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.