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Fenichel Resigns as Ethics Board's Flip-Flop Remains a Mystery

Steven Fenichel cites the Tom Mullineaux case in resigning from the Ocean City Ethics Board.

Ocean City resident Steven Fenichel resigned from the city's volunteer Ethics Board on Tuesday after failing to convince the board to revisit its decision to clear Ocean City Beach Patrol Operations Director Tom Mullineaux of two ethics violations.

The Ethics Board issued findings in 2009 of two alleged violations by Mullineaux related to changing scores on lifeguard requalification tests — timed running and swimming tests required to determine if lifeguards are fit to return to duty. Mullineaux was fined $100 for each violation. He immediately appealed the findings.

In the process of preparing for the appeal, the Ethics Board and its lawyer reviewed the original findings and reversed its decision. The board voted Aug. 20 to "vacate and dismiss" its case against Mullineaux.

What exactly led to the reversal remains unclear to the public.

An amendment to the final report on the ethics complaint dated Aug. 20, 2012 (see attached PDF for complete text) says the board "concluded that procedural deficiencies existed in the investigation" and that "there exists no record evidence of a violation." The report offers no further detail on the "procedural deficiencies." The original findings were based, in part, on the testimony of eight anonymous witnesses, according to the original report.

The minutes from the Aug. 20 executive session when the decision was made are not yet available to the public as the appeal case will remain pending in Administrative Law Court until a settlement is finalized and recorded.

Administrative Law Judge Bruce M. Gorman has an hearing scheduled for Wednesday (Sept. 19) where the appeal case will be presumably wrapped up.

No court or settlement documents indicating a resolution to the appeal case exist yet, according to Office of Administrative Law spokesperson Randye Bloom. The Ethics Board has a policy not to speak with the media about pending cases, according to Chairman Joan Farrell.

Fenichel had been on vacation out of the country when the Aug. 20 decision was made in his absence. He returned to read news accounts of the Ethics Board's reversal (read Ocean City Patch coverage and the original Ethics Board report).

"I came to today’s Ethics Commission meeting to appeal to my fellow members to revisit their decision to drop the charges against Mr. Mullineaux and rescind the Amendment adopted on August 20th," Fenichel wrote in his resignation (see attached PDF for complete text). "I came to remind them of the high bar that is set for this Commission according to OC Ordinance No 2-78: 'Public officials and employees are agents of public purpose and hold office for the benefit of the public. … They are bound to observe in their official acts the highest standards of morality and to discharge faithfully the duties of their office ... recognizing that the public interest must be their primary concern.' "

"Sadly, my conclusion at the end of my tenure is that instead of the common good and public interest being the ultimate master, entrenched politics and connections rule the day," Fenichel wrote.

Ocean City resident Eric Sauder suggested in public comment at the start of Tuesday's meeting that it would be nice for the Ethics Board to provide more information on its decision.

"For the public, this is a big mystery," he said.

Before the board voted to go into executive session to further discuss the Mullineaux case, Farrell addressed the public and reminded them that the board is following procedure in keeping the pending legal matter confidential until the case is resolved.

"We're working very hard to do what we believe we have to do," she said.

