Wednesday, December 12, 2012

Oh, what a tangled web...judge under investigation?

According to court documents filed on behalf of Dare County Resident Superior Court Judge Jerry Tillett, the Judicial Standards Commission may be investigating his actions related to the Kill Devil Hills Police Department.

The investigation was revealed in a petition filed on Nov. 20 with the North Carolina Court of Appeals by Raleigh attorney Norm Shearin of the firm Vandeveter Black on behalf of Tillett.

The judge sought a hearing before the court in reference to its opinion handed down on Oct. 16 that vacated an order issued by Superior Court Judge Milton F. Fitch, 7B Judicial District. Although not the focus of the appeal, the court also vacated an earlier order issued by Tillett.

The request for a hearing was denied by the court on Dec. 4. The opinion is linked here.

Fitch’s order issued in January 2012, stated that Kill Devil Hills police department employees could refer any complaints or grievances with the department to Tillett who would address them as legally appropriate, but the Appeals Court found that Fitch lacked the authority to issue such an order.

The Appeals Court opinion stated: "The trial court lacked jurisdiction to usurp the personnel policies of the Town of Kill Devil Hills. The order entered by the trial court was not within the scope of its inherent authority. The entry of the order without notice or hearing was a violation of due process. The entry of the order was beyond the scope of the trial court's mandamus authority."

The opinion was in response to an appeal of Fitch’s order filed on behalf of the Town of Kill Devil Hills by Dan Hartzog, Dan Hartzog, Jr. and Jaye E. Bingham-Hinch of the Raleigh firm of Cranfill, Sumner and Hartzog. Fitch did not file a response to the appeal with the court.

The town’s appeal included an affidavit sworn to by Assistant Town Manager Shawn Murphy. It stated, based on “information and belief,” Tillett, angered by an encounter his son had with Kill Devil Hills police officers in 2010, told Kill Devil Hills Police Chief Gary Britt during a meeting with town officials that he had the power to remove him from office.

The Murphy affidavit was part of the record sent to the Court of Appeals when appealing Fitch's order. It is on page 50 and is linked here.

Murphy laid out a series of events that allegedly began with the stop and led up to Fitch’s order in January 2012. No charges were filed against the son.

Murphy was not present at the meeting that was attended by Britt, former Town Attorney Dan Merrell, former Mayor Ray Sturza, Kill Devil Hills Town Manager Debra Diaz and Assistant Police Chief Dana Harris.

Tillett’s petition argued that because Murphy’s affidavit was based on “information and belief” that it is inadmissible. 

According to Tillett's petition, “The facts in the opinion imply that allegations of wrongdoing have been made against Judge Tillett, and that those allegations were unchallenged on appeal. Although no written complaint has been filed with the Judicial Standards Commission (the “Commission”), there is reason to believe that the Commission has begun an investigation based, in part, on the allegations contained in the Murphy Affidavit. This Court’s opinion has aggrieved Judge Tillett by restating the allegations in the Murphy Affidavit as “fact.”

Throughout the Appeal Court opinion, Fitch’s order is referred to as the "second order." The first order in the matter was issued in September 2011 by Tillett, who demanded copies of the personnel records of several employees, including Assistant Town Manager Shawn Murphy and Police Chief Gary Britt, to be delivered to his office. Although Tillett's order was not the focus of the appeal, it was discussed in Murphy's affidavit.

In its opinion, the court noted that Tillett did not have the authority to issue that order and had denied the town due process. There was no pending case and no hearing held before the order was delivered to the town.

Affidavits from former town attorney Dan Merrell and former mayor Ray Sturza attached to the the judge's petition allege that they attended the meeting referred to in Murphy’s affidavit and that discussion of the encounter with Tillett’s son was a small portion of the conversation. Merrell also stated that he turned down Tillett’s offer to hold a hearing on the matter because he didn’t think it was in the best interest of the town.

Tillett's petition states that his order for the personnel records was issued with the consent of the town as a way to preserve evidence. And Tillett notes that the Town's appeal was of Fitch's order, not his. He takes exception to the court's action to vacate his own order.

