Several lawsuits filed against the City of Ocean City are moving toward the trial stage this summer, and City Council has been meeting in private to discuss the pending litigation, possibly considering paying to settle the suits out of court.

At its May 25 meeting, City Council voted to authorize a closed executive session to discuss lawsuits against the city, including (according to the council agenda): Sussman Enterprises, Inc. vs. City of Ocean City; Edwin Yust vs. City of Ocean City (two cases pending); Beck vs. City of Ocean City, Elliott vs. City of Ocean City and Karpuk vs. City of Ocean City; Nicholas Foglio vs. City of Ocean City; Michael Hamilton vs. City of Ocean City, Joseph Foglio, Charles Bowman and Thomas Mullineaux; and Mark McCulley vs. City of Ocean City.

Council also had met two weeks earlier in executive session to discuss pending litigation.

Ocean City Patch was able to obtain copies of most of the lawsuits specified by council and summaries follow.

Note to readers: Lawsuits contain allegations that have yet to be heard in court. They tell only the plaintiff's side of a story. Defendants have been instructed by the city's lawyers not to speak publicly about the cases. The city's lawyers have also chosen not to speak about the details of the cases.

Mark McCulley vs. City of Ocean City 

In a lawsuit filed in January 2010, a deputy fire chief claims he was suspended without pay and pressured into resigning by the fire chief.

As the paymaster of the department, Mark McCulley reimbursed firefighters, including himself, for the purchase of goods by paying them overtime for hours they did not work, according to the lawsuit.

McCulley was suspended and investigated for misappropriating funds, the suit says.

McCulley started work with the Ocean City Fire Department in June 1987, rose through the ranks and earned an unblemished record until an incident in June 2008, the suit claims.

In March 2007, McCulley was the platoon leader and ranking officer responding to a multiple-alarm fire at a property in Ocean City when Fire Chief Joseph Foglio attempted to assume control of the firefighting effort "in midstream," the suit says.

McCulley claims in the suit that he was duty-bound by firefighting protocol to provide continuous command during the fire and that he rebuked the chief's attempt to take over.

"The conscientious action by the plaintiff enraged the fire chief and served as the springboard for a continuous reign of harassment by the chief up to the present day," the lawsuit claims.

McCulley says in the suit that he often paid out of his own pocket for equipment and supplies the department needed for training drills and other operations. He says that it was common practice within the fire department -- "a de facto policy" -- to work around annual "budget freezes" by reimbursing firefighters under the labels of "overtime" and "FLSA pay" (Fair Labor Standards Act).

Testimony in separate transcripts from administrative law hearings related to McCulley's job status appears to confirm that payment irregularities extended beyond just McCulley.

The suit says overtime payments to McCulley were reported to the chief on standard reporting forms that required the chief's review and initials.

McCulley says in the suit that after the incident at the fire scene, Foglio started "a microscopic review" of his movements and actions. The suit says the Cape May County Prosecutor's Office looked into the case and refused to go forward with any criminal investigation or charges.

McCulley was suspended without pay from December 2008 to March 2009 and ordered to reimburse the city $7,089.80, according to the suit. He served another three-month suspension in the summer of 2009 for chronic absenteeism. After complying with a city order to secure Employee Assistance Program counseling for anger management and other "humiliations," McCulley resigned.

The lawsuit seeks compensatory damages, punitive damages, reinstatement of all pay (McCulley would have received "but for the illegal conduct of the defendant"), attorney's fees, reinstatement of all benefits and seniority rights and civil fines.

Michael Hamilton vs. City of Ocean City, Joseph Foglio, Charles Bowman and Thomas Mullineaux

In a lawsuit filed in July 2010, a then 66-year-old lifeguard claims the Ocean City Beach Patrol discriminated against him by eliminating a "tiered" system of physical requalification tests that allowed "administrative guards" to be exempt from timed tests in swimming and running.

"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 because of their age," a lawsuit filed on behalf of Michael Hamilton says.

Hamilton was a senior guard (a position that typically requires lifeguarding on the beach) and failed to complete a half-mile run in 3 minutes, 45 seconds in the 2009 requalification test.

In the lawsuit, Hamilton claims the changed standards were retaliation for ethics complaints he filed in January 2009 against Fire Chief Joseph Foglio and Beach Patrol Chief of Operations Thomas Mullineaux (which alleged in part that timed requalification tests were too lax and some guards were allowed back onto the patrol without taking the test).

Hamilton claims in the suit that the alleged discrimination started in 2008 when he was not called to start the season until June 20, while younger members of the patrol with less seniority started on Memorial Day.

He said that decision affected the calculation for his Ocean City Beach Patrol pension plan. Hamilton first made the patrol in 1960 and has worked 50 summers in various stints.