vic September 19, 2012 at 12:27 PM
on the surface the ethics board sounds like an excellent and much need idea for ocean city, but this case proves that the ethics board under it's present setup is just a waste of time and money.
Fred Miller September 19, 2012 at 01:50 PM
I couldn't agree more!
Linda September 19, 2012 at 03:03 PM
From this reader's view 'Where there's smoke there's fire' is a cliche that is generally correct at some level. Even if Mr. Mullineaux was cleared of the two Ethics Board charges, for what reasons we do not know, it's the ETHICS BOARD for God's sake! Ethically one of two things should have happened: 1) The Board should replace Mr. Mullineaux; and/or 2) Mr. Mullineaux should resign so that he appears to understand the moral philosophy of an Ethics Board and so that the citizens of this town have faith that the board understands its purpose and includes board members who we can trust.
jennifer September 19, 2012 at 03:48 PM
I had an experience with 2 members of the Ethics Committee several years ago when I brought an Ethics violation against a political representative in OC. I showed that this person lied (too many details to go into) and the reaction of the 2 members of the Ethics Committee were "don't all politicians lie?" And "wouldn't you lie if you could?" These are direct quotes of a member of the Ethics Committee in response to my case. One of them even went into a rant about a national politician having nothging to do with my case. No matter how many ways I explained my case, they were unable to grasp the problem. I knew then that the Ethics Committee should be done away with as its members have a weird idea of what the word "ethics" means according to my experience. They are also residents of a small town and they allow their own political leanings to color their judgment - at least the 2 I met. Steve Fenichel is an ethical, intelligent person. Of course he would have to resign from this committee with some of these biased, not too bright members.
Sam Lavner September 19, 2012 at 04:23 PM
As has been pointed out many times over the last year on The Patch - The Board is only a good idea. It is not a good reality. And the primary reasons are 1) the selection process, training, oversight, etc are inadequate and 2) the governing state statute requires that members live in town (a fine requirement if the town is large and the result is that members have sufficient degrees of separation from complainants and defendants - OC is too small, and making matters worse, the Board has a horrendously irresponsible history of scant recusals - which stems from the first point). Eliminate this Board - it produces no demonstrable or evan plausible benefits and plenty of concrete costs - actual and potential.
Robert McKenna, MIKE September 19, 2012 at 04:27 PM
I believe in the concept of an Ethics Board. However, if in practice, it is just another political tool than it is a waste of time. By definition the Board should be beyond reproach as they should be models of ethical behavior.
Parker Miller September 20, 2012 at 12:05 PM
Whose time and what money? I think I heard that the Ethics Board ordinance passed by city council originally had a $5,000 per year budget and additional "expenses" as required. After 5 years of spending virtually no money, the Ethics Board requested $15,000 for legal expenses to defend against the appeal of Mullineaux only to be told that over the years, council had cut the board's funds to almost zero. We have incredibly good life guards in OC, but the life guards unit is sacred to many in OC, and any negative actions, and they do occur, are buried quickly.
Michael Hamilton September 20, 2012 at 06:07 PM
The Ethics Board should and will continue to be in place. Sorry that Dr. Fenichel resign, but I understand why. Steven will be hard to replace, because he has a pair. Fred on the other hand, lacks the same, is a flaming liberal, and couldn't pass a background test in journalism ethics (oh, I just forgot about the Ollie Muzslay 4 decades of OCBP). Information will eventually come out, including the real story behind placing the OCBP under the OCFD, an ugly scenario that Feddie,is very familiar with.The OCFD is a good group, with refreshing new leadership, but there is no need or reason for the OCBP to be under it.
Eric Sauder September 20, 2012 at 08:57 PM
Thanks to Dr. Fenichel for trying to make a difference. The problem is there are too few people who try to, most of those will never be appointed, and those that are appointed and try to change Ocean City for the better either give up, are assimilated, or are weeded out. There are two types of people who aspire to public office. Those who want to make a differenece and those who want a piece fo the action. We need more of the former and less of the latter. We may never know what it was really about. Eight people testified. There was a considerable amount of evidence introduced. After careful deliberation two findings were made, based on that testimony and the evidence. But all of a suddent there's a lack of evidence. And as Mac McCarthy pointed out, the fact that there might have been procedural irregularities isn't pertinent when a new case would have been opened in administrative court. What little we are being told doesn't seem to make much sense.. Perhaps the public should appoint and fund it's own citizen oversight group.
Eric Sauder September 20, 2012 at 09:22 PM
I had a similar experience. I gave what I thought was probable cause to launch an investigation, something it is uniquely equipped to do, but it would seem that instead of doing an investigation they simply dismissed my claim for a lack of evidence. Evidence comes from doing an investigation! If you don't look for the evidence you're not likely to find it. What evidence I could have provided they never asked to see. To be useful to this community the Ethics Commission has to USE the power invested in it.
Eric Sauder September 20, 2012 at 09:30 PM
Lieing is epidemic and apparently is not an ethical concern. I think when it's a public servant that does the lieing it should be, especially when benefit is derived from it.
Thatcher Baxter Hatcher September 21, 2012 at 12:02 PM
Ocean City has the same approach to ethics used by many small towns in Jersey, where mutual back-scratching is endemic. It's called "ethics schmethics".
Frank Worrell March 02, 2013 at 02:50 PM
The full minutes of the boards actions both public and closed sessions are now able to be viewed at city hall.If you ar e really interested in finding out how the board reached its conclusion in this matter fairness requires a complete read .
Ellen March 02, 2013 at 02:57 PM
Ethics Board - an organization of old boys whose only goal in life is to be big fish in a very little sea and really do no work at all.

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