Evan Barr is a lawyer, specializing in white collar criminal defense and litigation. He has lived in Westport with his wife and family (including 2 Staples High School graduates) for the past 17 years. He is also a longtime member of the Westport Democratic Town Committee. He writes:
The Representative Town Meeting will soon vote on a request by the Department of Public Works to use $630,000 in American Rescue Plan Act funds for the redesign and redevelopment of Jesup Green and the Imperial Avenue parking lot.
From both a legal and public policy perspective, ARPA funds should not be used for this purpose.
In 2021, Westport applied for and received a $4.2 million pandemic grant for projects to be commenced before December 31, 2024.
In January 2022, the first selectwoman and her team made a presentation to the Board of Finance to discuss the grant. (Click here to see.)
The administration itemized 3 categories of eligible uses:
- To respond to the COVID-19 public health emergency or its negative economic impacts
- For the provision of government services, to the extent of the reduction in revenue of such recipient due to COVID-19
- To make necessary investments in infrastructure, the economy and public health.
The administration then set about spending the money.
The administration listed an initial expenditure of $340,000 for “Downtown Parker Harding & Jesup Lots Design” as falling under the category of “Economic Vitality.”
In May 2022, the administration secured RTM approval for an appropriation of $400,000 from Westport’s ARPA funds for the planning, design and redevelopment of Parker Harding Plaza, Jesup Green and the Imperial lot.
That same year, the US Department of the Treasury issued updated guidance on the use of Coronavirus State & Local Fiscal Recovery Funds, which includes the ARPA money allotted to Westport. (Click here to see.)
Under these regulations, eligible infrastructure usage is limited to investments in water, sewers or broadband projects. The regulations also provide that qualifying expenditures for “public health and economic impact” could be used to respond to “the disease itself or the harmful consequences of the economic disruptions resulting from or exacerbated by the COVID-19 public health emergency.”
$1. 3 million in ARPA funds were used to rebuild the groin at Burying Hill Beach. (Photo/Peter Swift)
Most importantly, the regulations make clear that municipal expenditures for “general economic development” – meaning “activities that do not respond to negative economic impacts of the pandemic but rather seek to more generally enhance the jurisdiction’s business climate – would not be eligible” under this category.
But that is exactly what the first selectwoman is apparently trying to do here.
The proposed project before the RTM has nothing to do with the “economic impact” of COVID-19. Downtown has rebounded from the pandemic and remains vibrant. (Nor does it relate to any eligible infrastructure category).
To the contrary, the first selectwoman and the head of the Department of Public Works have consistently described the Jesup project as part of a long overdue solution to aesthetic and traffic-flow issues that have bedeviled Parker Harding Plaza since the 1980s. The administration has not, and cannot, plausibly characterize this project as related in any way to the pandemic and its repercussions.
Westport is an affluent suburb with a Triple-A bond rating that does not need to rely upon specially- designated federal pandemic relief money to boost our “economic vitality.”
But that doesn’t mean the ARPA grants have to go to waste. We can use the money, for example, to fund flood mitigation measures or to invest in upgrades to the Aspetuck Health District facilities where vaccines are administered.
Numerous state and local governments around the country have been called out for spending ARPA funds on questionable projects clearly unrelated to the pandemic. Let’s not add Westport to the list of towns and cities accused of misusing taxpayer money.
Great summary ‼️
Thanks 🙏
This is a brilliant essay. Thank you so much! You checked every item. It reinforces that Ms. Tooker is in the pocket of the developers.
Thank you, Evan! I and others have been saying for a long time that this is not a sensible use of these funds–that we would be better off using the money for flood mitigation. (Of course, we’ve also been saying that it’s crazy to chop down mature trees and give up our precious green space to create a parking lot.) Now, thanks to your op-ed, we know that the plan is probably not even legal. It’s high time for the administration to withdraw this application and concentrate its efforts on projects that will actually help residents.
Holy cow. I had kinda wondered about this. The proposed use of the funds seemed a bit sketchy somehow. Now it appears we may have a problem. Thanks attorney Barr for your analysis.
Glad someone knows what they’re talking about! It’s clear the town players don’t. Another example of putting the cart before the horse.
