Top 10 Stories of 2013 - No. 4

  At the end of the year, publications often do a recap of what they deem to be the biggest stories of that calendar year. But I dance to a different drummer so below the reader will find the first four potential Top 10 stories I would like to read in 2013. To keep the posts from being too long, I am posting them separately over several weeks. They will not appear in any particular order - it isn't possible to predict the impact of stories until all the facts are known so there is no way of predicting which will prompt the most impact and/or interest.
   So here we go...

2013 Story No. 4

    According to a story posted on the N&O website on Jan. 9, the North Carolina State Board of Education was set to vote on whether to allow online charter schools for K-12. These for-profit virtual schools, if approved, would be eligible to receive taxpayers' dollars as do traditional charter schools.

   The number of brick-and-mortar charter schools has been and continues to grow across the state. The creation of some, such as the new charter school in Corolla, are easily defensible. That small school is serving about two dozen students who previously either had to pay tuition to attend Dare County schools or be bused through Dare County, across Wright Memorial Bridge and onto Currituck County mainland. The distance between their home village and the schools that they attended made for long days for the children and made it difficult for parents and students who wanted to be involved in school activities such as sports, teacher conferences. etc.  

   But charter schools opened to fill this type of need thus far have been the exception. Many are opened simply because parents want a private school type situation funded by tax dollars.

   When a charter school is approved for operation, the per student amount of tax dollars allotted to the public school system is transferred from the coffers of the public school system to charter school. For instance, if Dare County gives the Dare County Schools $5,000 per student, that amount is transferred to the charter school for each student enrolled thus shrinking the public school budget. The charter schools do not receive funding for buildings or maintenance.
   Due to charter schools funding, Pamlico County school system may lose about one-third of its funding in the next budget. Martin County, a low-wealth county, is shifting more than $350,000 from the local public school system to charter schools.
   An analysis of the impact of charter schools on public education is probably long over due. It would be interesting to see the following questions answered in a story about the topic:
    1. What is the overall educational standards track record of charter schools in North Carolina? How to they compare with public school districts?
   2. What oversight is provided by the state to ensure that state-mandated curriculum is followed?
   3. How do students who leave charter schools to attend public schools adjust? Are they behind or are they ahead of their peers?
   4. Do any of the charter schools have mandated religious or unique interest training and, if so, should that be funded with tax dollars?
   5. Have charter schools prompted public schools to improve their course offerings and teaching standards? Or, because of pared back budgets, are they offering less learning opportunities and reducing their teaching expectations?
   6. Has the loss of students to charter schools caused public schools to be less cost effective? If the expense for teaching a course averaged $100 per pupil, does the reduction of students now make the course financially prohibitive to offer? 
   7. Should local elected officials and/or the local voters have a voice in whether to use tax dollars to fund charter schools in their districts?
   This would be an interesting story for some enterprising reporter. And the public has a right to know the answers.
   
   

And here comes the judge...again

    Attorneys representing the Town of Kill Devil Hills have asked the North Carolina Supreme Court to place sanctions against attorneys representing Dare County Resident Superior Court Judge Jerry Tillett. Representing the judge are Kevin Rust and Norm Shearin of the Raleigh office of the Norfolk-based firm of Vandeventer and Black. 
    [The earlier version of this post stated that the sanctions, if granted, would go against the judge. That was incorrect.]
   The judge first sought a hearing before the North Carolina Court of Appeals 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. Both orders were issued against the town. 
    In seeking the hearing, it was argued that although not a party to the suit, because the Appeals Court had vacated his order and because the Judicial Standards Commission may be investigating his actions related to the Kill Devil Hills Police Department, the judge was entitled to a hearing.
    The Appeals Court refused Tillett's request. He was not a party of the original case.
   In response, on Dec. 20, a petition was filed on Tillett's behalf by his attorneys with the Supreme Court. 
   The town responded to the petition through its attorneys in the matter, Dan Hartzog, Dan Hartzog, Jr. and Jaye E. Bingham-Hinch of the Raleigh firm of Cranfill, Sumner and Hartzog. 
   The attorneys argued that Tillett had no standing to enter the suit at this point and noted that he had remained silent up until that point.
    And now, Tillett's attorneys, have filed a response to the town's response although Supreme Court rules do not allow such filings.
    The town's attorneys have responded by asking that the Supreme Court place impose sanctions against the attorneys for filing frivolous actions and for violating the court's rules.
    The most recent filing on behalf of Tillett is linked here.
    The request for sanctions is linked here.
    For more on the background of the case and and links to previous filings, scroll down to earlier related blogs on this site titled "Oh, what a tangled web... " and "Top 10 Stories of 2013 - No. 1."

