The city paid a former Ocean City Beach Patrol lifeguard $50,000 under a confidential agreement to settle an age-discrimination lawsuit and avoid a trial.

Michael Hamilton, 67, filed the suit in July 2010, alleging that the beach patrol used a “series of discriminatory and retaliatory acts” to drive him and other older lifeguards from the patrol.

The settlement agreement includes no admission of guilt from any of the defendants and was signed in August. It instructs all parties “to not disclose, either directly or indirectly, any information whatsoever relating to the existence or substance of the agreement … to any person or entity, including, but not limited to, members of the media …”

Such nondisclosure terms are common in lawsuit settlements, but New Jersey courts have consistently upheld the public’s right to know in cases that involve public entities. Ocean City taxpayers will ultimately pay for the lawsuit through increased premiums to the Atlantic County Municipal Joint Insurance Fund (JIF), which insures the city.

Ocean City Patch obtained the settlement agreement through an Open Public Records Act request.

The lawsuit settlement ends a long feud between Hamilton and the beach patrol administration that was as much about the reputation of the patrol as it was about age.

“I was going to retire anyway,” Hamilton said of what would have been his last summer on the beach in 2009. Instead, he failed the running portion of a requalification test he claims was redesigned to eliminate him from the patrol (a half-mile in 3:45).

Hamilton returned a few weeks later and succeeded in a competitive swimming, rowing and running tryout to make the Ocean City Beach Patrol as a 65-year-old rookie. He first made the patrol as a 16-year-old in 1960. Still muscular and a powerful swimmer, Hamilton (whose niece is Bethany Hamilton, the Hawaiian surfer who lost her arm to a shark and whose story is told in the movie Soul Surfer) prepared to start his second rookie year.

But his summer on the job did not last long.

HAMILTON’S LAWSUIT

Hamilton sued the City of Ocean City, Fire Chief Joseph Foglio, Deputy Fire Chief Charles Bowman and Ocean City Beach Patrol Director of Operations Thomas Mullineaux in July 2010.

The Ocean City Beach Patrol, which operated independently for more than 100 years, was moved under the leadership of the Ocean City Fire Department in 2001.

Hamilton’s first stint on the Ocean City Beach Patrol lasted from 1960 to 1968. An Atlantic City High School teacher and Somers Point resident, Hamilton worked more lucrative summer jobs until he returned to the beach patrol in 1988. By 2008, he was a senior guard.

The lawsuit alleges that the beach patrol tried to force older guards into retiring by reducing the number of days they worked. The suit says lifeguard pensions are calculated based on gross wages for the last year worked (or the average of the last three years worked, if it’s greater).

“Prior to 2008, Hamilton began work on Memorial Day and worked through the end of the summer, so that on average he worked between 85 and 90 days per year,” the lawsuit states.

But in 2008, Hamilton and two other administrative members of the beach patrol older than 60 were not given start dates until June 20.

“As a result, both his salary for the season and his pension benefit were reduced,” the suit states.

The suit further alleges that the beach patrol in 2009 did away with a tiered system of physical requalification tests that had different standards for older administrative guards. The new tests require all beach patrol personnel except the director of operations (who is exempt) to meet the same standards.

“The decision to change the tiered standards was a deliberate and calculated discriminatory act to force people of senior age in administrative positions off the beach patrol,” the suit claims.

Hamilton had filed ethics complaints against Foglio and Mullineaux in January 2009 that alleged, in part, that some guards were allowed back onto the patrol without meeting the requalification standards. The ethics complaints also alleged that Mullineaux and Foglio manipulated test results to give preferential treatment to family and friends.

The lawsuit alleges that the beach patrol’s actions were retaliation against Hamilton for filing the ethics complaints.

The suit goes on to describe Hamilton’s termination on July, 14, 2009, a few weeks after he succeeded in his rookie tryout.

“Through a series of carefully orchestrated delays, miscommunications and eventual staged scenarios … the plaintiff was ostracized from all rookie training and information sessions, was prevented from learning of actual start dates and assignments for him, and was thereafter terminated,” the lawsuit states.

But the lawsuit does not mention anything about a series of confrontations between Hamilton and Foglio in the days before he was fired on July 14.

