A rare request from local selectmen for an advisory opinion by the Board of Ethics was rejected earlier this month because of a legal loophole apparently brought to light by Town Attorney David Grogins.

Following a closed executive session December 21 with another attorney, town labor lawyer Fred Dorsey, First Selectmen Pat Llodra said a request for advice on the matter of a town worker’s social network posts made during the last election season was returned with the ethics board taking no action. Reading from the ethics board’s official response, Mrs Llodra related that the board had reviewed the selectmen’s request regarding whether a town employee had violated the code of ethics, even though Mrs Llodra said that was technically not what was requested.

The letter went on to say that on the advice of Mr Grogins, the selectmen’s “request did not fall within the purview of an advisory opinion under Section 4-60(g) of the Town Charter.”

“Our actions pursuant to receiving this response was to meet with counsel and review our situation to elicit some advice,” Mrs Llodra explained. “I don’t believe we have additional action to be contemplated [on the matter].”

Asking for Selectmen Herb Rosenthal and Will Rodgers to weigh in, the two both expressed dismay over the response.

“I’m disappointed that the board apparently did not understand the action being contemplated was the action of this board — and I disagree with their decision,” Mr Rodgers said, adding that he was left assuming the ethics panel “misinterpreted” the original query and why selectmen were seeking the opinion.

However, rather than push the issue further, Mr Rodgers said he was satisfied understanding that anyone who felt aggrieved by the original incident was welcome to file an ethics complaint on the issue.

Mr Rosenthal, who had not yet been elected to the board at the time the original query was made November 2, nonetheless said he disagreed with the ethics panel’s response.

“It was something that was within their purview to give,” Mr Rosenthal said of the ethics board’s response. “It could be they misunderstood it — and I understand other people are free to make complaints. It’s a complicated issue”

Mr Rosenthal said since the issue was “all over the press,” that the Board of Education or others were also free to take action on issues related to the perceived offenses.

Minutes to the ethics board meeting during which the selectmen’s issue came up reveal a bit more detail about why no advisory was developed. According to the minutes, Mr Grogins advised the ethics board that advisory opinions could not be made on issues that already happened, and that since selectman sought advice on an incident that had already occurred, the ethics board could only entertain a complaint against any perceived offender.

But during the November 2 selectmen’s meeting, then-selectman James Gaston, Sr, acknowledged that filing an ethics  complaint on the matter would “presuppose judgment.”

Mr Rodgers further clarified during the earlier meeting that since selectmen are ultimately receiving the ethics board findings, they could not lodge a complaint and then expect to receive any resulting unbiased response without the appearance that guilt was predetermined.

Broader Examination Required

Mr Rodgers previously told The Bee that it was the selectmen’s intent to ask the ethics board to examine the entire situation, and not the actions of any individual who may be involved. He also reiterated that the language in the motion gives the selectmen the option of taking further employment action, even if the ethics panel finds there is no violation of the local code.

He clarified that “confidential information” as relating to the code of ethics refers to information an individual received because of the person’s town position. The ethics panel may determine it does not have jurisdiction in this case, because the confidential information in question did not come to any party in the course of their employment or service to the town.

The issue involves the so-called leaking and subsequent social network posting of a 2014 e-mail that contained information related to proposed terms of the school superintendent’s contract. That e-mail, from an attorney, was copied to Board of Education members, thereby suggesting the information was private and subject to attorney-client privilege.

There was also an issue involving a separate text message from June 2015 shared by a school board member that was also posted on a social network containing apparent communication among Board of Education members with content related to separate superintendent contract negotiations.

The issue involved Carey Schierloh, a part-time assistant in the selectmen’s office, who shared the e-mail in question on a social network site where it was seen and commented upon by dozens of local viewers. Ms Schierloh has declined to comment on the matter on the advice of legal council.

High Meadow Memorial

The selectmen’s meeting of December 21 also welcomed Kyle Lyddy, chair of the Sandy Hook Permanent Memorial Commission, providing a brief update on his panel’s actions.

The Bee previously reported that after working closely with Deputy Director of Planning & Land Use Rob Sibley and making a courtesy visit to share details with the Newtown Conservation Commission November 9, the memorial commission determined that a three- to four-acre-site tucked into a corner of the High Meadow at Fairfield Hills provides the optimal location for a 12/14 memorial.

“All future conversations will center on this piece of land,” Mr Lyddy said at the time. “The commission is aligned with this location based on our [ideal qualifying site] criteria, accessibility, and infrastructure.”

Mr Lyddy previously noted and explained to selectman that the panel’s energy will now be devoted to securing an area of the High Meadow, while at the same time preparing a request for proposal so anyone interested in tendering design ideas can do so for formal consideration. He said the commission anticipated some initial concerns, including the site’s proximity to a paved walking trail used daily by hundreds of residents and visitors who may not want to be exposed to the memorial and those who might come to visit it.

But the commission’s planned location should provide sight line barriers between the trail and the memorial.

Mr Lyddy told selectmen that if the High Meadow proposal comes to fruition, vehicle and handicapped access to the memorial would be provided via an abandoned farm road that runs along the northwestern tree line, and that a small parking area for handicapped visitors may need to be developed close to the site.

The memorial group’s chairman told selectmen that his group understood the Conservation Commission’s concern about ecological development if this were to be built and preserving the land of the High Meadow — and he affirmed to selectmen that conservation officials and volunteers remain “part of the process as we proceed.”

The memorial panel will also continue to partner with Newtown Park & Rec and its Phase III trail upgrades “to ensure what they’re proposing from a layout standpoint works with the memorial and not against it.” Mr Lyddy said the Fairfield Hills Authority is also supportive of the project — with no glaring concerns except advising the memorial group to not rush through the process.

Mrs Llodra referred to a small number of residents who opposed such a development in the High Meadow, but noted that Mr Lyddy and the commission followed every step laid out in guidelines for those proposing any kind of building or structures in what the first selectman described as “a piece of property so revered and protected.”

Mr Lyddy said ultimately, the 26 immediate families of 12/14 victims “think this land is appropriate,” admitting, however, that “there’s more listening to be done.”

Mr Rodgers closed discussion on this subject reminding Mr Lyddy that if he or the commission encountered any problems with individuals or boards who exercised “veto power” over the site to let him or Mrs Llodra know immediately.