Ethics Board Focuses Moynihan Investigation on Use of Town Resources, Letterhead

The appointed body that is examining whether New Canaan’s highest elected official violated the town’s Code of Ethics in the run-up to last year’s municipal election is focusing its investigation on two areas.

The Ethics Board is looking at whether First Selectman Kevin Moynihan used public resources in working on an endorsement letter that would be mailed out to residents prior to the Nov. 2 election, and whether the letterhead on the document itself constitutes a violation of the Code.

During its March 8 meeting, Ethics Board members said they’ve concluded that some aspects of the complaint against Moynihan do not amount to violations (such as resources used for the letter’s distribution) or fall outside of the Code itself (such as the wording in the letter itself).

Information gathered by the Ethics Board since receiving the Nov. 1 complaint indicates that Moynihan did use town resources in drafting and sharing the letter, Chair Tucker Clauss said.

“You’ve got the evidence of the use of a scanner, the fact that the respondent was in his office at the time, using town facilities and using the town scanner and associated town email,” he said at the meeting, held in a conference room at Town Hall. 

A more difficult question facing the Ethics Board is whether the letterhead on Moynihan’s letter was simply an identification of Moynihan or whether the first selectman was invoking his elected office as “an invocation of power, authority and imprimatur,” Clauss said.

“Therein lies one of the thorniest issues we have to deal with, is how we interpret that letterhead,” Clauss said. “And the fact that it resembles our official documents, Town of New Canaan minutes and the like, makes it even thornier.”

“Is this a letter that identifies or refers to his position or is it a letterhead?” Clauss added. “I am not deciding the merits on this right now. I’m just raising the issue, because it troubles me. We were all troubled when we saw this. We all stopped and said, ‘What is this?’ Right? ‘What are we looking at?’ ” 

He referred to an endorsement letter (it can be viewed here as Exhibit B) that Moynihan drafted, with edits by some Republican Town Committee members, during the final week of October, and that the RTC mailed out prior to the election. The Nov. 1 complaint, filed by New Canaan’s Micaela Porta, cited possible violations of three parts of section 17-2 of the Code of Ethics “Standards of conduct”—namely, 17-2b(5)(c), 17-2b(6) and 17-2b(8). They say:

• “No official or employee shall, in the discharge of his or her duties, grant (i) preferential treatment to any person or entity beyond that which is available to all other persons or entities, or (ii) any favor, service or thing of value except when such favors, services or things of value are made available to the general public.”
• “Use of Town property. No official or employee shall use, or permit the use of, Town property of any nature, including vehicles, equipment, resources, supplies or real property, for the benefit of himself or herself, except when such (i) is provided as municipal policy for the use of such official or employee in furtherance of the official’s or employee’s conduct of official business, or (ii) is made available to the general public and then on terms and conditions not more favorable than those available to the general public.”
• “Use of Town position. No official or employee shall use his or her position, or knowledge acquired through that position which is not available to the general public, for the purpose of obtaining or furthering a financial interest or a personal interest.”

Clauss said during the meeting that the Board would need to think more about whether the first section cited above applies because “I don’t think we have any evidence this letter was written in the official discharge of any duties.”

The Ethics Board met several times in executive session, discussing the complaint out of the public eye in the weeks that followed its filing. Details were finally made public during an Ethics Board meeting in January, when the appointed body drafted a formal resolution that further investigation was warranted. Moynihan called the Board’s decision not to dismiss the complaint outright a “perversion and politicization” of the Code of Ethics. The Ethics Board since then has asked for (and received) additional information from the RTC.

Its next meeting is scheduled for 7 p.m. Wednesday, a special meeting that includes this agenda item: “The Board will go into executive session to discuss a recently filed Ethics Complaint.”

During the March 8 meeting, the Ethics Board addressed some of the points that Moynihan’s attorney raised in the first selectman’s defense, such as that the appointed body has no jurisdiction to vet the complaint and that the filing of the complaint itself is a political act.

All members of the Ethics Board agreed that the appointed body has jurisdiction to vet the complaint filed in this case.

“Under the Code, we are supposed to receive, review, investigate and address written complaints of alleged violations of the Code by town officials or employees,” Clauss said.

He added, “We are not a body that considers or enforces state elections laws, we are not a body that considers or issues rulings on what constitutes free speech, political speech, campaign literature or anything like that. We deal in ethical behavior and that is the kind of category specified in our Code—conflicts of interest including disclosures and refusals, gifts, preferential treatment, use and misuse of town property of any nature and use and misuse of town positions. In my view, the last two categories which are indicated here, town property and town position.”

Ethics Board Secretary Tammie Garner said she was struggling with why there would even be a question of jurisdiction.

