Hearing and Special Meeting
Tuesday, May 1, 2007

Chairman Michael Coffey called the Meeting to order at 7:10 p.m.

I. ROLL CALL

Council Members Richard McQuaid, Carvin Hilliard and Michael Coffey acknowledged the call of the roll as being present.

II. ACCEPTANCE OF MINUTES

Councilman McQuaid made a motion to approve the minutes of April 4, 2007. The motion was passed with two votes in favor, Councilman McQuaid and Councilman Coffey, and Councilman Hilliard abstained.

III. FINAL REVIEW OF THE PROPOSED ETHICS COMMITTEE ORDINANCE

Chairman Coffey announced that he was pleased with the revisions that had been made and thanked the Law Department for its assistance. He indicated that he believes the draft Ethics Code should be scheduled for a Joint Meeting with the Ordinance Committee for a final public hearing and urged action on the item. He noted that Norwalk had one of the lowest ratings with regard to the current status of our Ethics Ordinance.

Councilman Coffey then made a motion to put the matter to a Public Hearing and the matter carried unanimously.

IV. VOTE TO GO INTO EXECUTIVE SESSION

No vote was taken to move into executive session.

V. HEARING ON ETHICS COMPLAINT

Chairman Coffey then indicated the Committee would take up Item 5 – the Ethics Complaint under Norwalk Code § 32-8B concerning Anne Carbone, Chairman of the Norwalk Zoning Board of Appeals.
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Chairman Coffey stated that he had expected the matter to be held in executive session so as to protect the interests of the Respondent. Chairman Coffey noted that the Committee had, in fact, received a letter from Attorney Thomas Cassone, representing Ms. Carbone, indicating that she waived the right to have the matter held in a confidential executive session and, therefore, the matter would be discussed in an open public meeting.

Chairman Coffey then read into the record the Complaint submitted by Attorney Michael L. Goldman on behalf of Carlos A. Diez and Diana P. Diez with regard to the property they owned at 31 Heather Lane, Norwalk, Connecticut. A copy of that Complaint, with exhibits, is attached hereto. After presenting the Complaint and identifying the exhibits, Chairman Coffey asked Attorney Cassone to respond on behalf of Ms. Carbone.

Attorney Thomas Cassone began his presentation by first noting that the Complaint of the Diez’s had been withdrawn, as he was so advised by Peter Nolin of the Law Department. He then noted that Ms. Carbone approved of the Committee’s efforts to protect confidentiality, but he noted that her reputation had been sullied by the public release to the press of the original Complaint by the lawyer for Mr. and Mrs. Diez. He therefore noted that Mrs. Carbone believed she needed to respond publicly in order to attempt to clear her name.

Attorney Cassone emphasized that under the current state of the City’s Ethics Code, which was fairly deficient, there was no basis to proceed with the Complaint. He noted that, since the Complaint had been withdrawn, there was no pending Complaint before the Committee. He pointed out that he had no witness to cross-examine, no Complainant to confront, and therefore argued that the Common Council Ethics Committee had no jurisdiction to hear the matter.

Chairman Coffee inquired whether Mr. Cassone had any particular legal authority for the proposition he had raised. Attorney Cassone argued in response that it was evident from the language of the Code but he had no further authority.

Attorney Cassone then read his opposition statement into the record. A copy of the response of Anne Carbone is attached hereto. After reading the statement, he noted that his client was suffering grievous injury and needed to have this matter resolved expeditiously. He noted that while he had requested one original postponement, the matter had subsequently been continued on two occasions and that the Committee needed to end Ms. Carbone’s suffering by reaching a decision on the matter. He emphasized again that the matter should not be considered and that the matter should be dismissed outright based
on the withdrawal of the Complaint. Chairman Coffey inquired whether Mr. Cassone had any Motions in Limine to make. Attorney Cassone said he did not.

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The Chairman then called for a five-minute recess before the Committee would proceed with the evidentiary inquiry.

A recess was held from 7:48 to 7:57 p.m.

Upon resuming the Hearing, Chairman Coffey requested advice from the Corporation Counsel with regard to whether the Committee had authority to proceed. Attorney Nolin advised that, merely because the Complaint was withdrawn, it did not mean that the Ethics Committee lacked power to investigate. He noted specifically that § 32-8A of the Code, governing duties of the Committee of Ethics, provided that the Committee could receive and initiate complaints of violations and that in this case such a complaint had been received. Attorney Nolin also advised that there was no evidence under the current Code that the complainant had the power to withdraw a complaint once it had been received.

Attorney Cassone then argued in response, respectfully, that since it had been withdrawn it should be deemed no complaint. He reemphasized that there were no witnesses for him to cross-examine and that fundamental fairness dictated that the matter should be dismissed.

Chairman Coffey moved that they should consider Attorney Cassone’s motion and framed it that the matter should be dismissed based on the withdrawal of the Complaint.

Chairman Coffey then moved at 8:12 p.m. to move into executive session for the purposes of obtaining procedural legal advice on how to consider the motion and how to proceed with the Hearing if the motion failed. The motion to move into executive session carried unanimously.