   

Top 10 Stories of 2013 - No. 3

    At the end of the year, publications often do a recap of what they deem to be the biggest stories of that calendar year. But I dance to a different drummer so below the reader will find the first three potential Top 10 stories I would like to read in 2013. To keep the posts from being too long, I am posting them separately over several weeks. They will not appear in any particular order - it isn't possible to predict the impact of stories until all the facts are known so there is no way of predicting which will prompt the most impact and/or interest.
   So here we go...

2013 Story No. 3

    According to a story posted on the N&O website on Jan. 13, the North Carolina Board of Transportation has voted to increase fees on ferries currently charging vehicles and to add tolls to several routes that have been free. These new taxes become effective on July 1.
    The link to the story is: http://www.newsobserver.com/2013/01/12/2602599/board-of-transportation-members.html
    The only ferries not to come under the new toll rates on July 1, are the Hatteras-Ocracoke route and the Currituck-Knotts Island route. Some board members, states the story, objected to not charging tolls on the two exempted routes because the Hatteras-Ocracoke route is the most heavily used in the state. If it also was taxed, it would allow reducing the tolls on the other ferries, they argued.
    Ocracoke Island is accessible only by ferry - either the taxed ferry from Cedar Island and Swan Quarter on the mainland or via Hatteras Island ferry which is free. If the Hatteras-Ocracoke route is tolled, there will be no free way to access the island. Ocracoke residents would have to pay to access any other part of the state. 
    The ferry trip from Ocracoke to Swan Quarter - the county seat for Hyde County that includes the island - takes about 2.5 hours one way. The only "free" transportation corridor is via Hatteras-Ocracoke ferry, then NC 12 north to Whalebone Junction, west on US 64 to US 264 in Manns Harbor, and then approximately two hours to the county courthouse for a total of about 6 hours.
   An interesting story about this issue would answer the following questions:
    1. Does State law and/or the North Carolina Constitution guarantee that the public can move freely throughout the state? If so, how would that apply to Ocracoke islanders if use of the Hatteras-Ocracoke ferry was taxed, thus removing the only free access to the island?
    2. Is there any location in the state that can be accessed only by paying a tax? Where?
    3. Taxes on the Ocracoke-Swan Quarter and Ocracoke-Cedar Island ferries will be more than doubled beginning on July 1. How will that affect the cost of supplies and services provided to the island from the mainland? Who will be the hardest hit by this increase?
    4. Will the increased tax pull money out of the local economy? If so, will this impact small businesses, particularly those that remain open in the winter when there is little tourism?
    5. If the island's economy is negatively impacted, will there be a secondary impact on other state agencies' budgets? If a resident has to go to the mainland for medical services on a regular basis, will the increased cost discourage them from seeking the healthcare they need? 
    6.Will the added cost of transportation equate to a larger number of residents getting increased financial help and food stamps from Social Services and higher reimbursements from Medicaid? Will other government agencies have a direct cost by having to pay the tax for their vehicles/passengers? 
    7. The stated goal of raising the taxes is to collect an additional $5 million with which to partially fund the ferry division. Other taxes already in place - such as the gas tax - are used to fund the Department of Transportation of which the Ferry Division is a part of. Is there a goal of tolling all transportation corridors across the state to offset the cost of maintaining roads, highways and bridges? 
    8. If not, why are these water transportation routes that are part of the State system being taxed?
    9. Before passage of the increased and new taxes, was there an economic impact study done to identify potential unintended consequences?
    10. If, at a later date, the Hatteras-Ocracoke ferry route is taxed, how will that affect businesses who rely on employees who use the ferry to travel from home to work? 
    11. Will the General Assembly take up this issue when it convenes? How do these taxes fit into the promise of less taxes so that there can be more economic growth?
    12. Frequently, the fact that the coast depends on tourism is used to try to argue that not all those being taxed are residents. But, in this case, all the residents are being taxed regardless of how many tourists use the ferries. Does it really make a difference who pays a tax?
    Please let me know if you find this story - I'm anxious to read the answers.
    