Not to mention a total waste of taxpayer money. Covid funds to cut down trees on jesup green. This is a perfect example of the great disconnect. I was so concerned about the charter oak sampling i thought it was a darpa project…
Another peculiar thing: until a local land use attorney mentioned it at the RTM’s Jesup site visit this week, town officials were apparently unaware that they would need a variance to pave over a portion of our town green. What? No one noticed the parcel is already over coverage? If this makes it to ZBA, what the heck is the town going to claim as a hardship?
C’mon Morley. When you’re flexing at Compo, who cares about a tree or two?
Flexing at Compo? I’m quite sure you are confusing me with someone else, Hope.
This is exactly why we need a professional city manager running things. Thank you counselor. Where is Ira Bloom, our city attorney on these matters?
Thank you attorney barr
Thank you, Attorney Evan Barr.
Atty Barr’s link to the Final Rule is informative . At page 22 501(c) (3) non-profits affected by Covid are eligible recipients of the funds. Westport Emergency Medical Service may be eligible. WEMS is trying to raise funds to replace 2 of its 3 ambulances. Estimated cost 400k each. I’d prefer an ambulance, an investment in public health, to a parking lot design.
Also what ever happened to the $400k approved in 2022 for the same purpose she is asking for another $630k for now???
I appreciate Mr. Barr’s comments. As the old expression goes: “Every pancake has two sides.” Before we pillory anyone, I’d like to hear the Town’s perspective on this matter.
Good point. Ask two attorneys a question and reasonable chance you get two different answers.
While this looks like a good summary of implications of the linked 2022 Final Rule, it does not appear to be a fully researched Legal Opinion analyzing the specific facts and circumstances and/or strength of Westport’s argument. It also does not appear to address the subsequent 2023 Interim Final Rule which significantly expands the list of expenditures allowed under ARPA due to subsequent Congressional Amendments. Nor does it analyze the practical risks of the treasury actually seeking to claw back funds in light of the seemingly widespread liberal interpretation of the ARPA rules.
For those expecting to see an official Legal Opinion from the town attorney plowing through all the details, don’t hold your breath. If there is one, it is likely covered by attorney client privilege.
I truly think the most responsible course of action is to seek a written opinion from the Office of the Solicitor General, which governs the legality of these disbursements. If two attorneys have differing views, you seek the guidance of the expert body.
I am fairly confident that our Town leadership silently understands that using the ARPA pandemic relief subsidies to fund these kinds of Pandemic Unrelated projects is simply inappropriate. Not only does this violate the usage rules, but it violates the spirit of its purpose. I imagine there is ethical wiggling going on in an attempt at justification.
As I read the updated publication, am I correct that being under $1 million means that the administration need not provide project justification to the Treasury Department? If so, the strategy might be to try and “fly below the radar” with the likelihood of not getting caught. Very bad gamble – particularly for another controversial project with so much public opposition.
A Treasury Department audit will certainly be invited. AND when a reimbursement mandate gets issued – because it’s uncovered that the administration of an affluent Town decided to “game the system” to fund a discretionary project that was wholly unrelated to the taxpayer relief intended for those who actually suffered adverse health consequences and economic hardships – imagine (to borrow the recent words of a prominent Westport official) the “Unfortunate Publicity for Westport “.
Why does this administration and its minions choose to invite so much “Unfortunate Publicity for Westport”?
I wouldn’t count on Ira Bloom to put the brakes on this expenditure–he always seems to find a way to justify whatever it is the “town” wants to do, no matter how questionable. Kicking this can to the curb is going to be the job of the citizens of Westport and its volunteer boards.
Great summary. I’ve been commenting on this misuse of funds for awhile now. The whole federal program is dubious frankly and I’m sure Westport’s potential misuse is one of many through the US. Our tax dollars “at work”!!!
There is a fascinating documentary on Amazon Prime about the former comptroller of Ronnie Reagan’s hometown in Illinois. The gal stole 150 million bucks, stashing it in a simple secret account, over a 20 year period. Nobody questioned her because “she knew what she was doing.” Yikes!!
Mr. Barr is correct. I had similar concerns during some disbursements in the first traunch. This is NOT a partisan issue. Please see the comments from Congressman Ben Wenstrup (R-Ohio) noting projects just like this as a misuse of funds.
The Town would be best served seeking a written opinion from the Office if the Solicitor General before making a decision regarding these funds. As a tax attorney I often sought private letter rulings from the IRS. The OTSG will do the same.
https://oversight.house.gov/release/wenstrup-calls-out-treasury-for-enabling-misuse-of-covid-19-aid/