Potential open-meetings violation
Hurst: City can investigate fire board's actions
Pataskala Law Director Rufus Hurst said last week that the West Licking Joint Fire District board in May improperly placed Fire Chief David Fulmer on administrative leave without a public vote, and he believes Pataskala City Council members have standing to investigate the matter.
Fulmer also is under investigation by the fire board for "policy disagreement" with the board.
The incident began when board members, citing legal advice, reportedly came to consensus in executive session May 23 to place Fulmer on leave. Fulmer, who was placed on leave May 29, was later informed of the decision. There was no public vote.
West Licking Joint Fire District board member Mike Fox, who represents Pataskala and is a Pataskala City Council member, said the fire board's legal counsel, Marc Fishel of Columbus-based Downes Fishel Hass Kim, advised members not to discuss the reasons Fulmer was placed on leave other than to say it was not a disciplinary action for any sort of malicious intent but rather for policy disagreement between Fulmer and the board.
Fire board members then met in an emergency session June 4 and voted 5-0 to place Fulmer on administrative leave. Fire board member Doug Joseph, who represented Reynoldsburg, resigned in protest the same day.
Fox said the June session was called to take a public vote to quell concerns, but he said the board's legal counsel reiterated to him that the June 4 vote was unnecessary because the board had the authority to place Fulmer on administrative leave without a public vote and it handled the situation legally from the start.
Meanwhile, Pataskala City Council on June 4 -- before the fire board's emergency meeting -- voted 6-0, with Fox abstaining, to have Hurst determine whether the city had the authority to investigate formally whether the fire board violated open-meetings laws.
Council President Dan Hayes said he was concerned because, no matter the reasons for suspending Fulmer, "they have to conduct the process to place him on leave and/or remove him properly." He also indicated he would support an investigation if Hurst determined City Council had the authority to launch an inquiry.
Hurst's opinion on the matter stated: "As an initial matter, it appears that the initial conduct of the board and/or whoever placed the chief on leave was improper.
"First, under 505.371 of the (Ohio) Revised Code, it is only the board that could have so acted. The board is the appointing authority, there was clearly action taken and there is nothing that allows the board under statute or their procedures that would allow any other than the board to do what was done. As such, official action would have been required. I understand that the position of the board as to the initial executive session that immediately preceded the administrative leave resulted in no such action. It would appear that either the board acted in violation of the open-meetings laws or one or more board members exceeded their respective authority."
Hurst's opinion continued: "Next, it appears at that the attempt to correct the initial step of administrative leave or the lack of 'official action' following the initial executive session may also have been inadequate in that I find no evidence that there was compliance with Section F of the open-meeting requirements. This apparently was called as an emergency meeting, but there is no indication of what the emergency was or whether the required notifications went out. They probably would have needed to do this as a special meeting and failed to do those notifications. This would be a second violation of the same laws.
"I was requested to review whether the city would have standing to pursue this matter should that be determined to be desirable. Any person may bring an action for relief for a violation of the open-meetings laws. This would include the city. One could further argue that the city further has standing under the terms of the documents that created the fire district as the city is a board appointing member of the district with that authority granted to such appointing members pursuant to the (Ohio) Revised Code."
Fox said as of June 27, the fire board had not discussed Hurst's opinion.
"However, the board has every confidence in our legal counsel," he said.
Pataskala City Council member Bryan Lenzo said he plans to give the issue more consideration before determining a next step.
"Clearly, there are some serious questions about the process followed," he said, adding council would have a keen interest in the situation as Pataskala is the largest user of the fire district's services.