Ethics Investigation: Moynihan Bemoans Personal Legal Fees, News Coverage

New Canaan’s highest elected official on Tuesday bemoaned an ethics complaint lodged against him last year, as well as personal legal fees he incurred in fighting against it and local news coverage of an appointed municipal body’s public meetings as it investigated the matter.

The complaint lodged Nov. 1 with the Ethics Board—accusing First Selectman Kevin Moynihan of violating the town’s Code of Ethics by using the authority of an elected office to write a letter endorsing Republican candidates for the Board of Education in the run-up to the municipal election—“has not gotten a lot of press except by Mr. [Michael] Dinan who has managed to make several articles out of something that initially was confidential,” Moynihan said during a regular Board of Selectmen meeting.

“But also, conveniently, Mike manages to attend meetings at night that he otherwise wouldn’t attend, so this has been a bit of a show. I think the whole thing has been rather disappointing and certainly a disservice to me. I received a bill yesterday for $7,500 for personal legal expenses that I am not happy with, and I think this whole matter has been mishandled in many ways. So I also would make the comment that never in the future should an Ethics Board complaint be processed without the advice of independent legal counsel against an elected official, or perhaps anyone in town office.”

Made during a section of the selectmen meeting reserved for general matters before the town, Moynihan’s comments came days after the Ethics Board settled on a resolution to the ethics complaint filed by New Canaan resident Micaela Porta.

During their April 27 meeting, Ethics Board members said that although Moynihan likely ran afoul of the Code of Ethics by using a letterhead that invoked the authority of elected office, the language in the Code itself is not specific enough to cite such a violation, and so it should be updated to ensure it doesn’t happen again. 

“The letterhead was confusing and, for me, it made it not obviously a political endorsement—it made it less so,” Ethics Board member Alexandra Van Nes said during the meeting, held at Town Hall. “It was confusing. The letterhead looked like town letterhead. I do not know what town letterhead looks like. And if I was new to town I certainly wouldn’t know.” 

She added, “I accept that maybe the Code is not crystal clear on this point and we can use this as an opportunity to issue guidance. I think that’s a really good idea. So I have no problem going that way. I wish, through, that there had been some acceptance of a misstep or a mistake instead of such a forceful rejection of the possibility that it was a mistake. I think it might have been a mistake made in haste—just doing something quickly and thinking there was nothing wrong with it. That seems to me a pretty reasonable way that this came about. But that’s not what we heard in response. We got a lot of pushback. And I don’t mind the pushback or the criticism but to me it’s more of a more of a dug-in position, which was interesting. I find the letterhead confusing, I find the letter confusing as well, the purpose of the letter, and it could be a violation. But if there the rules are not perfectly clear then I think it’s an opportunity to issue guidance so it is clear going forward for the next person.”

The Ethics Board is expected to draft an advisory opinion regarding an update of the Code at a future meeting, for submission to the Town Council. (The five-member Ethics Board also unanimously agreed that Moynihan’s demonstrable use of town resources—a work email, Town Hall scanner and office during work hours—while technically running afoul of the Code, was too minor to rise to the level of a formal violation.)

Chair Tucker Clauss, citing a 2010 Supreme Court decision, noted that “an elected official’s ‘power is not personal to elected official but belongs to people.’ ” 

“The elected official has no personal right but acts as a trustee for his constituents,” Clauss said. “The town’s view and the Supreme Court’s views jibe: The office is not personal to the elected official but is held for the benefit of the people as trustee. So if I had been asked ahead of time, I would have said, ‘Don’t use the letterhead. It looks too much like you are adopting/using the power/position/authority of the first selectman’s office for political purposes and placing the imprimatur off that office on a political letter.’ ”

Yet Clauss also conceded that when he and others drafted a Code of Ethics for the Town Council’s review and “tried to eliminate what we considered soft, fragmentary language and tried to construct a Code with clear rules,” they couldn’t anticipate every situation. 

At the time of its drafting, Ethics Board members had discussed with the Town Council “that the Code could be effectively supplemented by our own decisions and opinions as we created precedent by the rulings we generate,” Clauss said.

As such, Clauss suggested that the Ethics Board may “conclude that the letterhead use was inappropriate, that it may very well have been a violation, but not find it a violation and rather set down an opinion that says, in effect, if it or something like it is used again, it will be a violation, generating precedent and guidance for those who come after, or even for the first selectman in his future writings.”