In response to the petition, the Town's attorneys provided affidavits of the town officials who did attend the meeting as well as a second affidavit from Murphy. The sworn statements of Town Manager Debra Diaz, Murphy, Assistant Police Chief Dana Harris and Britt echoed the position that the meeting was primarily about the police encounter with Tillett’s son.

Tillett's petition is not available as a link from the Court of Appeals website; the Town's response and affidavits to the petition is linked here.

According to Britt’s sworn statement, he defended his officers’ actions and told the judge that they complied with the law to which Tillett allegedly replied that he determines the law. Britt also stated that he offered to show the judge the tape of the encounter but that Tillett refused, remarking that tapes can be altered.

In his affidavit, Harris stated that Tillett said that police officers can’t interpret the laws “instead, they have to go by what the judge says. Judge Tillett said that if a judge said that someone would have to stand on their head, they would have to stand on their head, no matter how crazy it was.” 

Harris also stated that in that meeting, the judge repeatedly said that he could remove anyone from office.

Diaz stated in her affidavit that Merrell told them before the meeting with Tillett that it was just a “venting session” and they should remain quiet and just listen.

In reference to the order from Tillett to provide the personnel records, Diaz’s affidavit stated that Merrell said that they had no choice other than to comply. And it noted that at no time did Merrell say that a hearing could be held or that he had declined such.

The Diaz affidavit also stated that Merrell said his opinion was that the move was personal on Tillett’s part and was because of his son’s encounter with the police.

Also according to her sworn statement, after Britt asked for a copy of the Tillett's order, and Merrell called the judge to see if it could be provided. After the call, Merrell said that the judge was angry that anyone had seen the order and said that Merrell should have just told them what to do.

An affidavit by Town Clerk Mary Quidley focused on the order demanding the personnel records and the subsequent demand that all copies of the order be returned to the judge. Her affidavit states that she insisted to Merrell that she needed a copy of the order to show why the copied records were removed. She stated that Merrell agreed and noted that if anything happened to him and the judge, she would need something to show why the records were removed.

And, she stated, Merrell mentioned that he and the judge would be leaving together on a cruise the next day.

Tillett agreed to allow the town to retain one copy of the order but that it be sealed and that both Quidley and Merrell should sign across the sealed edge.

Both Diaz and Murphy, in their affidavits, state that at no time were they told that there could be a hearing nor did they decline such an event.

And Murphy stated in his latest affidavit that when he asked Merrell why the judge was requesting the records, the attorney replied that it was “all personal. This is about his son. Dan Merrell then stated that Judge Tillett was not going to let it go.”

The latest foray into the court system is just one in a long list of judicial actions taken in the past 18 months related to the controversy.

According to the court records, it began in April 2010 when Tillett’s son and two friends were stopped by Kill Devil Hills policemen. During that stop, the son allegedly called his father although the officers told him not to use his phone while they were interviewing him.

About a week later, the meeting was held with Tillett who allegedly said that, in addition to his displeasure of how his son was treated, he had lots of complaints about how the Kill Devil Hills police conducted their jobs, although he gave no specifics.

In early summer of 2012, Tillett provided four complaints against the police chief from two former and two (at that time) current Kill Devil Hills police officers to District Attorney Frank Parrish to investigate and take action by referring them to a judge who could remove Britt from office. (Since that time, the other two officers have left the employ of the town.)

Parrish drafted a complaint but never filed it. Instead, the town’s insurance underwriters, the League of Municipalities, hired the Hartzogs who have since represented the town in the matter. The League also contracted with a team of law enforcement professionals which conducted its own investigation into the allegations. While the investigation was ongoing, Britt was suspended with pay until the results were released to the town and showed that although there were some management issues, that there was no wrongdoing.

Britt returned to work and Parrish refused to take further action.

When the district attorney declined to attempt to remove Britt, the officers then petitioned to have Parrish removed from office. That petition was found to be lacking by Superior Court Judge Alma Hinton.

Following Hinton's opinion that there were no valid reasons for removing Parrish from office, a subsequent complaint was filed against Hinton who also was absolved of wrongdoing by the Judicial Standards Commission.

