An ethics complaint filed against Board of Finance Democrat Tom Kelly was withdrawn last week, during a hearing on the complaint. Now the Ethics Commission awaits legal counsel to determine if a hearing should still go forward.

The town’s internal auditor, James Henderson, filed the complaint in January. Through his attorney last Tuesday, he said he was withdrawing the complaint and will potentially file a civil lawsuit against Kelly.

“We are waiting to hear from our legal counsel as far as our action, since the complaint was withdrawn,” Ethics Commission Chair Thomas E. Lee said.

The commission has a meeting Friday, where it may discuss the issue further, if a legal opinion is prepared. Lee, who has served on the commission since about 2000, said an ethics complaint being withdrawn is new territory.

“This has not happened before, at least as long as I’ve been on the commission,” he said.

Henderson’s complaint claimed that Kelly’s statements at an October 28, 2013 meeting of the Board of Education — of which Kelly was an elected member at the time — violated a section of the Trumbull Code of Ethics. The section Henderson cited as being violated reads, “Officials and employees will conduct themselves with propriety, discharge their duties impartially and fairly, and make continuing efforts toward attaining and maintaining the highest standards of performance.”

Henderson’s complaint alleges that Kelly publicly questioned the auditor’s previous work experience, saying that Henderson had filed a lawsuit against a former employer and had been dismissed from that job for poor performance.

“Mr. Kelly questioned my competency and made false statements regarding my prior work experience,” Henderson’s complaint reads.

Kelly’s attorney, Bruce L. Elstein, said Henderson’s withdrawal came as a surprise.

“We showed up, ready to vigorously contest the allegations and prove the truth of what was said,” Elstein said. “Unexpectedly, Henderson, through his lawyer, indicated that they wished to withdraw the complaint, stating that Henderson could not get the relief that he wanted from this proceeding.”

Henderson declined to comment on the withdrawal.

Elstein said Henderson’s attorney indicated that the auditor may pursue a civil lawsuit against Kelly, though to Elstein’s knowledge nothing has been filed yet.

“We are disappointed that Tom didn’t get to have his day in court, so to speak,” Elstein said. “We are gratified that he no longer has to face the specter of an ethics blemish on his record, though the commission has not yet issued its final ruling.”

The commission can decide not to accept the withdrawal, Elstein said, if it thinks a withdrawal doesn’t protect the public’s interest.

Kelly’s comments on Henderson came during a Board of Education discussion of a report submitted by the auditor titled “School Facilities Snow Removal and Trumbull High School Building Construction Renovation.” The report was supposedly the basis of another ethics complaint filed by Henderson, which centered around AFB Construction Management and school officials. The complaint was dismissed.

Kelly responded to the withdrawal last week, saying that it seemed unnecessary it took the auditor three months to decide to withdraw the complaint.

“Everything I said at that Board of Education meeting was true and I was exercising my best judgment as an elected official,” Kelly said.

Kelly criticized the complaint against him, and the ethics complaint dismissed last year, as a waste of money. Last year, the Board of Education covered the legal fees of school officials involved in Henderson’s initial ethics complaint.

“This is a total waste of taxpayer dollars,” Kelly said. “This auditor has filed ethics complaints against six people that have gone nowhere.”