A month after he failed in the requalification test in 2009, Hamilton competed in the annual rookie test and was rehired. But he was fired for failure to appear at work -- a product, Hamilton claims in the suit, of a "series of carefully orchestrated delays, miscommunications and eventual staged scenarios."

Police reports describe a number of alleged confrontations between Hamilton and Foglio that summer.

One count of the suit for discrimination seeks compensatory damages, restoration of full pension benefits affected by the shortened 2008 season, attorney's fees and punitive damages. A second count under the Conscientious Employee Protection Act sees compensatory damages, attorney's fees and costs.

Edwin Yust vs. City of Ocean City, Joseph Foglio, Charles Bowman and Thomas Mullineaux

In a lawsuit filed in May 2010, a 68-year-old lifeguard claims the Ocean City Beach Patrol discriminated against him because of his age.

Like Michael Hamilton, Edwin Yust claims a late start date in the 2008 season affected his pension calculation. He also claims in the suit that he was passed over for a senior lieutenant's position despite his 51 years experience on the patrol -- 37 of them as an administrator with the rank of lieutenant or higher.

He says he was passed over in favor of candidates 36 and 39 years old with less administrative experience.

He filed an age discrimination complaint with the Equal Employment Opportunity Commission in September 2008, according to the lawsuit.

Like Hamilton, Yust claims that the city retaliated by eliminating the "tiered" system of physical requalification tests that allowed "administrative guards" to be exempt from timed tests in swimming and running.

Yust failed to pass the requalification test in 2009 and was not rehired.

His suit seeks compensatory damages, punitive damages and attorney's fees and costs.

Beck vs. City of Ocean City
Elliott vs. City of Ocean City
Karpuk vs. City of Ocean City

In a lawsuit filed in November 2009, a seasonal laborer in the Sanitation Department claims a supervisor discriminated against him because of his race.

Samuel D. Beck, of Atlantic City, who describes himself in the suit as dark-skinned and of Hispanic origin, claims that supervisor Keith Washington told him, "Your skin is a shade too dark for me. I don't like black people and you will have no advantage being black," according to the lawsuit.

Beck claims in the suit that he was subject to anti-black comments by Washington on virtually every day of his employment.

He claims that on more than one occasion minority workers were called "dancing monkeys" by Washington.

The suit says Beck filed three separate complaints with the Ocean City Department of Human Resources but that no action was ever taken against Washington.

The suit claims white workers received raises and better duties than Beck did. It suggests Ocean City condoned a hostile work environment.

The suit seeks compensatory damages, punitive damages, attorney's fees and costs, and interest.

***

In a suit filed in August 2010, another seasonal sanitation worker makes similar allegations against the City of Ocean City and Sanitation Department supervisor Keith Washington.

Jermaine Elliott was hired in July 2008 and was told by Washington immediately after his hire, "I don't like black guys. There's nothing anybody can do to make me like them ... You're black -- to me, you're ignorant," according to the lawsuit.

In the suit, Elliott describes himself as dark-skinned and of African-American origin.

The suit seeks similar damages and reimbursement of costs.

***

In a suit filed in October 2009, a third sanitation worker makes racial discrimination claims against Washington and Ocean City.

Andrew Karpuk, a dark-skinned Hispanic from Ocean City, makes allegations similar to Beck's and Elliott's and seeks similar compensation.

Sussman Enterprises, Inc. vs. City of Ocean City

In a July 2010 lawsuit, Sussman Enterprises, Inc., of Brigantine, seeks damages of $134,250, interest, attorney's fees and costs.

The suit relates to a contract dispute over work on the North Street Playground and the 34th Street Playground.

The suit claims that design errors, unforeseen site conditions and other factors beyond its control caused delays and extra costs -- and that the city refused to extend the schedule or pay extra compensation.

The suit suggests a "breach of contract" cost the company more than $100,000.

What the lawsuits mean

When the lengthy "discovery" process of depositions and interviews nears an end, government bodies often weigh the risk of going to trial and potentially losing a lawsuit. They sometimes vote to settle the case out of court, paying what they consider a smaller sum than they might risk losing in a trial.

Ocean City is covered in these types of lawsuits by the Atlantic County Joint Insurance Fund, so the city will not pay dollar for dollar what it loses in a lawsuit or settlement. Many factors play into determining insurance premiums, but if the JIF pays out more in lawsuits or settlements than the city pays in premiums, then Ocean City's premiums will increase accordingly.

If the city settles or loses a lawsuit, the taxpayers ultimately pay. 

Check back with Ocean City Patch this summer for updates on potential settlements or trials and for a further look at the allegations included in these lawsuits.