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

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.