A civil suit was filed in February 2012 in Dare County Superior Court by the four officers who provided Tillett with the complaints. The suit was against the Town of Kill Devil Hills, Town Manager Debra Diaz, Assistant Town Manager Shawn Murphy and Police Chief Gary Britt, both in his official capacity and as an individual.

Because the complaint included allegations of violations of federal law, the Hartzogs, the town’s attorneys and attorney Patricia Holland, North Carolina Litigation Manager with the Cary-based firm of Jackson Lewis who represented Britt as an individual, had the case moved to federal court.

In response, Dennis Rose of Rose, Harrison and Gilreath law firm, the attorney for the officers, dropped the federal charges and had the case moved back to Dare County Superior Court.

The petitions filed against Britt included most if not all the same claims laid out in the lawsuit. 

After a hearing in Dare County, Superior Court Judge Henry "Chip" Hight of the 9th Judicial District dismissed all claims against the town officials.

The Judicial Standards Commission will not comment on whether there is an investigation of Tillett.

Saturday, December 1, 2012

Something smells, but it’s not the mullet

On Monday, Dec. 3, the Dare County Board of Commissioners is expected to take up the topic of whether to authorize permits to be issued to allow temporary seafood sales on Hatteras Island – and perhaps the rest of the unincorporated area of Dare County in specific zoning areas and while complying with local health laws. If the request is approved as currently drafted, the permits would be tied to specific locations on private property with the property owner’s permission and assurance that a restroom and parking spaces would be made available to the seafood vendor. It would not allow indiscriminate ‘roadside’ sales. The permit would cover just two identified sites per vendor. Any future permits would be issued only after the applicant could show that he/she met all the standards set out in the proposed language.

At a time when Hatteras Island businesses are being encouraged to think outside the box when creating new business enterprises and strengthening established ones, the response of some to the idea has been met with opposition, misinformation and fear of competition. But the proposal also has garnered a long list of supporters who say the time is ripe for such an enterprise and actually reflects the culture of the island.

The topic was slated for the last commissioners’ meeting but Chairman Warren Judge explained that it had been pulled from the agenda because two of the commissioners were recused and thus there wasn’t a quorum present to discuss and vote on the issue.

Commissioners Richard Johnson and Mike Johnson were not in attendance. Those present were Judge, Jack Shea, Max Dutton, Virginia Tillett and Allen Burrus. A quorum of the board is four commissioners so if they didn’t have enough to vote on the issue, then two in attendance apparently were excusing themselves from participating. And that is the problem. Those refusing to participate in the discussion and subsequent vote were not identified nor were the reasons for their recusals. For those who aren’t familiar with the word, recusal means to be excused from discussing and voting on an issue which is a primary responsibility that comes along with holding the office.

Not participating in decision-making is not something that commissioners can do just because they don’t want to make public remarks or cast a vote on an issue. Decision-making is their job and the only time that they are excused from carrying out this responsibility is if they meet certain tests.

North Carolina law 153A-340 (g) states: “A member of the board of county commissioners shall not vote on any zoning map or text amendment where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. Members of appointed boards providing advice to the board of county commissioners shall not vote on recommendations regarding any zoning map or text amendment where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member.

State stature 153A‑44 states that the board may excuse a member from voting, but only upon questions involving the member's own financial interest or official conduct or on matters on which the member is prohibited from voting under G.S. 14‑234, 153A‑340(g), or 153A‑345(e1).

So where were the questions? They weren’t asked during open session of the board meeting and the identity of those wishing not to participate was not shared with the public. Judge said that applicant Mark Rawl had been notified before the meeting that the item wouldn’t be discussed because of the recusals and lack of a quorum but how did Judge know that if the board had not yet discussed the matter?

The public is left to guess who is being excused from speaking and voting publically about the matter. Two of the members are connected to the grocery business – Burrus owns a grocery store in Hatteras village, a substantial distance from Rawl’s proposed sites. Dutton works for Harris Teeter in Kill Devil Hills. If these are the two members in question, what is the direct and substantial financial impact related to allowing temporary seafood sales in Avon?

And if the other board members feel inclined to believe that Burrus and Dutton meet the level of financial impact required by law, then does that also call into question Dan Oden’s participation in the Planning Board vote? Personally, even though his company leases space to a fish market, I don’t think that has the potential for “direct and substancial” impact any more than that for Burrus and Dutton.

