Legal haze shrouds central KDH story

By on March 12, 2012

The story surrounding Kill Devil Hills and its police chief seems simple on the surface.

Two current and two former police officers filed petitions to remove or investigate Chief Gary Britt. They were addressed to the Dare County Superior Court and turned over to the District Attorney, as the law requires.

That process began in June, 2011, and since then, readers of local websites have taken sides and called for resignations of elected and appointed officials.

Conspiracy theories have cast a shadow over the discussion, diverting attention from the complaints against the chief and the way the town has dealt with them.

How did four petitions filed against a police chief explode into a controversy with such complexities?

In reviewing documents and reconstructing time lines, we can answer some questions. Others remain a mystery. We can even identify what might represent the “smoking gun,” documents that could vindicate the complaining officers or exonerate the chief.

In June 2011, the first officers addressed petitions to the Superior Court. More were filed in August 2011.

The next critical date is Sept. 13, 2011, when District Attorney Frank Parrish addressed a letter to Superior Court Judge Jerry Tillett clearly stating that he intended to remove Britt from office.

Parrish cited the relevant statutes and referred to the petitions signed by the officers and county electors, a legal term for citizens supporting their claims. He informed the judge he would draft the petition for removal himself, and later, he sent a copy to Dennis Rose, the attorney representing the four officers.

That letter set in motion the decision by Kill Devil Hills officials to quietly put Britt on non-disciplinary probation while they conducted their own investigation in conjunction with the North Carolina League of Municipalities, which underwrites the town’s insurance. It was neither announced nor explained to the public.

After Britt was reinstated in December, three months later, town officials reluctantly disclosed that the investigation was the reason for the suspension and said the probe had revealed no intentional wrongdoing.

The District Attorney’s petition was never filed. Even though Parrish seemed prepared to do so, his attorney later said in a letter to the court that he found no legal reason to remove the chief. He also cited the town’s internal investigation.

A second set of questions centers on the town’s use of careful language to disguise what was occurring behind the scenes and, in some cases, deflect attention from the officers’ complaints to speculation implying judicial abuse of power.

Kill Devil Hills appealed a ruling by Superior Court Milton Fitch, who said the town had no right to implement a policy prohibiting police department employees from taking their grievances to outside agencies.

Contrary to repeated reports, the order did not compel them to file grievances with the court. It simply said the town could not deny them that option.

Town officials insisted that no such policy was ever put into place. The order has been put on hold until it is legally resolved.

The bulk of the appeal is what one might expect: a legal argument stating the judicial branch overstepped its bounds, especially regarding the judge’s order that town employees could file grievances with the Superior Court.

But placed within the town’s appeal was an affidavit from the assistant town manager. The affidavit describes a meeting between a judge and town officials that occurred shortly after the judge’s son had an encounter with two members of the police department.

The affiant then suggests a link between that event in early 2010 and the problems swirling around the chief almost two years later. He was not present at the meeting and merely relates what others told him. He fails to reveal the people who provided the details of his assertions.

The court cannot consider affidavits based on hearsay, so why was this document included in the filing? And why were there no affidavits from the people who actually attended the meeting?

It is hard not to suspect that it was placed there for another reason: To deflect attention from the town and direct suspicions elsewhere.

Intentional or not, it served that purpose. Reports have loosely connected documents to the assistant town manager’s affidavit to support a theory that Tillett and other officials were conspiring to retaliate against the chief.

A few bloggers have taken the conspiracy theory several steps farther, suggesting the implausible idea that the judge, the former town attorney, lawyers for the officers and the officers themselves are in it together.

This would require believing that all of these people are willing to risk reputations and careers, plus invest large amounts of time and money in a legal battle, just because two police officers confronted a judge’s son two years ago.

Another question: Why did the town choose to appeal the judge’s order concerning a personnel policy it claims it never intended to implement?

The town’s contention that the review panel investigating the police department was an independent body is also worth questioning.

According to a statement from the town disclosing the investigation, the review panel was put together with the assistance of the League of Municipalities.

Kill Devil Hills counsel informed the Voice the league did not conduct the review. When pressed on who organized the panel and paid for it, and what the panel’s marching orders were, the attorney said he could not provide that information.

We posed the same questions to the town and asked whether the panel interviewed any of petitioning officers who were fired or forced to resign from the KDHPD.

We have not received responses to those queries, either.

While it is easy to stipulate that an investigation from the District Attorney would be considered independent, any panel paid for and assembled by the town or its legal counsel would be difficult to classify as an arms-length review.

It has also been reported this “independent” panel found no merit in the officers’ complaints. Yet among the recommendations outlined in the policy change that the town says did not exist, most appear to advise action in areas central to the officer’s petitions.

The officers maintained that negative information was contained in their files without their knowledge. The recommendations of the panel state: “The official file shall contain all original documents as required . . . this must include all warnings when they are issued.”

The petitions allege the chief kept his own set of files that differed from the official human resource files. Again, the panel recommended: “There are to be mirrored copies when desired and located in the police department that have been properly filed in the Official Personnel File.”

Even the much maligned quota allegations were addressed by the panel: “No use of minimum individual arrest, citations or general enforcement duties will be used as a tool in performance evaluations.”

In lieu of the recommended changes, it is difficult to dismiss the officers’ allegations as without merit.

The town also made the panel’s findings a part of the chief’s personnel file, essentially shielding it from the public and media.

All of which leads to the “smoking gun.”

When the District Attorney informed the court of his intent to remove Britt, personnel files were ordered delivered to the court because those files comprised a major portion of the petitioner’s allegations cited as reasons to remove the chief.

Copies were made of those files and the originals returned.

It seems to us those files are crucial and would easily resolve the primary question surrounding the allegations.

The files either vindicate the officer’s allegations of falsification or they exonerate the chief.

Now the town’s lawyers are trying to get the copies back.

Is it possible to appoint a truly independent panel to compare the files in possession of the court with the official files maintained in the town’s human resources department?

What is now a quite complex issue might be settled once and for all if the contents of those files could see the light of day.

Researched and written by Russ Lay and Rob Morris.

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