#Middlebury #Perrotti #MVFD
By MARJORIE NEEDHAM
Former Middlebury Fire Chief Paul Perrotti’s appeal of his 2016 sentence handed down by the U.S. District Court in New Haven has been judged without merit by the U.S. Court of Appeals, Second District, in New York. Its decision, made public May 21, 2018, affirmed the sentence handed down by U.S. District Judge Jeffrey A. Meyer – three months in prison followed by three years of supervised release.
Meyer also ordered Perrotti to perform 200 hours of community service during his supervised release and to pay the town restitution of $10,000. The sentence came more than a year after a jury found Perrotti guilty on two of three counts of embezzling funds from the town while serving as its fire chief.
Perrotti said people in town ask him why he doesn’t just serve the sentence. “They say it’s only a light sentence,” he said. “But I say I didn’t do anything wrong.” His attorneys will now ask the appeals court to re-examine its decision.
Attorney Lori Welch-Rubin, a co-counsel of lead attorney Martin Minnella, said “There are legal errors in the decision and I hope they will fix it.” She is preparing a brief, to be filed June 4, asking the court to re-examine the case. She said she believes the court will change its decision if it does that.
Attorney Dan Thibodeau, an associate of Minnella, agreed with Welch-Rubin. He said, “They (the judges) read the case that the town could hire and fire. If they read the case the right way and see (the town) couldn’t hire and fire him, they will decide differently.”
Welch-Rubin said she believes two errors were made by the court: it incorrectly determined Perrotti was a town employee, and it allowed the prosecution to include in the $5,000 minimum amount needed for each count “disguised billing” that in fact was billing for work authorized by the town and the value of more than $13,000 in electrical parts. The trial court had thrown out the value of all but $202 in electrical parts because it determined that evidence met neither the criminal proof beyond reasonable doubt standard nor the civil preponderance of the evidence standard.
Welch-Rubin said the error involving Perrotti’s employment status stems from federal courts being unfamiliar with state municipal law. She said the cases cited by the court were wrong because in Connecticut they apply only if a town lacks a charter. Middlebury has a charter, and it does not give the town the right to hire or fire the fire chief, who is elected by Middlebury firefighters every two years. Welch-Rubin said she will ask the Connecticut Supreme Court to address the question of whether or not Perrotti can be an employee under the charter.
Residents may recall what happened back in 2007 when an attempt was made to amend the town charter to include a fire commission to oversee the Middlebury Volunteer Fire Department (MVFD). Then-Chief Perrotti and MVFD members strongly opposed it, and it was voted down at a town referendum.
The appeal listed four main arguments: that Perrotti was not an employee of the town, that the jury instruction did not adequately define “employee,” that two defense exhibits were excluded in error, and that the alleged use of “disguised billing” was not fraud because the town knew of Perrotti’s participation, did not object to it based on conflict of interest, and paid the invoices for his work because it added value.
In its decision, the appeals court cited various Connecticut statutes authorizing towns to establish fire departments and hire employees for fire-related work and also cited Middlebury’s Town Charter. It concluded there was not a legal error in the district court determination that he was an employee. Welch-Rubin maintains there was.
The appeals court declined to resolve the dispute regarding whether or not the jury instructions were inadequate because it concluded the results (a conviction) would have been the same and any error was therefore harmless.
The two defense exhibits allegedly excluded in error were Board of Selectmen minutes relating to the police chief and proposed 2007 revisions to the Town Charter creating a fire commission. The appeals court said the defense counsel stated in court the minutes did not need to be introduced, and the district court acted well within its discretion in deciding the proposed charter revisions were irrelevant and could not be introduced.
The appeals court declined to decide whether or not the “disguised billing” was fraud, saying the government could reach the $5,000 threshold for each count without including those amounts. However, the appeals court did not address the more than $13,000 in electrical parts ($8,492 in 2012 and $4,644 in 2013) the government included in each year’s $5,000 calculations. The district court had eliminated as evidence all but $202 of those electrical parts.