Another concern with the process thus far is the reason given for the Planning Board’s recommendation for the denial. According to a background paper written by Planning Director Donna Creef, the board’s 3-2 vote against Rawl’s request seemed to be based on health and safety concerns, but the health department has jurisdiction over those matters and has set rules to ensure that health and safety of the public is protected. Health and safety is not within the jurisdiction of the Planning Board in this instance.

It doesn’t take a mental giant to know that what is really behind the hesitation to allow this proposed regulated use is that it might be competition to fish markets and some grocery stores. But times are changing in Dare County and perhaps instead of trying to kill the idea, those concerned business owners should start thinking outside the box and consider adding it to their own business models.

A successful retailer will tell you that the profits from impulse buying make a huge positive difference in their bottom lines. Not only do many of the profitable businesses have items next to their registers or at their front doors, they also frequently take their wares outside to lure folks into the building.

Fish markets could easily expand the number of locations for their businesses by using temporary sales permits. The location could be in the next village or, better yet, in their own parking lot. Potential customers often are hesitant about walking into small stores because they feel if they look around, talk to anyone or ask prices, then they are sort of committed to buying something – so to avoid that uncomfortable feeling, they simply don’t go inside. But outside vendors are different. They can ride up in their vehicle and just roll down the window to ask what the catch of the day is – it is a great opportunity to either sell them something on the spot or let them know that a great catch of Red Drum was just delivered from the boat and is available inside.

Grocers also could take advantage by setting up their own seafood stand in their parking lot or allowing someone else to do so. Buying seafood often means also purchasing breader, ingredients for side dishes, spices, etc.

And for those who think I don’t know what I’m talking about, for years from Memorial Day to Labor Day my husband drove all the way to Corolla where he had a temporary seafood stand because he lived in Dare County, then the only county in the state that prohibited them.

For 10 years, his stand was in the parking lot of a small shopping center with the owner's permission. The ice cream store, Winks grocery and the real estate company all benefited from him being there because folks would visit those businesses since they were stopping anyway to buy from Jay. If Jay wasn't open by Memorial Day, the owners of the surrounding businesses were calling to make sure he was coming because they understood the value of him being there.

Never should government be the one to decide who is worthy of doing commerce based on investment. That is a very slippery slope – should small lumber companies such as Dare Supply close down because we now have Lowes and Home Depot? And is it time to get rid of the small clothing stores because TJ Maxx and Belk’s have invested more money?

The answer of course is a resounding “No!” The consumer takes care of sorting the wheat from the shaft in the arena of free trade. So let’s hope government gets out of the way and allows Rawl to exercise his right to earn an honest living.

And while they are at it, go back and clean up the recusal matter – time to get rid of the odor.

Saturday, November 10, 2012

And here is the rest of the story...

The following post reflects only my own personal thoughts and opinions and is not written on behalf of the Wings Over Water Wildlife Festival partner organizations – Coastal Wildlife Refuge Society, Outer Banks Sentinel, Carolina Bird Club and the US Fish and Wildlife Service - or any of the participating businesses that work with us each year.

The public has been grossly misled by the Dare County Board of Commissioners about the events surrounding the Pea Island Wings Over Water trips. Hatteras Island residents deserve better than being fed misinformation aimed at angering and misleading them. This is deflecting focus away from the real issue of why the islanders don’t have reliable access to their homes and businesses.

Audubon is not a partner of Wings Over Water nor are there any discussions – now or in the past ‑ between the Wings Over Water steering committee and Audubon. And just to get down to the facts, Audubon is not one of the plaintiffs in the legal proceedings over the bridge. The board of commissioners has spent a ton of money lobbying on these issues so they do know that.

Immediately following the DOT announcement that visitors would be allowed on the ferries, all participants in Hatteras Island Wings Over Water programs were told that if they wanted to get to their programs, they would have to go over the night before via ferry and, depending on what time of day their program was, may have to come back the day following their program(s). The Chamber of Commerce also was notified and asked to send out a message to motels and cottage rental companies on Hatteras Island asking that they contact the WOW coordinator so that he would know where to steer participants who needed help in booking rooms. There was never any discussion about Hatteras Island program participants accessing the island via Pea Island. Check it out with the Chamber or its members on Hatteras Island or DOT.

