Pataskala City Council on Sept. 3 voted 4-2 to hire outside legal counsel to initiate the third investigation of City Councilman Mike Fox in the past two years.
Vice President Merissa McKinstry made the motion to have Law Director Rufus Hurst initiate the investigation.
President Dan Hayes requested the motion be amended to hire outside counsel to consider new evidence that Fox did not comply with a directive from City Council related to the firing of former West Licking Joint Fire District chief David Fulmer.
The first motion and the amended motion were supported by Hayes, McKinstry, Bryan Lenzo and Pat Sagar, with Bernard Brush and Mike Compton opposed. Fox abstained from both votes.
Fox, who was Pataskala’s representative to the West Licking fire board through October 2012, has been accused twice of improper dealings related to Fulmer, who was fired last November.
In September 2012, a woman named Mary K. Wolfe alleged via email that in April, Fox made a racial comment about her and inappropriately asked John Rinard, president of the West Licking Fire Fighters Association, about Fulmer’s hiring while she and Rinard were at a restaurant.
Hurst investigated the complaint and, he said, found no evidence to support a recommindation that Fox be removed from the fire board.
According to City Council's minutes from Oct. 1, 2012, Hurst “noted there was not probable cause for removal (of Fox) from the (fire) board but that there was sufficient reason to doubt impartiality with the city’s representative participating in the (Fulmer) hearing for the (fire board).”
However, Hurst did caution Fox about the “appearance of impropriety” associated with his representation of Pataskala on the fire board. As a result, Brush made a motion that Fox recuse himself from the “disposition” of Fulmer at the hearing, according to the minutes from the meeting. The motion was seconded by Compton.
“Discussion was regarding the need to support Mr. Fox, the need to have representation on the (fire) board at the hearing, the need for a written report (from Hurst) and that if Mr. Fox was called as a witness, he would be required to testify,” according to the minutes.
City Council voted 4-2 in favor of the motion, with Lenzo and Sagar dissenting and Fox abstaining.
Fulmer, who won an appeal in Licking County Common Pleas Court in April that the fire board fired him without proving him guilty of wrongdoing, made the other complaint last November.
The fire board had dismissed Fulmer earlier that month, citing misconduct in office and malfeasance related to personal information about former employees from another department he kept on his work computer. Some of the information was considered sensitive and included Social Security numbers, according to the investigation proceedings.
Fulmer claimed Fox did not serve objectively in the investigation against him. He also alleged Fox did not completely recuse himself from the investigation proceedings.
Again, Hurst investigated and found no evidence for City Council to take action against Fox.
Now, Hurst said, he has found new evidence that might indicate Fox did participate in some of the investigation proceedings after being told to recuse himself.
He said he alerted Hayes and McKinstry via email Aug. 5.
Hayes said the three met Aug. 22. He said he emailed Hurst’s request to the rest of City Council that day and McKinstry presented the issue Sept. 3.
Hurst said he has reviewed court depositions related to statements from Fox, Etna Township’s fire board representative, Randy Foor, and Harrison Township’s representative, Mark Van Buren.
The depositions are part of the fire board’s appeal of Licking County Common Pleas Court Judge Thomas Marcelain’s ruling that the fire board did not have enough evidence to dismiss Fulmer.
The depositions have not been filed with the court at this time, and Hurst declined to release them, citing attorney-client privilege.
Hurst said the depositions he reviewed mention Fox participated in executive sessions related to Fulmer’s situation, which is what he wants City Council to review.
“The information that was presented to me after that (second investigation) was not of the recusal, it was sworn testimony that Fox participated in executive sessions relative to the Fulmer matter,” Hurst said. “That needs to be explored.”
Brush said Fox did what City Council members asked of him.
City Council on Oct. 1, 2012, requested Fox remove himself from the “disposition” of Fulmer, Brush said, reading from City Council’s minutes at the Sept. 3 meeting.
“Council requested he recuse himself from the disposition of Chief Fulmer at the hearing, which he did. He did not participate in the hearing,” Brush said.
Fox also defended himself Sept. 3, saying he recused himself from the fire board’s vote to dismiss Fulmer.
Fox said he sat in on fire board executive sessions related to personnel, as a member of the fire board’s personnel committee and as part of his regular duties while serving on the board.
“You’re spending taxpayers’ money once again on a witch hunt and I don’t think they’ll appreciate that,” Fox said.
Hayes said he could not estimate the potential costs of hiring outside legal counsel. He said no one on City Council enjoys investigating a peer.
He said the city’s charter requires the mayor, Steve Butcher, to review the results of any investigation. The mayor decides if charges should be filed.
If charges were to be filed, Hayes said, City Council would hear the evidence and decide if it needs to take action against Fox.