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Wednesday, September 12, 2012

“I don’t recall” ever seeing a deposition like this

Sworn deposition by Charlestown Land Trust Treasurer sheds light on why the Y-Gate Scandal was such a fiasco
For the whole Nonsequitur cartoon, click here

By Will Collette

Even if the still unknown “private buyer” goes ahead with the purchase of the Westerly YMCA’s abandoned campground, the Y-Gate Scandal is not over. Yet to be resolved is Dr. Jack Donoghue’s lawsuit that blocked the Charlestown Town Council from forking over $475,000 for a worthless conservation easement on the derelict property.

Town Council President Tom Gentz (CCA) is staking his political future on his “leadership” in the Y-Gate process, his pride in how the Y-Gate deal was put together and his grief at seeing the deal fall apart.

To see my earlier reviews of Gentz’s role in Y-Gate, read here and here

I doubt Gentz, or Councilor Gregg Avedisian, the other key Y-Gate proponent, will find much comfort in revelations found in Charlestown Land Trust Treasurer Russ Ricci’s 61-page sworn deposition.

Dr. Donoghue’s lawsuit claimed the town committed two Open Meetings Act violations. The first was in February when the Council majority, led by Council Boss Tom Gentz, voted to spend $475,000 without properly advertising its intention to do so. The judge in the case has already ruled that the town did indeed violate the law by doing so.

Ricci spoke often to Town Council President Tom Gentz
The second “count” alleges the committee appointed by the town to advise it on the Y-Gate deal violated the Open Meetings Act by not advertising its meetings and not publishing agendas or minutes. The judge permitted Dr. Donoghue’s attorney Maggie Hogan to continue this part of the case by collecting evidence through “discovery.”

Maggie conducted a “deposition” of Dr. Russ Ricci, Treasurer of the Charlestown Land Trust, and frequent spokesperson and hawker of the “fifty cents on the dollar” deal before the Town Council. As one of the key Y-Gate players, as well as its principal voice, Ricci’s deposition should have yielded a lot of information about what really happened.

As it turned out, Dr. Ricci said he doesn’t remember much about what happened. In the 61 page deposition (click here to read in its entirety), Ricci says he either doesn’t know or doesn’t recall specific facts about Y-Gate close to fifty times.

For most of the first 16 pages, he answers nearly every question that way, not remembering when he first became Land Trust Treasurer or a Land Trust member [p. 6-7], or when the Town Council formed the Y-Gate advisory committee (YAC) [p.10] or who asked him to join [p. 11] or if there was an application [p. 12].

He did remember that, like most of the later members of the YAC, he was not eligible to join when it was first formed in July 2011. He lives in Providence and is not a Charlestown resident [p. 16].
And Joanne D'Alcomo

He remembers talking a lot to Councilors Tom Gentz and Gregg Avedisian, a little to Councilor Marge Frank and not at all to Councilor Lisa DiBello. He can’t remember talking to Councilor Dan Slattery. He remembers talking a lot to his Land Trust colleagues, Mal Makin from the YMCA, Sonquipaug’s Joanne D’Alcomo and Planning Commissar Ruth Platner both inside and outside the YAC meetings.

In fact, based on Ricci’s testimony a lot of the committee’s work went on outside the committee, even though Ricci testified that members were not given assignments to carry out outside the committee process [p. 23]. Those outside consultations and deal-brokering could compound the Open Meetings Act allegations.

The YAC becomes a special case designed to accommodate non-residents

The YAC was re-designed by the Town Council in October 2011 when the “stakeholder” groups – the Charlestown Land Trust, the Westerly YMCA and the Sonquipaug Association, all of whom had lots to gain from Y-Gate – did not have Charlestown residents they wanted to assign to the committee. So the Council re-formatted the committee to get around the residency requirement.

However, nobody ever gave the YAC the go-ahead to also ignore the state’s Open Meetings Act, which, according to Russ Ricci’s testimony, is exactly what they did.

