A $78,000 'Oops' Could Cost Ethics Board Its Life

The only breach ever identified in the six years of the volunteer Ocean City Ethics Board resulted in a $78,140 "nevermind."

Executive session minutes released this month (see attached PDF) reveal the reasons why the board vacated and dismissed the only finding of an ethical violation in its history: the board had promised anonymity to eight witnesses and when it came time for them to identify themselves as part of an appeal hearing, all but one witness "recant(ed) their original statements or refus(ed) to participate at all."

Ocean City taxpayers paid more than $55,000 in legal fees for a public employee, Ocean City Beach Patrol Operations Director Tom Mullineaux, to defend his name against the ethics findings, and it paid more than $23,000 for the Ethics Board to defend its decision before abandoning it altogether, according to invoices provided by the city.

The expenses set the stage for a discussion scheduled for the next City Council meeting on March 28: Will the city fund legal counsel for the board, and, if not, should the board continue to exist?

At issue are the potential costs and benefits of a five-member board comprised entirely of volunteer citizens. The board has broad powers that range from subpoenaing witnesses to levying fines. But it has no budget for legal counsel.

The Ethics Board was formed in 2006 under the administration of Mayor Sal Perillo as a way for citizens to file complaints about ethics violations among city officials and employees. The board is charged with investigating complaints and ruling on potential violations.

But the board had spent only $1,500 in the combined years before the Mullineaux appeal, according to former Chairman Stanley Pszczolkowski. The city had never funded any legal representation for the board before paying for an attorney in the Mullineaux case.

City Council will decide if the board is a greater asset or liability.

The Mullineaux Case

The case started with a former lifeguard with a long-standing grudge and ended with a beach patrol manager with a potentially damaged reputation. 

Former Ocean City Beach Patrol member Michael Hamilton submitted a massive complaint — "six or seven inches of paper" as Pszczolkowski described it — alleging 10 separate ethics violations by Mullineaux and now-retired Ocean City Fire Chief Joseph Foglio, who was in charge of the beach patrol.

Hamilton, 68, filed the complaint in January 2009. He was convicted of harassment in January 2010 in Wildwood Municipal Court in part for calling the fire chief "Joe FAGlio" in a series of confrontations. He accepted a $50,000 settlement in 2011 to drop a separate age-discrimination lawsuit and all claims against the city related to the beach patrol.

In an August 2009 final report (see attached PDF), the Ethics Board found no violations by Foglio and two against Mullineaux:

• "The investigating team found supporting testimony and documents that provide convincing evidence that Chief Mullineaux did use his influence and his position as Chief of Operations in the waiving of mandatory testing of certain returning lifeguards, including excusing himself from mandatory testing as required by the OCBP's own policies and procedures."
• "The investigating team found supporting testimony and documents that provide convincing evidence that Chief Mullineaux did direct an OCBP employee to change official swim test documents by adding a check mark or the notation 'OK' next to the names of those not having swim test times recorded, attempting to indicate the person did take the mandatory swim test and passed."

The beach patrol requires physical requalification tests for returning lifeguards, including a 200-meter swim and a half-mile run.

Hamilton's original complaint includes documentation that shows 'OK' notations next to the names of some veteran lifeguards and some of the beach patrol's champion swimmers, runners and rowers. Hamilton's complaint focused on a rower he claims is not a fast swimmer.

The Ethics Board report noted that "the investigating team found that public safety was never compromised in any way." It levied two $100 fines against Mullineaux.

Mullineaux immediately appealed the decision.

The Appeal

As Mullineaux's appeal moved toward an Office of Administrative Law hearing, City Council approved funding for legal representation of the board in December 2011. 

But in an August 2012 executive session closed to the public, Bridgeton attorney Beth White advised the Ethics Board that they had little case.

"Ms. White then stated that she had met with Mr. Mullineaux's counsel and that it no longer looked favorable for the Board because of the lack of credible witnesses, with most witnesses rescinding their testimony for one reason or another," according to the executive session minutes released this month.

"Opposing counsel maintained that the Ethics Board was flawed in its due process when a full hearing for Mr. Mullineaux was not held by the Ethics Board when they determined a violation occurred," the minutes state. (The Sixth Amendment of the U.S. Constitution guarantees the accused the right to be "confronted with the witnesses against him" ... at least in criminal cases.)

"Ms. White stated that the board cannot adequately defend its findings due to the lack of recorded testimony and only one witness who was willing to testify to the same information originally provided to the Board."

In its final report of August 2009, the Ethics Board said its findings were based on written and telephone interviews from "eight (8) OCBP current employees and retirees who requested and were given the assurance of anonymity due to the stated fear of reprisal."

In the August 2012 executive session, "(Ethics Board Chairwoman Joan Farrell) said that the Board will have to review the Ethics Ordinance in detail in comparison with the board's Rules & Procedures and make changes as necessary. It might also be necessary to propose a revision to the ordinance. The board would also have to determine what kind of legal counsel is needed for Ocean City to have an Ethics Board, and present this to City Council and the administration. (Ethics Board member Frank Worrell) said there is still a lingering question if local ethics boards will be eliminated and moved to the state level."

The board ultimately voted to vacate and dismiss all findings against Mullineaux. At the time, the board announced only that it had "concluded that procedural deficiencies existed in the investigation" and that "there exists no record evidence of a violation." 

Because the Ethics Board decision made the hearing moot, the Office of Administrative Law dismissed the appeal in a decision recorded Nov. 15, 2012.

The Future of the Board

Noting that the Ethics Board has no funding in the current draft of the municipal budget for the next fiscal year, City Council President Michael Allegretto at a March 14 meeting scheduled a discussion of the future of the Ethics Board.

"If there's not a will to put the funding there, I don't think they can function the way they're supposed to," Allegretto said. "It's something we need to start discussing."

City Council member Keith Hartzell asked the city administration for a report on costs and findings related to the board.

The board has dismissed ethics complaints against such public figures as former City Solicitor Gerald Corcoran and Councilman Jody Alessandrine. With the new dismissal of the findings against Mullineaux, the board has found no ethics violations in its history.

City Council considered abolishing the board in December 2011 when first asked to pay for the board's legal expenses, and it passed the first reading of an ordinance to do so in January 2012. But amid strong public opposition, the board reversed its decision in March 2012.