Ellis Construction Inc. of Farmingdale is suing the town over a sewer inspection and maintenance contract after it was not renewed for 2015-2016.
Ellis Construction claims it is owed $3,300, plus labor and materials, that it would have received beginning in July 2015. The civil lawsuit was filed in superior court in Augusta.
The lawsuit also charges the town of Farmingdale with violating the state’s Freedom of Access Act by entering into an executive session to discuss it and then voting publicly not to renew the contract — a point conceded by the town’s attorney in her response to the lawsuit.
Ellis Construction, which is owned and operated by Christopher and Angenette Ellis, is represented by attorneys Walter McKee and Matthew Morgan.
The dispute comes a few years after controversy erupted in Farmingdale about the town’s winter snowplowing contract with Ellis. In August 2014, the Farmingdale Board of Selectmen and Ellis Construction agreed to terminate their three-year plowing contract after only one year.
The town’s winter maintenance contract became a frequent target of criticism from some residents after the board awarded it to Ellis Construction in 2013 for $162,500 a year. Complaints ranged from a rival plowing contractor accusing Ellis Construction of not meeting equipment requirements at the start of the season to some residents saying the selectmen shouldn’t have allowed the contractor to bill the town for additional work done to take care of refrozen roads and for filling the sand box at the Town Office.
Excalibur, operated by Tony Barry, of Farmingdale, is doing the town’s sewer work now.
The new lawsuit against the town charges breach of contract, alleging that Ellis “relied on the contract and did not seek or accept additional work elsewhere based on its understanding it would be paid under the contract for a similar amount of work performed in the prior years of 2013 and 2014.”
Town records indicate that Farmingdale paid $22,666, including the $3,300 maintenance contract fee, in the first year; and $23,278 in the second year, also including the $3,300 contract fee.
The lawsuit also says Ellis Construction performed sewer work after June 30, 2015, at the town’s request, but the town has refused to pay for it. Ellis Construction is seeking an unspecified amount of damages costs and interest. Ellis Construction also asks the court to find that the Freedom of Access Act was violated and to impose a $500 fine.
The town denied a number of allegations and requests dismissal of the lawsuit.
“The contract expired on June 30, 2015, making it impossible to ‘terminate’ the contract at any time after that date,” the town says in its response to the lawsuit. The town is represented by attorney Mary Denison.
The response also says, “Any work performed by Ellis after June 30, 2015, was done outside of the contract and on its own initiative.”
She also says “the Board of Selectmen, unassisted by counsel on Sept. 23, 2015, labored under the misconception that discussion surrounding a municipal contractor fell under the purview of ‘personnel’ matters.” The response says that was “an inadvertent error.”
According to minutes published on the town’s website, the three-member Board of Selectmen spent 22 minutes in that executive session before voting to put the sewer contract back out to bid.
A week earlier, the board had voted 3-0 to require Ellis Construction to sign the contract by the Sept. 17 meeting of the Sewer Committee or have the contract put out to bid. Ellis Construction then signed it, as did Ben Sanborn, chairman of the Sewer Committee. However, selectmen did not sign that contract for the 2015-2016 year.
The next step in the court process is for the parties to engage in an alternative dispute resolution conference.
Betty Adams — 621-5631
Twitter: @betadams
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