Paper trail takes many turns in KDH police story

What started more than seven years ago as rumblings about the internal management of the Kill Devil Hills Police Department has mushroomed into allegations of conspiracies, cronyism and abuse of power.

Selective examination of court and town documents might lead to several conclusions, but none of them, taken alone, can bring full clarity to the still unfolding story.

Some show that at least four police officers went beyond normal channels to pursue asssertions that they had been mistreated by the police administration.

Others might suggest a Superior Court judge collaborated to discredit the police chief after a run-in between his son and two officers in 2010.

Still more revolve around District Attorney Frank Parrish and Kathryn Fagan, a lawyer who has filed three affidavits from citizens who allege Parrish failed to carry out his duties.

Then there is the document that revises town policy and prohibits police officers from taking their grievances outside the town’s chain of command. The town says it has never implemented such a policy. One report says the judge who banned such a policy was given erroneous information. But the document does exist.

The Court of Appeals file for this case is where many of the documents have landed, some emerging as late as Thursday.

Most have become public following inquiries by The Outer Banks Voice about why the chief was suspended for three months and why he was reinstated in December of last year.

An affidavit and a conspiracy theory

One of the most recent reports suggests collaboration aimed at discrediting the chief. It hinges on an affidavit by an assistant town manager about a meeting he did not attend.

The affidavit by Assistant Town Manager Shawn Murphy says that Superior Court Judge Jerry Tillett met with officials that included Chief Gary Britt and Assistant Chief Dana Harris in April 2010 — almost two years ago — to discuss a run-in the judge’s son had with two Kill Devil Hills police officers.

This version of the story eventually takes the players ahead 18 months and has led some to believe that Tillett has a personal ax to grind with the police administration.

Murphy’s affidavit was submitted “based on information and belief,” which has a distinct legal meaning:

Language used in legal proceedings to qualify a statement and prevent a claim of perjury. A person making a statement based on information and belief often lacks personal knowledge as to the statement but has a belief that the information is correct.” — Nolo.com

The affidavit was part of Kill Devil Hills’ appeal of a recent order by Judge Milton Fitch. On Jan. 27, Fitch barred the town from enacting a policy prohibiting police officers from taking grievances outside of the town’s chain of command.

Fitch’s order came after at least four officers had sent letters to Tillett concerning their treatment by the police administration. Complaints from police officers who believe their grievances have not been addressed by the town are handled by the chief Superior Court judge in consultation with the district attorney.

Several attorneys interviewed said this type of affidavit cannot be used by the courts, which raises the question of why the town chose to include Murphy’s affidavit and nothing from the people who participated in the meeting.

But once it was filed in court, it became available to the public — and the media.

Murphy’s affidavit states the judge discussed his son at the meeting, refused to view a police video of the encounter and told Chief Britt “he had the power to remove people from office.”

Attorney John Trimpi, of Trimpi & Nash in Elizabeth City, speaking for Tillett, wrote in a statement that “Judge Tillett did not order anyone to the meeting and the meeting was arranged by town officials.”

“Many issues were discussed, including the long history of multiple complaints and issues raised involving officers of the Kill Devil Hills Police Department,” Trimpi wrote. “The people making those complaints included Assistant District Attorneys, attorneys, other judges and citizens. Recent cases were also discussed at the meeting.”

Murphy’s affidavit said that in June 2011, Britt received a letter from Tillett stating he had received complaints about the chief. Murphy did not report in the affidavit that he received a similar letter from the judge, making him a potential party to the dispute.

Finally, Murphy reports that on Sept. 11, Tillett ordered personnel files delivered to his office “before the end of the day,” adding “We were not aware of any pending court action related to the Order.”

The town was aware that officers had filed complaints by this time and that those complaints alleged tampering and other mishandling of personnel files. Two days later, Parrish, the district attorney, sent a letter to Tillett saying that he was filing a petition to remove Britt from office.

See Shawn Murphy’s affidavit »

The town’s internal review

In a statement from the town on Jan. 25, 2012, what has been bandied about as an “independent panel of experts” was assembled with assistance of  “the risk management division of the North Carolina League of Municipalities.”

The league is the insurer for the town and could be on the hook if complaints from police officers resulted in civil damage awards. Kill Devi Hills officials consulted with the league before a panel of members with law enforcement backgrounds was assembled to help the town conduct the investigation of the police administration.