Top 10 stories of 2013 - No. 2

  At the end of the year, publications often do a recap of what they deem to be the biggest stories of that calendar year. But I dance to a different drummer so below the reader will find the first two potential Top 10 stories I would like to read in 2013. To keep the posts from being too long, I will post them separately over the next several days. They will not appear in any particular order - it isn't possible to predict the impact of stories until all the facts are known so there is no way of predicting which will prompt the most impact and/or interest.
   So here we go...

2013 Story No. 2

   Many news outlets are increasingly using press releases on which to base stories without looking at the underlying data and/or seeking out other information.  Often the releases are from special interest groups that have a fixed position and their own agendas.  
   I began my writing career as a ghost writer for scientists and learned early in the process that "confounders" can completely negate the validity of the research if not acknowledged and taken into consideration when trying to reach a defensible conclusion.
    An excellent example of how ignoring confounders can affect journalism can be found in this editorial that recently appeared in the Virginian Pilot:  
    http://hamptonroads.com/2013/01/orv-crisis-didnt-come
    The editorial, based on an earlier news story in that publication, proclaimed that there has been no crisis on Hatteras Island due to beach access restrictions. And, in fact, it states that 2012 has proven to be a banner year for the Outer Banks - according to occupancy tax collections and attraction visitation statistics.
    The occupancy tax collection totals by district can be found at this link.
    The county-wide occupancy tax collection totals by year are available at this link.
    Attraction visitation statistics can be accessed at this link.
    It would be refreshing to see them go back to the drawing board and actually look at and analyze the data, develop an understanding of what it means, and poke around a bit to find the confounders. I don't think it is possible to quantify what the economic impact has been to Hatteras Island - because there are too many confounders. And I also think that a review and further research might not result in proclaiming that the Outer Banks had a record-setting number of visitors. I do think that there is a very good story to be found but they will have to look for it.
    Here are some questions I'd like to see them ask:
    1. What is an occupancy tax and exactly what is it charged against?
    2. Comparing year-to-year totals of tax collected, how are the reports adjusted to keep an apples-to-apples basis? Are increases in rental rates accounted for? Are new services provided that increase the amount of tax paid by the renter noted? 
    4. How is it possible to take a tax collection total and translate it into the number of actual visitors?
    5. In the past five or six years, have any IRS rulings changed what the tax is applied against and thus had a major impact on the total collected?
    6. Attraction visitation statistics are gathered in a wide assortment of ways by the reporting venues. The National Park Service uses a traffic counter to collect information about how many cars drive through the Seashore which begins near Whalebone Junction in Nags Head and ends on Ocracoke Island, south of Hatteras Island. How does the traffic count separate vehicles driving back and forth to work, supply trucks delivering merchandise and DOT vehicles from those driven by tourists?
    7. Is the traffic count reflective of tourists visiting the Seashore or simply of the number of vehicles using NC 12? How many vehicles go to destinations such as Coquina Beach and Bodie Island Lighthouse which are north of Oregon Inlet? How many cross Bonner Bridge to go only as far as Pea Island? How many to Hatteras Island? How many to Ocracoke Island?
    8. Why don't the statistics for Cape Hatteras Lighthouse correlate with the increases/decreases in the traffic count?
    9. What is the  unemployment rate since 2007 to present for Dare County for the month of October? What is the rate for that same period north of Oregon Inlet? South of Oregon Inlet?
    10 What is the total annual amount of food stamps issued in Dare County from 2007 to present date? North of the Oregon Inlet? South of Oregon Inlet? 
    11. When were tourists evacuated off Hatteras Island before Hurricane Irene?
    12. When was access via NC 12  to the island opened to the public after the hurricane?
    13. Where did all the visitors listed as going to the seashore come from in September and October 2011 since most of NC 12 south of the inlet was closed to the public?
    14. In November 2011, there was an influx of visitors reported as going to the Seashore. Was this unusual increase in traffic on NC 12 due to tourists flooding into the area to see the destruction? Or were a large number of the visitors employees of FEMA and other agencies who went in to help with relief and recovery efforts? Could some of the travelers have been insurance adjusters who had waited for the road to open because they didn't want to spend several hours riding ferries which provided transportation while the road was closed? And was there an usual amount of construction crews and materials going into the area?
    The answers to these questions are all obtainable - just takes a real newsperson to search them out.
    

