Letters: 'Conflicts' controversy erupts over Bernhard's Baron's South role
Published 6:02 pm, Saturday, April 25, 2015
Editor's note: In advance of Tuesday's session of the Representative Town Meeting when the legislative body is expected to take up a committee recommendation that it overturn the Planning and Zoning Commission's recent designation of the Baron's South property as open space, a letter was received Saturday by the Westport News alleging a conflict of interest by G. Kenneth Bernhard, a member of the Baron's South Committee. Given the serious nature of the allegations and the short time frame before the RTM session, a response from Bernhard was invited. The two letters appear below:
An open letter to the members of the RTM:
As many of you know, I have been opposed to the proposed senior housing project on Baron's South for many years. My view has long been that the deal proposed by the Jonathan Rose Companies was unfair to taxpayers since the town will get too little in return for donating such a valuable asset. And it has always puzzled me that Ken Bernhard, who co-chaired the Baron's South Committee and is one of the project's prime cheerleaders, seemed so determined to push ahead with the project -- even in the face of growing evidence that the project was seriously flawed and could not meet the town's needs.
I learned today that Mr. Bernhard has multiple conflicts of interest that were never disclosed. First, Cohen & Wolf, the law firm in which he is a principal, is counsel to the Jewish Home of Fairfield (JHF), which stands to gain a lucrative contract for services if the Rose project goes forward. In fact, in a bulletin last summer, the president of JHF touted how great the business would be for the JHF. Second, Martin F. Wolf, another senior attorney at Mr. Bernhard's law firm, sits on the Board of Directors of the JHF.
Mr. Bernhard's failure to disclose these connections and conflicts is especially egregious given the sensitivity of this issue and Mr. Bernhard's past behavior. At a Board of Finance meeting in October 2012, a number of members of the public complained that the RFP process appeared to have been rigged in favor of the Rose Companies -- a suggestion to which Mr. Bernhard took extreme umbrage, demanding an apology. Nevertheless, in response to concerns about conflicts of interest, the members of the Baron's South Committee were specifically asked to stand and state whether they had any financial interest in the Rose Companies. Mr. Bernhard did not stand. His failure to reveal his firm's interest in this project may have been technically correct -- since the financial interest was in another entity -- but it was still materially misleading. As an attorney and a former elected official, Mr. Bernhard should know better.
For Mr. Bernhard to have served on the Baron's South Committee without disclosing these connections, which fatally compromised his ability to objectively evaluate the responses to the town's RFP, violate fundamental principles of justice and fairness. This is the equivalent of a judge owning stock in a corporation that appears in a contested matter in the judge's court. And I note that this is not the first time that Mr. Bernhard's ethics have been called into question. In 2010, he was forced to pay a $3,500 penalty after his improper campaign contributions were discovered.
All of these facts bolster the conclusion that the Rose Companies' proposal is a bad deal for Westport and its taxpayers. The Planning and Zoning Commission's decision to designate Baron's South as open space was the right thing to do. I hope that you will decide NOT to overturn that decision.
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It distresses me that the discussion about a project designed to address the needs of hundreds of Westport seniors who require affordable housing options has devolved into the kind of ugly debate endemic in Washington, specifically, don't discuss the issues, unleash a personal attack on your opponent.
Curiously, Ms. Jacobs appears to be guilty of the very offense that she charges me with; i.e., an undisclosed bias. She does not divulge in her letter that she is the co-chair of a political party, "Save Westport Now," whose agenda appears to oppose development in town regardless of its merits. Apparently, the unanimous consensus of the RTM subcommittee to overturn the vote of her party's candidates has given rise to her invective.
I have lived in Westport for more than 40 years, and for most of that time, I have been actively engaged in the community's affairs. I have given of my time by holding positions on the ZBA and the Board of Selectmen. In addition to serving as town counsel for three administrations, I have represented Westport in Hartford. Throughout this time I did, and still do, provide free legal services to many of the non-profit organizations in town. I sit on multiple boards providing my time and energy helping our friends and neighbors. It's all been a labor of love. The risk, of course, in being so active is that occasionally there are instances where the roles may overlap. These instances are part of life in a small town and are not considered conflicts in the forums in which these things are adjudicated. A community cannot function without this reality of professional and personal overlap of its citizens' talents and interests.
Five years ago, I was asked by First Selectman Joseloff to give more of my time to Westport by sitting on the Baron's South Committee. The eight-person committee was made up of volunteers serving in a private capacity. None of us had, nor did we ever have, any decision-making authority. Since that time, I have donated at least 300 hours serving on this committee, a large portion of which was spent long before there was a proposal to do anything. When a concept for providing affordable housing for seniors was ultimately advanced, the town sent out a request for a proposal. Our committee of volunteers reviewed the proposals and made a unanimous recommendation to accept the proposal submitted by Jonathan Rose. The decision to work with Jonathan Rose was made by elected officials.
The substance of Ms. Jacobs' letter is that she claims I have a conflict of interest in serving on the Baron's South Committee because she has learned that one of the 50 lawyers at my law firm does work on totally unrelated matters for Jewish Senior Services, an organization that has joined with Jonathan Rose to provide services if and when the project is approved and built at some time in the very distant future. (Ms. Jacobs is incorrect when she asserts that attorney Martin F. Wolf is a senior attorney at Cohen and Wolf in that he is "of counsel," retired from active practice years ago, and has no financial interest in it). Ms. Jacobs would argue that I should have conducted a conflicts check with my law firm. This would have been appropriate had I been serving as legal counsel or in any other professional role -- but I was not. I was acting as a private citizen in a private capacity doing volunteer work for my community. Ms. Jacobs can spin the facts and connect the dots any way she pleases, but there is no legitimate substance to her point. Her criticism is inflammatory and its purpose is more about advancing the political agenda of "Save Westport Now" than having a meaningful exchange.
We have an important issue confronting our community; i.e., whether to preclude the use of Baron's South for any municipal purpose, even the expansion of the senior center, or to leave open the discussion on how best to use this valuable town asset for affordable housing or otherwise. Reasonable people can disagree and Westport deserves a respectful exchange on this issue.