Update: The following story originally posted Thursday includes additional information on the Ethics Board reviewing its original findings and finding "no violation."
With an Administrative Law appeal hearing scheduled to start on Friday, the Ocean City Ethics Board announced on Thursday that it will give up on an ethics case against Ocean City Beach Patrol Operations Director Tom Mullineaux.
The board voted Aug. 20 to "vacate and dismiss" its findings against Mullineaux, according to news release issued Thursday by the city. (See attached PDF for a copy of the resolution.)
The Ethics Board issued findings in 2009 of two alleged ethics violations by Mullineaux related to changing scores on lifeguard requalification tests. Mullineaux was fined $100 for each violation. He immediately appealed the findings.
The Ethics Board investigation was the result of an extensive complaint filed by former Ocean City Beach Patrol lifeguard Mike Hamilton, who accepted in August 2011. As part of the settlement agreement, Hamilton was required to withdraw all complaints the city.
"After pre-trial discovery started, the Ethics Board accepted the withdrawal of the complaint filed by Mr. Hamilton, vacated its prior findings against Operations Chief Mullineaux, and amended its final report to reflect the vacation of any finding of a violation by Operations Chief Mullineaux," the city said in its news release.
In a Sept. 5 letter from Ocean City Ethics Board Chairperson Joan Farrell to Mayor Jay Gillian (see attached PDF), Farrell says a review of the original findings in preparation for the appeal revealed that "no violation of the City of Ocean City Code of Ethics Section 2-15.5.B exists."
Mullineaux could not be reached for comment.
Farrell said Thursday that it's board policy not to speak with the media. She is unable to explain what changed in the Ethics Boards two reviews of the complaint. An amended final written report on the case has not been filed yet.
"It is what it is," Hamilton said Thursday upon learning of the dismissal. "What transpired transpired. I think the Ethics Board was acting on good information to do what they did."
Hamilton had filed ethics complaints against former Ocean City Fire Chief Joseph 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 complaint included hundreds of pages of documentation and nine separate accusations of nepotism and cronyism.
Hamilton's complaints 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.
The only two parts of the complaint originally upheld by the Ethics Board were that Mullineaux waived physical requalification tests for certain returning Ocean City Beach Patrol employees in 2007, including himself, and that he falsified documents that included the results of timed swimming requalification tests. Mullineaux allegedly directed an OCBP employee to add notations next to names that had no recorded swim time.
The Ethics Board investigation was based largely on interviews with eight then current and former Ocean City Beach Patrol employees, who were allowed to remain anonymous, according to the final report of the Ethics Board dated Sept. 15, 2009. (See attached PDF for complete text of the final report and findings.)
The Ethics Board upheld the two claims and recommended minimum fines of $100 apiece. Mullineaux appealed the ruling. And with the Ethics Board's dismissal of the findings and proclamation that there never was an ethics violation, Mullineaux's name is now cleared.
Administrative Law Judge Bruce M. Gorman said the appeal hearing scheduled for Friday was adjourned because the parties told him that they were trying to negotiate a settlement, according to Office of Administrative Law spokesperson Randye Bloom.
Gorman indicated he does not have any documents, nor were any possible terms discussed with him, Bloom said. The case will be pending in Administrative Law Court until any settlement is finalized and recorded.
It remains unclear if Mullineaux, 65, will retain the seasonal job next year or retire.
The prospect of the appeal and the potential cost of legal representation to defend the city's decision almost led to the disbanding of the Ethics Board.
City Council voted 6-1 in January 2012 on the first reading of an ordinance that would have eliminated the Ethics Board. Council members cited the immediate legal bill for the Mullineaux appeal and the prospect of having no way to determine future legal expenses. Council argued that the board is not a necessity. A state board serves the same function.
But following public outcry and an appeal from Mayor Jay Gillian, three council members changed their votes. The ordinance was defeated, 4-3, on a second reading in March.
Beth White, of Chance & McCann in Bridgeton, represents the Ethics Board in the case, but her office said Thursday that she will have no comment.