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New year, old battles for Fairmont City Council

FAIRMONT — Like the monster that refuses to die, the division on the Fairmont City Council reared its head again in the governing body’s first meeting of the new year Monday.

For the past nine months, the council has produced numerous 3-2 decisions, with Tom Hawkins, Randy Lubenow and Ruth Cyphers on one side, and Bruce Peters and Wayne Hasek on the other. Monday’s meeting continued that theme with accusations of a mishandled investigation of city employees; revelation of an open meeting law violation by Hawkins and Cyphers; and a grudge against the local newspaper.

The council resurrected discussion about the investigation to determine whether any city employees knew of the former City Attorney’s cases that were expired due to the statute of limitations. The council had hired investigator Michelle Soldo to probe the matter, and she concluded that none of the city staff knew or should have known about the expiring cases, releasing her findings with “all relevant information” on Nov. 14. She later advised against interview transcripts due to additional cost, relevance and the witnesses’ concerns of retaliation.

But Hawkins wanted transcripts of Soldo’s conversations with the four city staff members she interviewed. Council members hesitated at the cost of spending an additional $1,000 for the transcripts, in addition to the $10,500 already shelled out for the original investigation and legal costs, so the possibility was raised of a closed session telephone conference where Soldo could verbally relate the interview information.

When Erik Ordahl, attorney with Flaherty & Hood, the city’s interim civil counsel, informed the council that a closed session for a phone conversation was not a legal option, Lubenow expressed his frustration with not having a full report.

“I thought when we asked for an investigation that we would all get the results of the full investigation,” he said.

“No one has gotten ‘full’ reports. My expectation was that she (Soldo) was going to summarize it,” Mayor Debbie Foster said. “I didn’t need a detailed response. She’s the expert, not me.”

Foster and Hawkins were selected by the council as their representatives in the Soldo investigation and held several hours-long phone conferences with Soldo and Brandon Fitzsimmons, a labor attorney with Flaherty & Hood, about the results of the inquiry.

Hawkins held a different opinion, saying he expected every council member should get all the information that he and Foster received.

Peters asked if they had transcripts of the conversations, and Hawkins and Foster both replied no.

“So then what do you know that we don’t?” Peters asked.

Foster said Soldo did not go into detail and that Fitzsimmons summarized each conference call and emailed all council members the information.

Lubenow questioned the validity of the witnesses being concerned about retaliation.

“Why, if they’re doing their job and they knew nothing about the City Attorney’s job performance, why would they be worried?” he said. “Obviously, the city staff knew something that they don’t want the council to know. That’s the only thing I can think of.”

“She (Soldo) believes, which I don’t agree with her, that employees could be retaliated against, but I don’t expect anybody on this council would ever retaliate against somebody,” Hawkins said.

Peters suggested that staff might have made derogatory comments about council members during the interview.

“It wouldn’t surprise me a bit because I think some of the city employees around here don’t think very highly of all of us on the City Council, and I don’t blame them for not wanting that to be public. That was confidential when they were giving these interviews,” he said.

Hawkins said Peters’ statement was not true, that he didn’t remember hearing anything in Soldo’s reports about negative comments about the council.

“But that doesn’t mean it didn’t happen,” Foster said.

She then reminded the council that Soldo felt she had enough information and was ready to close the investigation after talking to only two of the four people the council wanted interviewed. After a conference call between Hawkins, Foster, Fitzsimmons and Soldo on Oct. 16, all agreed to ending the investigation, and Fitzsimmons sent a summary email to all council members about the decision.

The following day, Foster got a call from Fitzsimmons saying Hawkins had changed his mind and wanted the investigation to continue so another conference call was held that day.

“It was at that time that the open meeting law was violated,” Foster said. “Brandon Fitzsimmons was on that call with Councilor Hawkins and I because apparently Councilor Cyphers and Councilor Hawkins had a phone call, and Councilor Hawkins said that Councilor Cyphers wanted to know why other people weren’t going to be investigated.”

When Hawkins questioned how that was a violation of the open meeting law, Foster said that Cyphers should have contacted Fitzsimmons, not Hawkins, if she had questions about the investigation.

Hawkins reiterated his assertion that all council members should be privy to the same information that he and Foster have.

“I just thought there was valuable information there,” he said.

“So you’re saying that her determination that there was no guilt or malfeasance, you don’t buy it. Is that what you’re saying?” Peters asked.

Hawkins admitted he agreed with the determination but argued that the investigation was a very narrow scope, dealing only with staff’s knowledge of the expiring cases.

“When you frame it that nothing was found, that’s not true,” Hawkins said. “I believe a lot of things were found. I know of people that told me that they believe that people knew so I wanted more people questioned about did they know. I was told specifically that yes, there were people that did know.”

“It’s caused division on the council,” Cyphers said. “It kind of puts a couple people on a different playing field within the council. I just feel, I don’t know, what’s the harm? We paid her to do the job.”

“She made it pretty clear that she had done everything that she was required to do,” Foster said.

“I don’t know why we’ve got to keep spending more of the taxpayer’s money,” Hasek said.

“I don’t know why you want to keep digging,” Peters said.

“I don’t feel this investigation was handled properly at all,” Lubenow said. “You want to build a ‘Team Fairmont.’ Well, right now, two team members know stuff that the rest of us don’t know so go ahead. I don’t really care.”

Lubenow made a motion asking for information that Hawkins and Foster have, and Cyphers seconded it, adding that the motion should probably ask for the investigator’s transcripts. The motion passed by a 3-2 vote with Peters and Hasek dissenting.

The same split vote resulted in the Photo Press being selected as the official publication for the city’s legal notices, a change after decades of the Sentinel being the city’s official newspaper.

Lubenow, who tried for the switch a year ago, was successful in his second attempt, in spite of the Sentinel having a more timely publication time and less expensive advertising rate for legal notices.

“I have a vision for 2020 that we’re going to make some positive changes in Fairmont, and over the course of the last eight, nine months, the Sentinel has resorted to personally attacking council members they don’t agree with, myself personally,” Lubenow said. “You can question my decisions any time you want. Though when you personally attack character and people’s families and people’s businesses, I just feel that’s wrong.”

“Wow. The Sentinel attacked your family and your business?” Peters asked.

“Not my business, but Ruth’s business, Tom’s business,” Lubenow said.

“I must have missed that article,” Hasek said.

“I missed it too. So in other words, it’s retaliatory,” Peters said.

“I don’t feel they (Sentinel) fit the needs and the wants of the citizens of Fairmont, and I’ve heard that from numerous constituents,” Lubenow said.

In checking on the cost of legal publications, Foster found the Photo Press charging $8.95 per column inch and the Sentinel charging $8.25, with the second publication of the same ad at $5.25.

She also expressed concern about the timeliness of publication in a weekly shopper versus a daily newspaper. With the Photo Press having a deadline of 10 a.m. Monday for inclusion in Wednesday’s publication, any public hearings set at council meetings could not be published until the following week, and there would still be the mandatory 10-day period after publication before a hearing could be held.

After the 3-2 vote in favor of the Photo Press, Hasek commented the move was done because of “grudges, hyperbole.”

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