#MiddleburyCT #EthicsCommission
By MARJORIE NEEDHAM
Middlebury’s Ethics Commission is considering an ethics complaint filed against Selectman Jennifer Mahr. The complaint, filed in the town clerk’s office April 18 by Francis L. Barton Jr., alleges two things. One is that Mahr has a financial and personal conflict of interest, in violation of Section 6 of the Middlebury Code of Ethics because she is involved in two lawsuits against town boards and commissions, specifically the Conservation Commission (CC) and the Planning and Zoning Commission (P&Z), and failed to disclose these interests in writing to the Ethics Commission. The second is that, at the March 4, 2024, Board of Selectmen meeting Mahr violated Sections 10 and 11 of the Code of Ethics in that she represented private interests in discussions before the Board of Selectmen (BoS) and did not disclose those interests or recuse herself from those discussions. The March 4 BoS meeting discussion of concern focused on whether or not the town should foot the bills to defend the commissions against the lawsuits.
Based on the May 21 Ethics Commission meeting minutes, they discussed the complaint and then decided to notify Mahr of the complaint and invite her to attend a meeting to respond to it. Mahr, with attorney Keith Ainsworth representing her, was present at the May 28 Ethics Commission meeting.
Chairman Paul Bialobrzeski invited Ainsworth to present Mahr’s response. He and Ainsworth first agreed more information would be offered at a future meeting. Ainsworth asked if there wasn’t going to be presentation of the complaint. He noted court procedure is to have the prosecution go first and the defense second. Chairman Paul Bialobrzeski said, “We’re not the ones bringing the complaint. We’re here to judge whether the complaint has merit.”
Ainsworth then explained his legal views of the allegations in the complaint. He said there is no obligation to disclose information to the Ethics Commission if there is no personal or financial gain. He said the lawsuits involve no dollars changing hands. They are simply challenges to the quality of the decisions made by the CC and P&Z. These are administrative appeals, and there is no monetary award,
As for personal gain, while Mahr is president of the Middlebury Small Town Alliance (MSTA), it is an LLC, a separate legal existence. “A person is not the LLC,” he said. He also said Mahr is not personally suing the town. He said the personal gain text in the code is meant to prevent actions like someone using their position to get a job for a relative.
As for disclosing her MSTA relationship, Mahr said “I clearly ran a campaign based on opposition to the distribution center.” She said she believed everyone understood her relationship with the MSTA. She also presented a Schedule E showing she gets $0 as president of the MSTA. “All the money that is donated goes to pay the bills,” she said.
Mahr said the point she was trying to make during the discussion on whether or not the town should pay for the legal defense against the two lawsuits at the March 4, 2024, board meeting was that the charter says the board, not just the first selectman, has the authority to decide whether or not to pay the fees, and the board needs to vote on the matter. To date, no vote has been taken. Yet, she noted, the Board of Selectmen did take a vote saying they opposed the distribution center.
Ainsworth said First Selectman Edward B. St. John’s statement that the town was required to defend the lawsuits is incorrect. “They are not suing the board members in an individual capacity, so the town is not required to defend the lawsuits,” he said. “They have the discretion to choose whether or not to defend them.” He said the MSTA, on the other hand, has to defend the lawsuits because they brought them.
Commissioner John J. Holmes said it seemed logical for the town to defend decisions by the volunteers on its boards. He also repeatedly mentioned “the public good,” and said the bigger public good was the way the town functions. “If we don’t support people who serve on boards, we’ll have trouble getting people to volunteer,” he said.
Ainsworth noted the definition of public good varies from person to person and this is a political question. He said the decision to support or not support defense of the lawsuits is also a political question. He said Mahr has the right to free association and freedom of speech.
He said she has a right to disagree, to hold a political position on public policy. “You use your position to defend your political position,” he said. “State and federal governments defend this.”
Mahr said, “My obligation as a selectman is to make sure the Board of Selectmen follows the rules.”
Commissioner Margaret Smith mentioned the issue of control and noted an LLC officer like Mahr at the MSTA makes all the decisions on what the LLC will do. She added there may be a conflict of interest for Mahr because as a selectman she needs to represent all the people, not just those who share her point of view.
Commissioner Vinnie Graziano Sr., who came in late due to traffic issues, said Mahr founded the MSTA, but as a selectman her responsibility is to represent the town. “You can’t have it both ways,” he said.
Commissioner Sharon Bosco said she felt no decision should be made at the meeting and suggested the commission have an attorney for the next meeting.
Bialobrzeski agreed the group needed to meet again and all present settled on the date for the next meeting, at which discussion of the complaint will continue. It will be Tuesday, June 25, at 7 p.m. in the Town Hall Conference Room.
Ainsworth said while he and Mahr respect the Ethics Commission’s authority, he thinks the town’s ethics code could be improved. “It has a lot of ambiguities,” he said, “and much of it appears to have been cribbed from the state’s ethics code.”