The Hearing was adjourned from 8:12 to 8:17 p.m. while the Committee moved into a caucus room for purposes of seeking legal advice in executive session.

At 8:17 p.m. the Committee came out of executive session and Mr. Coffey asked for Corporation Counsel to recast the motion. Attorney Nolin indicated that a vote in the affirmative would be a vote in favor of a dismissal of the action based simply on the withdrawal of the Complaint. A vote in the negative would continue the Hearing.

Chairman Coffey called the motion and on a roll call Councilman Hilliard voted no, Councilman McQuaid voted no and Chairman Coffey voted no.

At that time Chairman Coffey indicated the Committee would seek testimony by the staff witnesses regarding what had happened on the underlying facts of the case.

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He called Erin Mannix, Deputy Zoning Inspector. Ms. Mannix outlined her responsibilities with the Zoning Department. She recalled the investigation of the property at issue and indicated that she did not receive any specific complaint directly from any person, but rather a written complaint was left in her mailbox with a request for inspection. She indicated she inspected the property at 31 Heather Lane and determined that there was not a second dwelling unit at the property and so noted it in the file. Attorney Cassone then inquired about whether Michael Greene, the Zoning Director, was Ms. Mannix’s direct report. She indicated that he was, and in response to further questioning by Attorney Cassone, indicated that her work was not directed by Ms. Carbone. She indicated that in this instance she received no complaint from Ms. Carbone. Ms. Mannix confirmed that she received numerous complaints everyday through the anonymous process of them being left in her mailbox.

Chairman Coffey then asked the Norwalk Zoning Inspector, Aline Rochefort, to respond to certain questions. He inquired whether she had inspected the premises. She indicated that she had, and that she was uncertain as to the exact date, but she believed that it was July of 2006. She indicated that she was inspecting because there was a second complaint that emphasized that the original complaint had been for a second kitchen, rather than a second dwelling. She believes the second complaint was given to her orally by Ms. Carbone. She indicated Ms. Carbone gave her complaints somewhat frequently, and recalled that she had a stack of 50 – 60 complaints over a period of a few months. She believes she was given the second complaint directly by Ms. Carbone. She also indicated that, in response to the second complaint, she conducted an inspection and determined that there was in fact a second kitchen, even though there was not a second dwelling unit. She acknowledged that Ms. Carbone did not press her to make any particular finding. She further indicated that she did not overrule the first inspection result as a result of the complaint from Ms. Carbone.

Next, Michael Greene, Zoning Director, was called to answer questions. He indicated that he was aware of the property and the first and second inspections. He believes he authorized the second inspection because there was a picture attached to the complaint. He believed he gave the okay for Ms. Rochefort to go out and look at the property again. He was asked to explain the process and whether complaints were received anonymously from other bodies and individuals. He indicated that in fact such complaints were received by the Zoning Office all of the time and that they came from other zoning officials and, in some instances, from Council Members.

At that time the questioning of staff was completed and Chairman Coffey inquired whether Mr. and Mrs. Diez were present or had any representative in the room. There was no response. Chairman Coffey inquired whether Ms. Carbone wished personally to make any presentation, at which time Attorney Cassone indicated that he did not believe it was necessary for her to make a statement.
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Thereafter, a motion was made by Councilman McQuaid to dismiss the Ethics Complaint.

In speaking to the motion, Councilman McQuaid indicated that he was very troubled by the nature of the underlying Complaint and was concerned that something wrong had been done. He indicated however that, on the other hand, he was very concerned that the other side, meaning the Complainant, was not present for him to ask questions. Based on their absence, he was unable to determine whether anything had been done wrong by Mr. and Mrs. Diez. He indicated that, given the lack of Complainant witnesses, he could not see going forward from here and therefore was advancing his motion to dismiss the Complaint.

Chairman Coffey indicated that he wished to second the motion to dismiss the Complaint. He stated that he appreciated the excellent presentation by Attorney Cassone and appreciated the number of people present to indicate their interest in the process.
He indicated that in the absence of the Complainants and, more particularly, in the absence of any sworn statement, he was troubled by the fundamental failure of proof. He indicated however that, based on the record which had been presented, he was concerned as to how land use boards were handling various matters and noted that they should take special care when any matter that they were handling in any way implicated any aspect of their personal employment. He indicated that this was an aspect of the ethics rules which needed to be looked at into the future, but reiterated that he would be supporting the motion to dismiss.

Councilman Hilliard then indicated that, in fairness, he felt he had to vote in favor of the motion to dismiss. He indicated it was unfortunate that an attack had been made in the press which was not then supported before this Committee. He felt that fairness required a vote of dismissal when the witnesses did not appear.

At that point the motion was called and the Members of the Common Council’s Ethics Committee voted unanimously to dismiss the Complaint.

VI. ADJOURNMENT

At 8:39 p.m. – A motion to adjourn the Ethics Committee was made by Councilman McQuaid and the motion carried unanimously.

Minutes respectfully submitted by

Peter M. Nolin
Norwalk Corporation Counsel

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