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An appointed body voted unanimously Tuesday night to adopt a resolution saying that further investigation is warranted into a complaint that New Canaan’s highest elected official violated multiple provisions of the town’s Code of Ethics in the run-up to November’s municipal election.

The Ethics Board has not yet made a determination regarding the complaint lodged Nov. 1 by Micaela Porta, a town resident identified by the appointed body’s chair, Tucker Clauss, as president of the New Canaan chapter of the League of Women Voters. [Note: Porta contacted NewCanaanite.com Wednesday morning to clarify that she filed the complaint personally and not on behalf of the League of Women Voters, as spelled out in the Ethics Board’s resolution,]

Porta as complainant asserts that Moynihan “using his position as first selectman violated several sections of the town Ethics Code when he sent an undated letter to all residents of New Canaan prior to the town’s Nov. 2, 2021 municipal election,” Clauss said during the meeting, held in the Town Hall Meeting Room. (The full text of Moynihan’s letter is printed at the end of this article.)

Specifically, Porta in the complaint “asserts that the letter mischaracterizes the voting rules at issue, that it was ‘misleading to voters seeking to understand how our municipal government works’ in general and in the then-pending election, and that the letter thereby granted preferential treatment to candidates preferred by the respondent,” Clauss said, citing the Ethics Board’s resolution.

Three sections of section 17-2 of the Code of Ethics “Standards of conduct” section are at issue—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.”

Moynihan himself in a Dec. 6 reply “denied that there are any violations of the Ethics Code, and asserted several defenses to the allegations,” Clauss said.

“Among other things, the reply asserts that ‘the statements and complaint are false, and the complaint should be immediately dismissed as it fails to state a violation of the Code,’ ” Clauss said, citing Moynihan’s reply. “And that ‘the complaint is completely devoid of legal merit and attempts to politicize the Board of Ethics process in violation of my right of free speech, guaranteed by Article I of the U.S. Constitution.’ ”

Yet the Ethics Board, in a resolution that the appointed body approved by a 5-0 vote, finds that:

1. “The use of the title and office of first selectman, town of New Canaan, a position held in trust for all New Canaan residents, subjects the letter to the Code.”
2. “The legend in the footer referencing the ‘RTC’ and the reference in the letter to ‘leading the Republican slate of candidates’ may raise a question of whether the letter was an expression of protected political speech.”
3. “Among the issues to be considered is whether the letter can be protected political speech when respondent used the authority of his town office, a valuable town resource, to influence new resident voters with what may be a partisan interpretation of local election dynamics. Other questions include whether the interpretation was correct and what resources were used to create and send the letter.”
4. “At this stage, the Ethics Board must decide only whether there is probable cause to believe that a violation of the Code was made. This is not a final determination on the merits of the complaint, but rather a preliminary finding that the allegations in the complaint and the assertions in the reply warrant further investigation.”
5. “We find there is a reasonable basis to believe that the letter may breach section 17-2B(5)(c), 17-2b(6) and 17-2b(8) of the Code, requiring further investigation.”
6. “We find there is no reasonable basis to believe the letter breaches section 17-2b(1)(b) of the Code.”

The section of the Code of Ethics cited in No. 6 above refers to a provision regarding conflicts of interest when an elected or appointed official has a financial interest in a matter.

The Ethics Board ultimately “finds probable cause under section 17-2b(5)(c) of the Code to conduct further proceedings to determine whether the letter violates” the sections cited above.

According to the resolution, the Ethics Board during its meetings reviewed the allegations, complaint, response letter, interviewed Moynihan, Porta and “witnesses identified in the complaint,” Clause said, and obtained copies of related electronic communications.

Moynihan has until Feb. 11 to file response, and may request an extension to that deadline.

Members of the Ethics Board include Clauss, Secretary Tammie Garner, Steven Simon, Robert Schott and Alexandra Van Nes. Schott and Garner attended the meeting in person, while there others attended via teleconference. Under the Code of Ethics, “The Ethics Board shall consist of five electors of the Town who shall serve without compensation” and “No more than three shall be registered in the same political party.”

The Ethics Board discussed the complaint in executive session for more than 90 minutes before reopening a public session of the meeting to vote on its resolution. Other than NewCanaanite.com, no one else was in attendance.

Tuesday night’s meeting was the fifth where the Ethics Board discussed the complaint, and the first where details were disclosed publicly. During meetings on Nov. 9, Nov. 23, Dec. 7 and Dec. 10, the Ethics Board discussed the complaint in executive session only.

Documents including the complaint itself, response and related written communications will be made public with minutes of the Ethics Board meeting, likely toward the end of this week, officials said.

The Town Council adopted the Code of Ethics four years ago.

Here’s the full text of letter in question, including words in bold or uppercase:

“Kevin J. Moynihan
First Selectman
Town of New Canaan
Dear New Resident,
As a newcomer to New Canaan, you may not be familiar with the upcoming municipal election on Tuesday, November 2, and you may be confused by the ballot. I am writing to help explain the process for voting.
I am proud to be leading the Republican slate of candidates on the November 2 ballot, or ‘Row B.’ In addition to our unopposed incumbents in the offices of First Selectman, Selectmen, Town Treasurer, Town Clerk, Town Council and others, we have a very important contest for the Board of Education this election cycle.
This year, 5 of the 9 BOE seats with 4-year terms are up for election and there is also a special election for a BOE vacancy with a remaining 2 years of a 4-year term. Because Democrats, as the minority party in New Canaan, are guaranteed a minimum of 2 sears under CT law, there are only 3 Republican candidates for the 5 seats with 4-year terms versus 5 Democrat candidates. I urge you to vote ONLY for the ‘Row B’ Republican candidates: Julie Toal, Phil Hogan, and Dan Bennett for 4-year terms, and Hugo Alves for the special election seat. The remaining two seats can be determined by voters under guaranteed minority party representation.
The Republican BOE candidates all have young children in our schools and are accomplished individuals who stand for academic excellence, fiscal common sense, local control, better curriculum oversight, especially on new initiatives and improved communication to all parents. Due to the ongoing coronavirus pandemic, there is ‘no excuse’ absentee ballot voting under rules adopted by the CT legislature last summer. If you will be unable to or prefer not to vote in person on November 2nd you may go to Town Hall, 77 Main Street, any weekday before 8:00AM and 4:00PM and vote by absentee ballot at the Town Clerk’s office.
Sincerely,
Kevin (signature)
REMEMBER: VOTE ROW B – ONLY!
Paid for by the New Canaan RTC, Gene Goodman Treasurer”