“We are assessing whether or not there was probable cause based on a complaint that came to us that followed our process, our protocol, it identified even the potential violations of the Code which we looked at in addition to hearing from a respondent and doing some initial investigation which led us to determine that there is the potential for an actual [violation],” she said. “To me, it’s very narrow here.”

Ethics Board member Robert Schott said that there could be “mitigating circumstances” in terms of protected speech that may “transcend a violation of our Code, where there might be dynamics that effectively nullify what we might perceive as a violation because of this protected political speech.”

Yet Clauss pushed back, citing part of a Massachusetts Advisory on ethics that Moynihan himself “has cited as being very thrustful and carefully drafted,” where it says “the public official may not use official emails for campaign-related matters, may not use public equipment to create, produce or distribute campaign materials, may not engage in political activity on public work time in a public building or use other public resources such as office space, facilities and public office equipment.”

“There is no political speech override to that,” Clauss said. “If somebody has done that, even under the authority that our respondent has touted, it is a violation.”

Garner said it was important for the Ethics Board to be clear that the investigation isn’t focused on the substance what Moynihan said in the letter.

“It would have been better just if he just published this as a ‘letter to the editor,’ as opposed to sending it in the form he did,” Garner said. 

“The point is we are not discussing, or we are not taking at issue, the right to say what he said—it’s how it was presented, distributed and whether the way in which it was conducted violates our Code of Ethics, because of his position and in the way he did it,” she said. “It’s not about whether he had the right to say, politically, ‘vote for’ whomever.”

In the letter, addressed to new residents of New Canaan, Moynihan urges constituents “to vote ONLY for the Row B Republican candidates” (his caps) in the Board of Education race. (The Ethics Board’s investigation is separate from a recently launched Connecticut State Elections Enforcement Commission investigation into a poll worker accused of using similar language while addressing voters outside the polling place at New Canaan High School on Election Day.)

The letter includes three lines of bold, centered text at the top, in larger font than the body: “Kevin J. Moynihan” followed by “First Selectman” and then “Town of New Canaan.”

The Ethics Board also discussed Moynihan’s assertion that, through the complaint, the Code of Ethics has been weaponized in a political act.

Schott said, “The major concern of this entire process that I have about the entire thing that we have gone through is that we are weaponizing the Ethics Code for political purposes. OK? Because that gets back to the legitimacy of the complaint from a political point of view. I have to admit that all of the forms were followed in the complaint in order to get it to this committee, OK? Which throws it into our jurisdiction. The one aspect though, and overriding concern, that I have is that political is supposed to be a free-for-all.”

Clauss interjected, asking whether that means town resources can be used in a political act “willy-nilly.”

“You are drinking the Kool-Aid about weaponing this stuff,” he said. “It is not a weaponization. It is a legitimate complaint. This document stops us in our tracks.”

Clauss apologized for interjecting and using a raised voice.

Garner said, “I don’t think we would be here today if we did not agree that the complaint was worth investigating further and pursuing, so that in and of itself—and that is why I made the statement that I did—I think it is important for this to be an educational opportunity regardless of whether it is in fact a violation. There are legitimate concerns about the way in which this was written, the way in which this was handled in the role in which our first selectman has.”

Ethics Board member Alexandra Van Nes said the assertion about “politicization” was a red herring.

“I have a strong reaction to that claim in the response, that this was weaponizing the ethics process,” she said. “I really reject that. I don’t think it did… I would not want to see that happen and I don’t think this did that.  This is a legit complaint.”

Clauss said, “It fits a political narrative to do that and I don’t think we need to bring in those political narratives.”

It isn’t clear what sort of sanction or remedy Moynihan would face if the Ethics Board makes a finding that the Code of Ethics was violated. Part of the difficulty is that any recommendation from the Ethics Board would go to the Board of Selectmen, which includes the subject of the complaint (Moynihan) and a witness for the complainant (Selectmen Kathleen Corbet).

Responding to a question from Schott about possible recommendations from the Ethics Board, Clauss said, “Let’s assume just for the moment we find violation of use of the town resources… What would be the most appropriate type of recommendation? For me, how about an apology? How about an apology to the town? Or something like that, or a recommendation that there be further ethics training or that certain steps be taken with respect to the ethics training that does exist. I don’t think we’re there yet but those are the types of ranges of things—we have no ability to fine, if that’s your question.”

Members of the Ethics Board also talked about whether they should open up their meetings to a public hearing or other format where Moynihan could respond to what they’re investigation has come to focus on, how that type of hearing would run, how to properly notice it, and whether future deliberations about the complaint should continue to be held in a public session or in executive session.