No meeting notices, no meeting minutes or notes

Although Ricci said he could not remember how he found out when and where the first meeting was called, he did remember that subsequent meetings were set by a decision of the YAC at the end of each meeting [p. 22]. From his testimony, that’s how YAC members got meeting notices. He can’t remember any other form of meeting notice [p. 19].

When asked if anyone other than a YAC member attended any YAC meetings, he said he remembered Roger Greenwall and Karen Jarrett from the Land Trust and Mal Makin from the Y [p. 17]. He doesn’t remember anyone else.

Was anyone designated as the secretary? Did anyone take notes? No, Ricci said, “I don’t believe so. I ended up taking a lot of notes [p. 19].”

Do you still have those notes, he was asked, and “No” was his answer [p. 19][1].

Going after the DEM money

Ricci was asked a series of questions to determine how the Land Trust’s funding application to DEM was put together. These questions take up most of pages 24 to 29. Ricci names the principal players as CLT Director Michael Maynard, CLT current president Karen Jarrett, Sonquipaug “Mayor” Joanne D’Alcomo, Planning Commissar Ruth Platner and a bunch of “scientific types.” Asked to be more specific about the “scientific types,” Ricci said he didn’t know [p. 25].

He doesn’t remember if the YAC ever met with a DEM representative or how the YAC was involved in the grant process.

When asked when the grant was actually submitted, he said he didn’t know and added, “the cart, the chicken or the egg” [p. 27]. Attorney Hogan didn’t ask which was which.

But she did ask about the approval process and whether there was a “sense of urgency.” He said yes there was, that there was some discussion and some dissent – mostly from Conservation Commissioner Ken Simoneau – and that ultimately, the CLT went ahead and submitted the grant in its own name[2].

Ownership, access, park, toxics and the handicapped

Maggie Hogan then quizzed Russ Ricci on specific points of controversy surrounding the Y-Gate deal. Who did the YAC consult on ownership issues? Answer: can’t recall [p. 31].

Hogan pointed out that Ricci himself had told the Town Council that he had spoken to many people about details of the plan, especially how it was to be financed, and asked him to say who he spoke to. Ricci couldn’t remember.

Maggie asked him how he went about talking with all those people, the ones he can’t remember. Ricci answered, “I would go to Rippy’s [spelled “Rupee’s” in the transcript] and be approached by people [p. 32].”

He volunteered that people just didn’t understand about the cost to the town, and how the price ($475,000) for the conservation easement provided for “dawn to dusk” access. Hogan pointed out that nowhere in the documents included in the Y-Gate public record does it say that[3]. What is in the easement that is in the public record is the statement that access is by appointment only.

Ricci argued, “No. The way I read it was the other way around [p. 34].”

Here's what the Land Trust wrote in the conservation easement (the town is the "Grantee"):

This issue came up again toward the end of the deposition [p. 56-57] when Hogan asked Ricci why the CLT felt it could charge Charlestown $475,000 for the conservation easement when the CLT told the IRS that it considered its own conservation easements to be worth less than zero, though they valued them all at $1. Ricci said it was complicated and a whole different story.

Ricci said, “We don’t own the land” where the CLT holds easements, although under the Y-Gate deal, Charlestown wouldn’t own the land (i.e. the YMCA camp) either. Ricci said the big difference was the dawn to dusk access, but in fact, two of the CLT’s properties are open dawn to dusk (and are still valued at $1 on the CLT’s IRS reports. Plus none of the official Y-Gate documents support Ricci’s claim about the town getting dawn-to-dusk access for its $475,000.

Here's what the Charlestown Land Trust told IRS about the value of its conservation easements:

Here's Russ Ricci's signature attesting to the accuracy of the statement under penalty of perjury on the 990 report filed with the Internal Revenue Service:

Maggie continued down the list to ask Ricci to name who was consulted on a string of key issues (e.g. parking, usage, maintenance) and each time Ricci answered “Multiple people.”

Finally, Maggie asked “Multiple UNNAMED people?” [p. 35] and Ricci said, yes, “multiple people.”

He can’t remember if the town Public Works Department participated, but does remember former Town Administrator Bill DiLibero did, to raise concerns about liability [p. 35].