POLICE COMPLAINTS

Police reports from summer 2009 describe the following incidents.

• On July 7: Police were called to the beach at 34^th Street, where Hamilton was present to watch requalification tests. “Due to his mere presence, several guards who were to participate were uncomfortable and intimidated and asked for the event to be rescheduled,” Sgt. Brian Hopely wrote in the report.
• On July 9: Foglio came out of the 58^th Street lifeguard headquarters to find Hamilton’s white Ford blocking Foglio’s city vehicle, according to a police report. When Foglio asked him to move, Hamilton yelled, “You don’t belong here! The men hate you! Joe FAGlio,” the report said. “He came up to the city vehicle and began pounding on the window while Foglio sat inside.” Hamilton followed Foglio to the 12^th Street headquarters, where he confronted him again, “standing only inches from him” and calling him a “gutless punk,” according to the report.
• On July 11: Police were called to the beach at 26^th Street, where Hamilton was reportedly in a beach chair observing Foglio’s daughter at work on the lifeguard stand -- she was the subject of one of his nepotism complaints. No action was taken, according to a police report.
• On July 13: Police were called back to 34^th Street, where Hamilton was observed timing a “zone swim,” a mandatory ocean swim for a group of lifeguards.
• Later on July 13: Hamilton filed a citizen complaint against Foglio for harassing comments in their July 9 confrontation.
• On Sept. 17: Police were dispatched to fire headquarters, where Foglio complained of two more incidents. On Sept. 15, Foglio was sitting in traffic on 34^th Street when Hamilton rode by on a bicycle and shouted, “Faglio!” “I asked Chief Foglio why Hamilton would use the name ‘Faglio,’ and not Foglio. He stated because Hamilton has referred to Chief Foglio as a faggot in the past.” On Sept. 16, Foglio was speaking with Mullineaux in front of fire headquarters when Hamilton pulled up and began taking photographs, according to the report.

Hamilton was convicted of harassment on Jan. 13, 2010 in Wildwood Municipal Court, and one of the conditions of the sentence was to have no contact with Foglio or his family. Foglio retired from the fire department on Oct. 1.

ETHICS COMPLAINTS

By summer 2009, the bad blood between Hamilton and Foglio had clearly reached a boiling point.

Hamilton's ethics complaints had included an allegation that Foglio used his influence to have his daughter hired by the beach patrol. While Hamilton offered documentation from the competitive tryout to support his case, the city's Ethics Board ultimately ruled that "the complaint has no reasonable factual basis" because the hiring criteria included a subjective interview. Hamilton appealed the ruling.

He also alleged that Mullineaux falsified documents that included the results of timed swimming requalification tests for returning lifeguards. Mullineaux allegedly directed an OCBP employee to add notations next to names that had no recorded swim time. The Ethics Board upheld this claim and recommended a minimum fine. Mullineaux is appealing the ruling.

Hamilton said he had become increasingly frustrated with what he perceived as a patrol where politics and favoritism triumphed over experience and performance. He said it began with the removal of Ocean City Beach Patrol Captain Oliver Muzslay (who settled an age-discrimination lawsuit against the city in 2008) when the patrol was moved under the jurisdiction of the fire department.

THE SETTLEMENT

In addition to requiring confidentiality, the lawsuit settlement forces Hamilton to withdraw all ethics complaints and appeals against Foglio and Mullineaux. It prevents him from voluntarily appearing at the appeal hearings filed by Mullineaux. And it also prohibits him from making disparaging remarks about the defendants or the Ethics Board.

The settlement emphasizes that the defendants deny "each and every allegation of wrongdoing." It allows Mullineaux to continue to pursue his appeal of the Ethics Board ruling, which is ongoing with the Local Finance Board.

The settlement provides a check made payable to Hamilton and his attorney, Alan Cohen, in the amount of $50,000.

City Council has been meeting in sessions closed to the public to discuss several other potential lawsuit settlements, incuding another age-discrimination lawsuit filed by Ocean City Beach Patrol Lieutenant Ed Yust, a suit filed by Mark McCulley of the Ocean City Fire Department and three suits alleging racial discrimination in the Sanitation Department.