The issue with not allowing access across Pea Island wasn't about the bridge; it was because the road wasn't repaired beyond Pea Island Visitors Center. Heavy equipment, tractor-trailers and other needed repair vehicles have been using Bonner Bridge since divers determined it was safe a couple of days after the storm. Ask DOT.

Fish and Wildlife can not make any decisions regarding who and when folks can use the road or the bridge because only DOT has that jurisdiction. As far as driving on the beach, if you've seen pictures, then you know that in several places there is no beach. And the road on both sides of the temporary bridge had (has) problems. But even if there was a beach and a safe temporary bridge at the time, any decision about whether to allow driving on the beach could not have been made locally - that would have to have come from way up the bureaucratic food chain which, in government, is always a time consuming action. And any decisions about using the road and bridges are from DOT.

And none of this had anything to do with permits needed by DOT to fix the road. Fish and Wildlife has signed off on every request, including allowing a temporary gravel road to be placed on the refuge to allow driving around a problem area. Check it out with DOT.

And WOW is not and has never been made up solely of member organizations that are conservation groups. In the past, the Paddlers Club, Chamber of Commerce, Roanoke Island Festival Park have been members and there are probably going to be a couple more this next year. The Outer Banks Sentinel has been and still is a partner for the past decade. Although retired from the newspaper, I’m still its representative on the steering committee for WOW.

The mission of WOW is to promote appreciation for our environment, history and natural history while helping boost the economy during the shoulder season by bringing visitors to the area. For more than half its existence, WOW was one of the few programs that focused on bringing visitors to the area during the shoulder season. Some locals participate but most are from other parts of the state and usually about a dozen or so other states.

My husband is an angler, commercial fisherman, seafood wholesaler, duck hunter and a birder! In fact, he led two WOW birding programs on the Alligator River Wildlife Refuge this week. He refuses to be a member of Audubon because of all its rhetoric and misinformation. Birders come in many shapes and sizes and political backgrounds. To try to demonize an entire group of people who have an interest in any hobby should be beneath the Dare County Board of Commissioners. 

It may be shocking to some, but there are Audubon members who are taking part in the angling tournament this week. There also are CCA members - the CCA is the group that has been trying to shut down commercial fishing in North Carolina for two decades. But there aren’t outcries about that, nor should there be. Perhaps if we all fished together more often we could get away from the rhetoric inspired by the board of commissioners and the Southern Environmental Law Center. Neither one limits its discussion to facts.

During its meeting on Monday, the commissioners approved a proclamation related to community foundation week. Skipper Hines, the chairman of the Outer Banks Community Foundation presented the information and requested the board issue such a proclamation. The county’s recreation department and the Sheriff’s Office also were on the meeting’s agenda; both are seeking funds from the Community Foundation for very worthwhile projects. Not said, but known to at least two commissioners, is the fact that the new executive director is coming to the position from her former job as communications director with the Audubon Alaska. I know that they knew because I shared in the information with them weeks ago because I knew there would be pushback on it.

But are we or should we be running background checks on everyone who enters Dare County? No, that is ridiculous and to single out one event and ignore the others sort of tells the tale on this one. And the fact that the outcry was prompted the weekend before the commission meeting by Warren Judge who sent out an email letter to Hatteras Island residents to tell people to “make noise” by contacting legislators, etc. is a disgrace as is its misinformation and tone. I’ve always considered Warren a friend and it confuses and hurts me greatly that he would resort to this sort of thing leading up to an election.

And then there is the personal letter that a Coastal Wildlife Refuge Society member, Stanley Oliver, wrote and was attached to the complaint to try to stop the issuance of the CAMA permit needed to replace the bridge in its current location. I know, like and respect the man and he has every right to voice his opinion and the letter was a personal one, not on behalf of the society – a fact that the society has acknowledged to all who have asked about it. The complaint itself makes it sound as though CWRS is a party in the legal action: it isn’t.  The complaint advocates ferry transportation which is ridiculous.

