The West Licking Joint Fire District board earlier this week heard almost nine hours of testimony against Chief David Fulmer before suspending the hearing until 6 p.m. Tuesday, July 8.
The hearing began at 6 p.m. June 17 and concluded at 2:45 a.m. June 18.
When the hearing was suspended, attorney Marc Fishel had finished interviewing the fourth witness testifying on behalf of the fire board about the six charges filed against Fulmer.
Attorney Paul Bittner was cross-examining the witness when the court reporter requested a break and said she could not continue.
Attorney Douglas Holthus, who also represented the fire board at the hearing, asked Fishel and the attorneys representing Fulmer – Richard “Chip” Comstock and Bittner – if they could continue with a recording of the proceedings that could be transcribed at a later date.
Bittner said the defense released its four witnesses when the attorneys were told the court reporter wanted to leave.
When told that three of the four were still on site, Holthus asked if the attorneys wanted to call back the other witness.
Those present decided instead to reschedule the hearing to July 8 when one of the board members returns from a two-week vacation that starts June 20.
The charges against Fulmer allege that he violated the provisions of the fire district’s policy on technology “through his deliberate misuse and reckless mismanagement of district-owned laptop computers and thereby committed misconduct in office, malfeasance, nonfeasance and gross neglect of duty.”
The charges include specifications of Fulmer allowing his family to use a district-issued laptop computer, of having inappropriate material downloaded to two district-issued laptop computers and of using at least one of the computers to view sexually explicit websites.
He also is being accused of using the laptops for private business ventures for profit, constituting misconduct and malfeasance.
A fifth charge, brought forth June 12, reiterates the charge of violating the fire district’s policy on technology by “using a district-owned cellphone to transmit an image of a naked woman’s torso and exposed breasts” to a potential employee.
The sixth charge alleges that by texting the image, Fulmer violated the fire district’s sexual harassment policy, which constitutes misconduct and malfeasance in office.
Fishel questioned Fulmer first.
Fulmer said he did not recognize many of the “sexually explicit” images or racially motivated jokes found by Profile Discovery of Columbus, a company hired by the board to retrieve information from two computers used by Fulmer when he was working as fire chief.
When asked if the two computers were protected by passwords, Fulmer said the Dell computer used in his office was and an Apple laptop that was expected to be used by other firefighters for training was not.
Fishel asked Fulmer if the Apple computer was restricted from use by his family when he took it home. Fulmer said he told his family they could use it to check email with his supervision but he admitted the computer was not in his supervision 100 percent of the time it was at his home.
Another of Fishel’s witnesses, Andrew Keck, who works with Profile Discovery, said the company retrieved the “sexually explicit” images, some of which could have been stills downloaded from videos and other information related to Fulmer’s consulting business.
Fishel said some of the information retrieved from the Apple computer included Facebook messages and emails from Fulmer’s family members’ accounts.
Fishel asked Fulmer if his family could testify on their computer usage and he said he did not talk to them about the specifics of this case and did not want to be accused of “coaching” them.
Fishel also quizzed Fulmer on the district’s technology policy, which restricts district-owned technology from personal use.
“Is it your responsibility if there is any use (of the district-owned computer) by your family that violates district policy?” Fishel asked.
Fulmer said it was his responsibility.
Fishel’s final witness was Douglas Duckett of the Duckett Law Firm of Cincinnati. Duckett conducted the investigation on Fulmer and said he has worked with local and national labor relations for more than 30 years.
“One thing public employees know is that if you use a publicly owned computer to view pornography or sexually explicit images, you’re going to be fired,” he said.
Duckett was being cross-examined by Bittner when the hearing was suspended.
Fishel also questioned Steve Little, who was hired as an outside human-resources consultant in January 2013 and promoted to fire administrator Feb. 13. On cross examination by Comstock, Little said he hired Duckett and Profile Discovery at the board’s discretion.
Fishel also questioned Terra Metzger, the fire district’s former human-resources technician, who worked at the district from 2010 to 2012 and reported to Fulmer.
Metzger said she did not tell anyone Fulmer had texted a nude photograph of a woman to her phone several days before she started her job in 2010 and did not come forward when previous charges were filed against Fulmer in 2012 because she did not want the information to go public.
She said she decided to come forward at this time because she felt “it was the right thing to do.”
Fulmer’s attorneys spent nearly an hour at the beginning of the hearing attempting to get the charges dropped, after also requesting the board consider holding the hearing in a closed executive session, which prevents the public from hearing testimony, and asking two of the six fire board members to recuse themselves
The board declined to have the hearing behind closed doors and declined to entertain a motion to remove board members Mark Van Buren of Harrison Township and Derek Myers of Jersey
Township based on potential bias against Fulmer.
Two other requests to have the charges dismissed were not brought forward in motions by the board. Those requests were made by Fulmer’s attorneys because legal communications between
Fishel and Holthus were not shared with the defense attorneys and because the hearing process allowed Fishel, who has served as the board’s legal adviser, to present the charges on behalf of the board, acting in a prosecutor’s role.
Fulmer was fired Nov. 8, 2012, but won an appeal when Judge Thomas Marcelain ruled April 18, 2013, in Licking County Common Pleas Court that the fire board fired Fulmer without proving him guilty of wrongdoing.
Marcelain ordered Fulmer must be reinstated but declined to require the fire district to pay Fulmer back pay, Little said.
The Fifth District Court of Appeals affirmed the ruling Jan. 9.
The district board voted Feb. 13 to reinstate Fulmer but immediately put him on administrative leave, pending another investigation.
Little said Fulmer earns $98,500 annually, which excludes benefits.
“He earns $3,800 every two weeks from Feb. 13,” Little said.
Little said the fire district’s insurance company has covered most of the district’s legal fees in the case.
“Insurance has covered a lot of it, most of it,” he said. “There’s not been much out-of-pocket expenses.”