Ricci said the liability question was settled upon consulting with the Land Trust’s insurance company that told them the CLT was covered. Hogan asked Ricci, who is, I remind you, the CLT’s Treasurer, for the name of that insurance company and he said he didn’t know [p. 36].

Hogan asked Ricci about community concerns about the cost of demolition of 20 derelict buildings on the site, the presence of underground storage tanks and toxic materials. Ricci had told the Town Council on repeated occasions that the site had been checked and it was clean. Ricci also said the cost of demolition would be $48,000 or less.

But when quizzed about the details, Ricci’s claims fell apart. He couldn’t remember which local builder quoted the demolition price or where that quote went [p. 37]. He had claimed engineers checked for environmental hazards but couldn’t remember who they were or whether there were reports. He said they ruled out toxic substances on-site, but again, could not remember who said so and whether that was in a written report. He didn’t know if there were any underground storage tanks [p. 38-9].
No reports to support Ricci’s claims about the camp's clean bill of environmental health have surfaced in the public record.

Yet, at repeated Town Council meetings, Ricci testified publicly that the CLT had experts examine the site and was totally confident that the site contained no environmental hazards. But when he said those things to the Council, he was not under oath.

Had the neighbors’ concerns about parking been resolved? Ricci answered, “Conclusions, no. would need active discussions” [p.40]. So the parking issues were unresolved.

On the issue first raised here in Progressive Charlestown about legally mandated handicapped access, Ricci again said they consulted “multiple [unnamed] individuals” but could only conclude “we needed an expert opinion” [p. 40].

And did they get that expert opinion? Ricci’s answer was “no” [p. 41]. So the handicapped access issue was unresolved, too.

What do we get for our money?

Attorney Hogan now entered the controversial topic of the value placed on the land. As readers will recall, the total cost of the Y-Gate deal has varied wildly from just under $1 million to a final number of almost half that.

Pinning Ricci down on these details was tough, as the transcript shows, even though Ricci is CLT’s Treasurer and frequently pitched the details of the deal to the Town Council (though not under oath as he was in this deposition). Given that, Ricci's claims about what he didn't know or couldn't remember are pretty surprising.

Who weighed in on the cost of the deal, Hogan asked? Ricci said, “Many people, the Y, the citizens of Charlestown…multiple appraisers” [p. 41].

HOGAN: “Were there any appraisers that came and spoke to the land advisory panel?”

RICCI: “I don’t believe so. I think Mr. DiLibero spoke to the group about the appraisers.”

HOGAN: “What was the nature of that conversation.”

RICCI: “A bunch of appraisers.”
HOGAN: “Who was responsible for securing an appraisal on the property?”

RICCI: “The town council.”

In fact, it was the Charlestown Land Trust, not the Town Council[4], that secured not one, but two appraisals. The first was the one based on fictional criteria that pegged the value of the land at $730,000.

Here's how the Charlestown Land Trust's appraiser described the factors he incorporated into his analysis:
The actual condition of the property is described here.

That appraisal was rejected by DEM. DEM demanded a more realistic appraisal before it would release its grant. That second appraisal came in at $410,000.

Later, Maggie asked Ricci if that new appraisal has been submitted to the town and Ricci answered, “Not unless you have it already [p. 55].”

Ricci said he thought the Land Trust had done the scoring of the land’s value as open space in conjunction with DEM, but doesn’t know when or how. He knows the YAC didn’t do a score. He doesn’t know if the town Tax Assessor was consulted, even though Ricci insisted on using the old tax assessment of the land at $1.1 million when it was being used as a camp as a legitimate value [p. 43].

As the questioning got more tense, After Ricci said he didn’t know if the CLT had done an earlier open space scoring, Hogan asked him whether “You don’t know or you don’t recall.” Ricci responded with his own question, “what’s the difference[5]?”

Maggie repeated the question and Ricci replied “I don’t know or recall” [p. 45].

Who did “The Copulation?” Ricci says he did. With Karen Jarrett

Hogan’s questions shifted to the December and February Town Council meetings when critical Council votes were taken, largely based on Ricci’s claims and promises before the Council.