One might also question what motive the league would have in revealing any issues with the police department to the public, as this could add merit to the complaints of the officers. However, the town says the League assisted in putting together the review, and some could argue the panel was indeed independent, not working for the League.

Still, the town’s statement, which was released after commissioners waived personnel privacy rules, provided no information about what was behind the review — only that it cleared the police administration of any willful wrongdoing. It added that the chief was given some guidelines on improving management style.

The town’s legal counsel of Cranfill Sumner & Hartzog denied a request for a copy of the investigation or review. It is likely this report contains confidential employee information and statements and to release it could constitute a violation of laws protecting public employees personnel files.

See the town’s statement »

The town and the District Attorney

As part of a filing to the Court of Appeals by attorney Dennis Rose, two exhibits from the office of District Attorney Frank Parrish are included. Rose, who represents four officers who have filed complaints with Tillett, is challenging the town’s appeal of Fitch’s ruling on personnel policy restrictions.

There also exists a letter addressed to Tillett from Parrish saying he is writing “to inform you of a matter that is the subject of prospective litigation. Based upon averments from qualified Dare County electors and consistent with the provisions of G.S. 128-16 et. seq., I am drafting and preparing for filing a petition for the removal from office of Gary Britt, Chief of Police in Kill Devil Hills.”

Electors generally refers to citizens.

Also included in the filing is the undated, unsigned petition Parrish drew up and sent to Rose when he was inquiring on the status of the ongoing investigation by the D.A.’s office.

See the draft of the petition »

The petition, which has not been filed, was the impetus of the town’s internal investigation. The town’s statement said that it contacted the League of Municipalities after it learned the D.A.’s filing was “imminent.”

Even before town’s statement was released, information about the D.A.’s investigation was beginning to emerge.

The week before, one of two affidavits filed by attorney Kathryn Fagan contended that Parrish had ignored a complaint against the police chief filed by officer Andy Ennis.

Ennis’ affidavit referred to his contact with Parrish and said he was assured that his grievance would be investigated. See the affidavit »

The District Attorney and the resident chief Superior Court judge are empowered by law to remove a police official or sheriff if specific violations are proven.

Judge Fitch and the “new policy”

Some matters were referred to Judge Milton Fitch, who presides in Wilson. Fitch issued an order that “stayed” a reported new policy the town was about to implement relative to police department personnel procedures.

This is the policy that would have prohibited police from taking grievances beyond the town’s chain of command and to outside agencies.

The town said in its Jan. 25 release: “At no time has the Town implemented any policy under which anyone is denied the right to speak out on matters of public concern.”

Rose’s filing with the appeals court, however, includes an e-mail by Murphy addressed to the two new commissioners, the new mayor, two incumbent commissioners, the town attorney, the League of Municipalities and the town’s counsel in Raleigh.

It says: “The Town Manager and myself have discussed the issues identified for implementation with the Chief (see attached). He will return to duties effective today.”

An attachment is entitled “Police issues for implementation by the police chief as of January 2012.” It contains the matters of concern specified by Judge Fitch in his order.

While the town contends that it has never implemented policies to restrict employee rights, paragraph 2 makes it a violation of department policy for employment-related conditions to be reported to any other person except supervisors up to the Chief, the Human Resource officer or his designees, or the town manager.

It appears that at the very least, the new policy was under consideration.

See Murphy’s e-mails and the new policy »

The officer’s complaints

In their complaints, officers spoke of dual personnel files, one kept by the chief and the other in Human Resources that carried different information.

The “new policy,” which was recommended by the panel, changes the town’s practice of keeping “mirror files.”

At least one officer also complained of being assigned quotas, and the new policy prohibits use of minimum “individual arrest, citations or general information duties” and appears to tighten even further the ability of officers to air employment concerns outside the town’s organizational chart.

State law prohibits the state police from using quotas, but in a letter to Murphy on May 3, 2011 Britt indicated that quotas for local police could also violate the statute. See an excerpt from the letter »

All three new policies appear to be designed to correct issues raised by the officers in their complaints.

This story, however, begins long before April 2010 with complaints by and about officers of the KDHPD.

The events that triggered the current episode boil down to four officers who, for whatever reason, were not satisfied with the handling of their complaints.

They began taking the complaints to a local attorney and a Superior Court judge, requesting removal of the chief under a statute that only grants that power to a judge and the concurrence of a D.A.

The complaints are still unresolved, and the core issue has been overshadowed by stories of conspiracies, cronyism and abuse of power.

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