Both sides file motions in Powers lawsuit

There was a scurry of activity in the past week as both the plaintiff and defendant filed motions in the lawsuit of Michael Powers vs. the town of Wilton and Board of Selectmen.

Powers, the plaintiff, filed a memorandum of law on Nov. 25, in opposition to a motion to dismiss his complaint made by the defendant, town of Wilton and Board of Selectmen, on Oct. 22.

In turn, on Nov. 27, the defendant filed an objection to a motion made by Powers on Oct. 30, to disqualify the town’s legal counsel, Berchem, Moses, P.C..

Both motions were made in connection with the lawsuit filed by Powers on Sept. 29, who at the time was a petitioning candidate for first selectman.

In his complaint, Powers asked the court for a temporary and permanent injunction against the Board of Selectmen, alleging the board did not, on a number of occasions, follow Robert’s Rules of Order for making a motion and thus 37 motions made by the board in 2019 must be vacated and future motions must follow Robert’s Rules and other provisions of town policy.

Motion to dismiss

In the Oct. 22 motion to dismiss the case, the defendants claim Powers lacks standing in the matter and his application fails to state any claim upon which relief can be granted. Further, the motion claims the defendants — First Selectwoman Lynne Vanderslice and Selectmen Josh Cole, Lori Bufano, Deborah McFadden and David Clune — are entitled to legislative immunity.

Powers refutes those claims in his Nov. 25 memorandum.

He claims he has both statutory and taxpayer standing in the case. Statutory standing because particular legislation grants standing to those who claim injury protected by that legislation, which he claims is the case in this matter. He also claims to have taxpayer standing because he is a taxpayer of the town, and the Board of Selectmen could make future “defective” motions which could cause an increase in his taxes.

He refutes he has “failed to state any claim upon which relief can be granted.” He claims the board’s passage of motions outside of the proper procedures is a “detriment to the very stability of local government,” and his request for an injunction seeks to terminate “such lawless actions by the defendant.”

As to the claim that the first selectwoman and individual board members are entitled to legislative immunity, Powers disagrees. He counters that municipal officers “are not immune from liability for negligence arising out of their ministerial acts.”

Disqualification of legal counsel

In his Oct. 30 motion, Powers requests Berchem Moses P.C., of Milford, the law firm representing the defendant, be dismissed because of a likely conflict of interest.

Powers claims Ira Bloom, the town attorney for Wilton, and a partner with Berchem Moses, is a necessary witness in the suit regarding information Bloom provided to the Board of Selectmen about requirements about receiving/responding to Freedom of Information Act (FOIA) requests.

Powers asked the court to order Bloom to submit to a deposition and testify at any hearings.

In their Nov. 27 objection, the defendants say there is no conflict of interest with Berchem Moses, based on the Connecticut Practice Book’s rules of professional conduct which delineates what constitutes a conflict (primarily conflict an attorney has with another client).

They claim the defendants’ interests are “aligned” and Berchem Moses’ representation of the defendants is not adverse “to any other client or a significant risk that representation will be limited by responsibilities to another client.”

Defendants also claim Bloom is not a necessary witness and that he could serve as legal counsel even if he were a necessary witness. They claim he should not be disqualified or required to testify.

They argue that a necessary witness is someone who has material information, “that no one else can provide,” which they say is not the case with Bloom. “Attorney Bloom’s document (a guide about FOIA procedures) offers no opinion as to the issue presently before the court. As such his testimony would be neither relevant nor material,” they say.

Assuming the material was relevant or material, they say the FOIA guide he provided to the board is not unique to him and the information is obtainable elsewhere, and he therefore should not be called to testify.