Rye have neither been forthcoming nor cooperative in their responses to requests for information based on Right-to-Know laws as well as the Freedom of Information act.  However, having more information and documents in hand than the Town has, an informed professional opinion can be formulated and expressed, considering the condition of the yet-to-be-completed building, its sordid history, its change-orders, its errors and omissions, its well-documented failings, along with outstanding invoices, retainage, and work still outstanding. All things considered, rather than paying $190,000 to Horne Construction to buy the Selectmen’s way out of an “allegedly-threatened” lawsuit in order to secure their cover-up of their morally corrupt behavior, the Town should be receiving some $630,000 from the Architects and the General Contractor for this building of shoddy design and construction quality, that was legally required to be delivered seventeen (17) months ago. To at least some of us, $630,000 is real money. As a point of reference, the building construction cost was legally-contracted with Horne Construction to be $2,931,385, out of a “Project Budget” of $4,374,525.

It may be of interest to more than a few that on just one line item of the Rye Town Budget for the year 2006 alone, the Town-approved appropriation for legal expenses was $145,000; however, the Selectmen approved an expenditure of $253,263, 175 percent of the budget, resulting in an over-expenditure of $108,263, or 75 percent over budget. Moreover, other additional significant legal costs to the Town are invisible to the taxpayer, because they are scattered, without identification, elsewhere throughout the budget.

And finally, consider further that it should not be the role of the Selectmen and their hired guns to threaten, literally, and attempt to penalize those who might choose to raise legitimate questions about Town matters.  Also, we should remember that the Selectmen’s “cookie jar” was not intended to be used to reward their friends.  The use of these funds to further reinforce their cover-up of their dishonest, deceitful, treacherous, corrupt behavior in their secret back-channel dealings has been perpetrated only at the expense, financially and morally, of the interests of the people and taxpayers of the Town of Rye. The people of Rye deserve better.  

May, 2007