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Fairmont city staff cleared by investigator

FAIRMONT — The facts surrounding some criminal cases not prosecuted by Fairmont’s former City Attorney and an investigation to identify city staff who allegedly knew about those cases were made public at the Fairmont City Council meeting Monday.

Releasing the information could put a halt to rumors about the number and type of cases that former City Attorney Elizabeth Bloomquist allowed to expire under the statute of limitations, and the city staff who supposedly had knowledge of those cases.

Mayor Debbie Foster asked for and received permission from the council to waive attorney/client privilege and read a letter from County Attorney Terry Viesselman, who assumed the city’s prosecutorial duties, and Fairmont Police Chief Mike Hunter. The letter, dated Oct. 24, outlined the initial review of cases from Bloomquist’s office after her separation from the city on May 15 and an internal review of physical files, electronic files and emails between Bloomquist and law enforcement officers.

“At the end of the process, the (County Attorney’s) office received a total of 136 reports for review that represented 153 prosecution decisions,” the letter stated. “Of those, 50 reports representing 56 prosecution decisions were determined to be barred by the statute of limitations by the time the office received the reports for review.

“Of those 56 decisions, the office determined that 14 were chargeable, based upon the facts in the report, and at least 12 needed further investigation by law enforcement before a prosecution could effectively be made. Of the 14 chargeable, four were domestic assault cases. Of the 12 that needed further investigation, five were domestic assault cases.”

Foster also read a summary of the City Attorney’s role and responsibility to the council and taxpayers that was compiled by Brandon Fitzsimmons, an attorney with Flaherty & Hood, Fairmont’s interim civil legal counsel.

“City prosecutors are generally given broad discretion in deciding whom to prosecute in violation of criminal laws and enjoy absolute immunity from civil suit in their review of and decision to charge a violation of the law,” the summary said.

Prosecutors can make independent decisions for the public good and choose to prosecute, ask for more investigation or decline to prosecute any case.

The summary also explained that the City Attorney’s role includes pursuing criminal charges against people who violate, within city limits, all state laws classified as petty misdemeanors, misdemeanors and some gross misdemeanors, as well as violations of the city ordinance, charter rule and regulations.

Foster thanked Viesselman and Hunter for their time, diligence and efforts in reviewing the cases.

“I wanted the council members, city staff and community members to know the facts from the professionals regarding the actual number of cases,” she said, assuring the community that “everything humanly possible is being done so this will not happen again.”

She also offered an apology.

“I am very sorry to everyone that was involved in the 12 cases that needed further investigation before a prosecution decision was made. Each of the 12 cases did not receive their due process,” she said. “I am truly sorry to everyone that was directly involved in the 14 chargeable cases that did not receive due process due to the statute of limitations.

“There is nothing that can be done to erase or change the past. There are changes already taking place to improve the now and the future.”

Foster also read a report from Michelle Soldo of Soldo Consulting who conducted an investigation into city staff’s awareness of the criminal cases that had expired under the statute of limitations. The council voted to hire Soldo on Sept. 30 at a rate of $155 per hour to determine who, if anyone, had knowledge of the expired cases from January 2012 through May 2019.

“It was not established that city officials and/or city staff outside of the city prosecutor knew or should have known that the city did not prosecute or dismiss criminal cases prior to the applicable statute of limitations,” the report stated.

“That was her final decision,” Foster said. “As far as action from the City Council, at this time, there is nothing that is required.”

Councilman Tom Hawkins, who had lobbied intensely for the investigation, requested that Soldo submit the transcriptions from the conversations with the four people she interviewed. The council had designated Hawkins and Foster to facilitate the investigation with Soldo.

“There was a lot of other information that I believe was very valuable, that I felt important that all the council members have,” Hawkins said. “I want to make sure that you know what we know. There was a lot of information that was gained in this investigation even though it didn’t determine what the intent was.”

Councilman Bruce Peters asked if the information would be made public, but Erik Ordahl of Flaherty & Hood said any information would remain private under attorney/client privilege.

Peters also questioned the added cost of having Soldo transcribe the conversations, but Hawkins thought there would not be any additional charge. He said Soldo must have already written up the interviews because she had read from them during her conversations with him and Foster.

“I find that hard to believe that she would do it for free,” Peters said. “I don’t know how much I want to spend to read a transcript. We’ve got the summary. Apparently there was no nothing.”

“Based on the people they interviewed, there wasn’t anything found, but like I said, there was a lot of information that I thought was very interesting that I thought the rest of the council should know,” Hawkins said.

Foster said she would check with Soldo about the cost and report to the council at its next meeting on Dec. 9.

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