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.


  1. why isn't any of the regular media reporting this? who's pocket are they in? this is a disgrace that we have to read it on a blog instead of a front page.

  2. And, I'll betcha that if you write a Letter to the Editor of both local newspapers and ask them that question, your letter won't get published either. That's the way it is, sometimes, in Dare County. Unfortunately.

  3. Daily Advance in Elizabeth City has a story online this morning.

  4. Sandy, I wasn't able to read the Daily Advance article. Any way you could copy and paste it here in the comment section?

  5. Sorry, but I think it would be in violation of copyright laws. I would post the link but it opens only to subscribers so won't allow you to read it without first subscribing.

  6. Kind of confusing. What exactly did he do?

  7. Read the Court of Appeals opinion and the town officials affidavits filed in the town's response to Tillett's petition for a new hearing before the court. It is a confusing situation with many twists and turns.

  8. This is an interesting story especially after reading all of the affidavits. Regardless of what started this controversy, the judge appears to be out of pocket. Seems he listened to unofficial complaints and formed an opinion. Based on that preformed opinion he wanted to be the investigator, judge, jury and executioner. He wanted to preside over a matter that he started and/or already decided guilt. This goes against the checks and balances of our government as well as the judicial process. Poor form from the head judicial official in the district. The term corruption is thrown around a lot but it seems that he is no better than those he accused. Sad state of affairs.

  9. Editorial from Dec. 29 Daily Advance