Fasano urges attorney general’s recusal on Tweed case [NHRegister]

August 7, 2019

State Sen. Leonard Fasano, R-North Haven, sent a letter to state Attorney General William Tong Tuesday, urging him to reconsider his decision not to recuse himself from the process to decide whether to appeal the federal appeals court ruling on Tweed New Haven Regional Airport’s runway to the U.S. Supreme Court.

“I am in receipt of your letter dated August 1, 2019. I look forward to meeting with you to discuss my thoughts and concerns on this matter,” Fasano, the Senate minority leader, wrote to Tong. “However, I continue to have concerns about you overseeing this case, which I describe in more detail below. I also believe your proposal to facilitate a discussion between the plaintiffs and me is problematic.

“You contend that ‘there is no legal or ethical basis for [your] recusal’ from the decision of whether to appeal the 2nd Circuit ruling in Tweed New Haven Airport Authority v. Tong,’” Fasano wrote. “However, the Rules of Professional Conduct provide specific guidance in this matter I would ask you to reconsider.

“The commentary to Rule 1.7 Conflict of Interests: Current Clients begins by stating that ‘Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client.’” Fasano wrote.

“More specifically, Rule 1.7(a) states that “A concurrent conflict of interest exists if ‘(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.’

Tong’s office did not immediately respond to a request for comment.

The 2nd Circuit U.S. Court of Appeals on July 10 ruled in favor of Tweed in its longstanding lawsuit seeking to strike down the state statute limiting Tweed’s main runway length to 5,600 feet.

In a unanimous decision, the court ruled that the state statute limiting the length of the runway is preempted by federal law, and therefore invalid.

The ruling, assuming the state does not appeal it, would clear the way for Tweed to pave portions of the existing, unpaved runway safety areas to increase the effective length of the runway for takeoff.

It also would make Tweed more attractive to additional air service, Tweed supporters have said.

Tweed wants to pave portions of the two unpaved, 1,000-foot runway safety areas at either end of the runway to lengthen the usable runway for takeoffs to at least 6,000 feet.

Tweed’s most recent master plan, which the Federal Aviation Administration approved in 2002, stated an intention to eventually lengthen the runway to 7,200 feet.

Tweed New Haven Regional Airport is owned by the city of New Haven and located on the New Haven-East Haven border, with much of its land actually located in East Haven.

Two of the most powerful members of state Senate, President Pro Tempore Martin M. Looney, D-New Haven — who lives a few blocks from Tweed — and Fasano sent a letter to Tong July 16, urging him to appeal the 2nd Circuit decision to the U.S. Supreme Court.

Fasano, whose district includes East Haven — and who also owns the Silver Sands Beach & Tennis Club just off the southern end of Tweed’s main runway — said that a letter he wrote to Tong on July 23 “cites a number of instances of your involvement with and connection to (New Haven) Mayor Toni Harp.”

“In her capacity as Mayor of New Haven, she is a principal adversary to the State in this lawsuit,” Fasano wrote. “Though one may argue whether those connections rise to the level a Rule violation, I believe it would be in the best interest of all to avoid any situation in which there is any question of even the appearance of impropriety.

“I believe we both agree that we do not want your connection to the Mayor to ever be seen as a cloud over whatever decision is made,” Fasano wrote.

Harp’s office did not immediately respond to a request for comment. East Haven Mayor Joseph Maturo Jr. declined to comment.

Fasano also told Tong that “rather than offer to defend the validity of the state statute in question, you offer to facilitate discussing my concerns in a meeting that includes the plaintiffs in an effort to avoid further litigation.

“As a lawyer, your obligation is to defend zealously your clients’ position,” he wrote. “In this case, your client is the state of Connecticut, as it is the state of Connecticut that passed and enacted laws that are now being challenged. The Preamble to our Rules of Professional Conduct makes your obligation to your client clear.

“As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system,” he quoted the preamble as saying. “A zealous advocate would take the appeal and then negotiate. A zealous advocate would not offer to be the mediator between his client and their adversary instead.

“Your offer is also confusing,” Fasano wrote. “By your offer to meet with me and the plaintiffs, I presume you meant to include their counsel as you cannot contact directly a represented adversary. But then this raises the question: who would represent the General Assembly in that meeting? This conflation of client, adversaries and counsel only seems to underscore your closeness to some of the plaintiffs in this case. This again is why you ought to recuse yourself.”

Fasano told Tong that “finally, this issue is a constitutional question of states’ rights. It cannot be politically negotiated between parties,” he wrote. “Either something is constitutional or it is not. Therefore, a negotiation does not seem appropriate in this situation.

“I urge you to reconsider your decision not to recuse yourself,” Fasano wrote. “It will make whatever decision is made free from the hint of impropriety, which is what we as public servants owe the public. As the time to appeal continues to dwindle, please address this situation post haste.”