Top 10 stories of 2013 - No. 1

    At the end of the year, publications often do a recap of what they deem to be the biggest stories of that calendar year. But I dance to a different drummer so below I've posted the first of what potential Top 10 stories I would like to read in 2013. To keep the blog from being too long, I will post them separately over the next several days. They will not appear in any particular order - it isn't possible to predict the impact of stories until all the facts are known so there is no way of predicting which will prompt the most impact and/or interest.
   So here we go...

2013 Story No. 1

    The North Carolina Court of Appeals turned down Resident Superior Court Judge Jerry Tillett's request for a second hearing about Kill Devil Hills' appeal of an order issued by Judge Toby Fitch which, if upheld, would have allowed police officers to take their employment complaints directly to Tillett.
    In his petition to the COA, the judge, via his attorneys, argued that because the Court of Appeals mentioned that Tillett didn't have authority to issue an earlier order demanding that the town provide copies of several personnel files, that he has been aggrieved and deserves an opportunity to tell his side of the story.
   In his filing with the COA, it was stated that Tillett was seeking review, in part, because the Judicial Standards Commission - the body that oversees and, when applicable, disciplines judges for bad behavior - might be investigating Tillett's actions taken against the Kill Devil Hills Police Department and other town officials.
    The COA in its ruling noted that there was no hearing, charges or existing court case on which to base the orders - Fitch's or Tillett's. Now, denied a hearing by the Court of Appeals, Tillett's attorneys have petitioned the NC Supreme Court to review the COA's refusal to allow another hearing so that Tillett can speak.
   Tillett's filing with the Supreme Court can be found at this link.
   The Town's response to the Supreme Court filing can be accessed at this link.
   Clearly, not all of this story has filtered to the surface. Let's hope that in the coming year, readers will have an opportunity to read a story or stories that elaborates on these issues:
   1. What prompted the police officers to file complaints against the police chief with Judge Tillett? How did they know that they could take such action?
   2. How did the complaining police officers choose the attorney who represented them in their failed lawsuit against the town and police chief? Who and how was the attorney paid?
   3. How did the complaining police officers choose the attorney who represented them in their failed attempt to have District Attorney Frank Parrish removed from office? Who and or how was the attorney paid?
   4. In addition to the attempt to remove him from office, were there other actions or threats made against the district attorney? If so, what were they and by whom were they made?
   5. How did the complaining police officers choose the attorney who represented them in their failed attempt to have Superior Court Judge Alma Hinton disciplined by the Judicial Standards Commission after she determined that there was no valid reason to remove the district attorney from office? Who and/or how was the attorney paid?
   6. After issuing his order that would have allowed all police department personnel complaints to go directly to Judge Tillett, why did Judge Fitch say he did not have jurisdiction over the matter? Why did Fitch sign the order when there was no existing case and it was outside his judicial district? Why didn't he file a response to the Town's appeal to the Court of Appeals?
   It's obvious that the entire story about this matter has not been made public. Let's hope all the facts surface this year so that those who are guiltless have their reputations cleared and those with ulterior motives have a bright light shone on them. The public deserves no less and the press has a responsibility to keep digging until they hit the bottom of the trash heap.

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.

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.