Ethics Board member Tammie Garner said Moynihan’s letter “falls on the side of being a misleading piece of mail.”

“I definitely think it errs toward the side of being a violation because of the use of the position in the same way that we are using other resources, but the position itself is a resource, it is a town position that holds authority and because of the fact that this letter is intended to go to a new resident who isn’t going to know any different and it’s educating them on the voting process and law,” she said . “So there is a lot wrong with this letter.”

She added that based on Moynihan’s statements, “he does believe he had every right to do that and to use his position, in fact, in this way for political purposes.”

“So there is no mal-intent here, I think he has truly done what he thought was right,” she said.

Ethics Board member Bob Schott said he would support the issuance of advisory guidance, though he disagreed that Moynihan’s letter otherwise ran afoul of the Code because it came in an envelope from the RTC, not the town, and ‘RTC’ also was written at the bottom of the letter in a sentence that read “Paid for by the RTC, Gene Goodman Treasurer.” (The letter and complaint can be viewed in full here.)

“That, to me, clearly delineates the line that this piece holistically is a political advertisement,” Schott said.

Moynihan has called the Board’s decision not to dismiss the complaint outright a “perversion and politicization” of the Code of Ethics. His lawyer, Robert Russo of Fairfield-based Russo & Rizio LLC, has argued, in part, that the Ethics Board did not have jurisdiction to the consider the complaint, which rightly should go to the State Elections Enforcement Commission

It isn’t clear why Moynihan hired his own lawyer. A complaint lodged with the Ethics Board does not amount to a criminal or civil action and the appointed body itself cannot impose fines. Remedies that members have contemplated in Moynihan’s case included calling for him to apologize to constituents or get more training. (In any case, Selectman Nick Williams has signaled that he would take no action in the matter, regardless of the Ethics Board’s findings.) 

Russo attended Ethics Board’s April 27 meeting, as did Moynihan’s wife, Mim, Town Councilman Penny Young and RTC Chair Christopher Wilson, among others. Held at Town Hall, the Ethics Board’s meetings are not televised, live-streamed or audio-recorded (except by the press).

It also isn’t clear how effective Moynihan’s legal strategy has been. The Ethics Board during its most recent meeting quickly dismissed one argument from the respondent—similar to points that Wilson had raised in March in commenting on a New Canaanite article—that the appointed body cannot “present matters for inquiry or investigation on its own initiative,” under the Code. (The Ethics Board noted that it was focused on matters that arose out of its investigation, itself prompted by Porta’s complaint.)

As it was filed prior to the election, Porta’s complaint did not suggest that Moynihan’s letter affected the outcome of the Board of Ed race. It is unclear whether Moynihan’s endorsement had any effect, or if it did, which party benefitted from it.

In summarizing the Ethics Board’s findings during Tuesday’s selectmen meeting, Moynihan said that the appointed body “basically” had “concluded that there’s no Ethics Code violations.”

He also suggested that there would be more to come for Selectman Kathleen Corbet, whom Porta had listed in the complaint as one of the witnesses who would be able to corroborate the allegations against Moynihan. Corbet’s involvement in the complaint, including correspondence with the town attorney, was fleshed out in communications that the Ethics Board received during its investigation. 

“I would also make the comment that I think Ms. Corbet’s role in this was in many ways improper, and I think that will come out in due course,” Moynihan said.

In response, Corbet said, “I wasn’t going to comment on that but I can. … I think every board and commission has changes as things go forward throughout history. I think it’s an important time always to review those and make the changes as necessary as well as I think it’s important for people to know the they have the right to submit as provided by the Ethics Board if they feel it’s appropriate and what is required is whether or not there is a review by somebody, a test, as you know there were two that had taken look at what was submitted and there’s nothing wrong with that. I know this is not something that you are encouraging not to consider if that is their right, as well, so I appreciate that and I am sorry that you have had to go through that and I think that’s potentially something you want to look at in terms of coverage, et cetera.”

The May 3 Board of Selectmen meeting was the first attended by Moynihan since he suffered a stroke on Easter morning. He opened the Selectmen Comments agenda item by saying, “First of all I got a lot of emails, text messages, calls with well-wishes and prayers for the event that occurred on Easter Sunday morning and as I told the Town Council I was very, very fortunate to get immediate ambulance service to Stamford Hospital and also Stamford Hospital gave me immediate treatment.”

”So my damage from the stroke is very limited,” Moynihan said.