Stanley’s reasoning is that given the fact that DOT has refused to address the problems with the road, it will be a bridge to nowhere. He is right. Even today, if a brand new bridge was standing, Hatteras Island residents would not have access to their homes and businesses. The commissioners decided 10 years ago that they wouldn’t agree to a long bridge because it would take away vehicle access to Pea Island. DOT has stated that it will no longer maintain the road if ever there is alternate transportation route. The Fish and Wildlife is not funded to maintain roads so although the refuge would remain open, it can not guarantee that there would be vehicle routes.

At the time the board made the decision to fight for keeping the current route in place, I agreed with them because I love going to Pea Island to walk and enjoy the beach. And I knew if there is no access, then the Pea Island Visitor Center would be closed. The facility is the primary source of income for the Coastal Wildlife Refuge Society so would be a huge financial hit for them. The money earned there is used to pay for three employees who work with the volunteer and intern programs; do the administrative work for WOW; and run the gift shops. The profits also have been used on many other projects including building boardwalks through some areas of the refuges and providing paddling ramps – both of which are extensively used by the public.

And I was concerned about possible environmental issues related to disturbing the bottom of the sound and run off from the bridge if it was located above water.

But the increased frequency of new inlets and breeches over the past few years has convinced me that it is a fighting-windmills type dream. The only way to reliable access to Hatteras Island is to bridge the entire Pea Island roadway which might be why DOT refuses to announce a plan. If that is done, it obviously is going to remove most if not all vehicular access to Hatteras Island because it can only be built if the entire road is closed down for at least a couple of years while the construction is ongoing. And at the same time, the island is quickly eroding so if it is bridged above where the road is now, eventually it will be over the ocean. For those who might not know or remember, NC 12 used to be on the east side of where the now-gone Pea Island headquarters buildings were. It had to be moved to the west of the headquarters because of erosion threatening to claim it. The original road is now somewhere out in the ocean.

My opinion is that Stanley has been used by both sides. We all had the opportunity this week to go to the polls and voice our opinions. The same Constitution which ensures us that right, ensures his right to voice his opinion just as it does for all of us. There is a request that the society remove its name from the lawsuit but I think it would take hiring an expensive attorney to do that and that is not possible given the society’s current budget. And the board has gone on the record as stating that it didn’t know its name was used. But regardless of what steps they take, it won’t change the legal landscape. The suit will still exist.

There’s another issue that needs to be addressed related to Bonner Bridge and is thwarting any attempts to find a reasonable solution to access to Hatteras Island.

Years ago, when Gov. Martin managed to get the groin on the south side of the inlet, it was done with the understanding that if there is no longer a bridge across the inlet, then the groin must be removed. If that happens, there is little doubt that the inlet will close and that would severely impact both commercial, charter and recreational fishermen who would be forced to go to Hatteras Inlet. The negative economic impact to Dare County would be tremendous. Instead of fighting windmills, the groin issue needs to be somehow removed from the fight over the bridge. That would allow better decisions to be made about the placement of both the bridge and the road. And concentrating some efforts solely on the groin might net some solutions that will ensure the inlet stays open and in place.

Hatteras islanders need to let the board know what is more important to them – having reliable access to their homes and businesses or having guaranteed vehicular roads in Pea Island – when the island is accessible. This is getting more iffy every year as more inlets cut through or attempt to cut through the island. I said this to one of my Hatteras Island friends this week and her response was that having the bridge without addressing the road issues is a compromise. But I don’t understand this - a compromise between what? Between having a safe bridge and still unreliable access or having unreliable access with an unsafe bridge? Neither is a winning situation for my friends on Hatteras Island. They deserve a reliable, safe transportation corridor – just like everyone else in the state.

But while everyone fires shots at each other, I’m going to continue to work on projects that I think benefit the residents of the county. The money we raise each year through WOW is used to support nature programs in Dare County Schools. Many of the grants have gone to Cape Hatteras schools for transportation costs for field trips, supplies and even classroom equipment. As long as we are benefitting the children of Dare County, I will continue to work with and support the Wings Over Water program. And as long as any project ultimately benefits my friends and neighbors in Dare County, I will try to contribute to it.