Hogan asked Ricci to identify who wrote the YAC’s report and who wrote the Council resolution attached to it. Ricci was evasive and had to be asked the same questions from multiple angles [p. 45-51].
Ricci described the report-writing process as “committee word processing.” When asked what that meant, he said there were multiple drafts and different pieces that were written by various YAC members.

“I think I was the final drafter of the copulation [p. 49]...Everybody weighed in with the content, and I went off and typed it…Then I’d come back and say, do we hand this to the Council? [p. 50]”

Hogan asked a follow-up question: “Who else would have assisted you in the drafting of that copulation report or whatever you want to call it?” Answer: Karen Jarrett [p. 49] current President of the Land Trust.

Some YAC members received copies of drafts in advance. Some only when they showed up at a meeting (presuming they knew when and where it was). “It was a last minute thing. It went typically. It went through iterations. It was a iterative process” [p. 51].

The YAC never voted on its own final report, according to Ricci. “It was informal. It was a consensus with objectors [p. 47].” When pressed, Ricci remembered that Ken Simoneau, delegate from the Conservation Commission, was a vocal opponent.

Ken Simoneau says that when he voiced doubts about Y-Gate at the first meeting, Ricci called him on the phone and harangued him to change his position. Simoneau says he didn't receive any further meeting notices (although from Ricci's testimony, perhaps there weren't any meeting notices for Ken to receive). He did not get invited to any other YAC meetings until what he believes was the very last one. When Ricci was asked during his deposition to say when the YAC held its last meeting, Ricci couldn't remember.

About that “Fifty Cents on the Dollar…”

Hogan returned to Ricci’s famous quote claiming that Charlestown was getting a great deal, “fifty cents on the dollar,” and gave Ricci another shot at explaining what he meant. Here’s how Ricci replied:

“That the value of the land and the purchase of the land if the Town were to buy it using all its own money would cost ‘x.’ If it used private and state federal money for half of ‘x,’ it was getting it for fifty cents on the dollar. There was the DEM award [p. 52].”

Did the combination of town, state and private money equal 100% of the price? Yes, answered Ricci.

Was any Land Trust money going into the deal[6]? Answer: no. But the Land Trust was taking title? Ricci said yes, and the liability.

Specifically, how much did the Charlestown Land Trust raise to make the Y-Gate purchase?

Answered the Charlestown Land Trust’s Treasurer, “$25,000. I could be wrong [p. 54].”

Click here to read Ricci’s entire deposition.


[1] In his own sworn deposition, Councilor Gregg Avedisian also admitted the group did not advertise its meetings, post its agendas or publish minutes. Read his deposition here.

[2] Except there was no urgency at all. According to the Town Council minutes for July 11, 2011, Council Boss Tom Gentz reported that the CLT had ALREADY submitted the DEM application BEFORE the YAC was even formed and certainly well before the YAC was re-formatted in October 2011 to accommodate non-residents.

[3] CLT Attorney Paul Singer has claimed the dawn-to-dusk provision is contained in the “management plan.” This management plan is not, however, included in the public record.

[4] Since so much town money was on the line, you’d think the town – and certainly Y-Gate’s Council supporters Tom Gentz and Gregg Avedisian, would have insisted on a town-run appraisal both for the property and for the conservation easement. The fact that none was done by the town reflects poorly on their due diligence with YOUR tax money.

[5] As a writer, not a lawyer, I would define “I don’t know” to mean I NEVER knew and “I don’t recall” to mean that I might have known once but now I can’t remember.

[6] In the YAC’s December report to the Town Council, the report said that $100,000 of the total cost would come from private fund-raising.

In the Land Trust’s grant application to DEM, the Land Trust said there would be NO town money involved. The $368,000 in matching funds would come from “Donations by neighbors, interested members of the public and revenue earned through fund-raising events and activities.”

Here's the financing for the transaction was described in the DEM proposal (NOTE: the final, most honest appraisal of the property set the value at $410,000, not the old tax appraisal value listed as $1.137,700):