More officers leave SBPD as council reacts to FOIA complaint


Two more officers will soon part ways with the South Bethany Police Department. As of Friday, March 1, both Sgt. Alfred “Lee” Davis and Officer (Ptlm.) Nate Hudson had given their two weeks’ notice.

At this point, the SBPD will start springtime with two certified officers: Police Chief Troy Crowson and Cpl. Patrick Wiley, until new hires are fully trained later this year.

“Police officers, like all employees in Delaware, are employees at will, in the sense that they are free to resign their positions whenever they deem appropriate, and this can happen for a number of reasons,” Mayor Tim Saxton told the Coastal Point. 

“As to Officer Hudson, it was known for some time that he was in discussions with Fenwick Island. The Town hoped he would stay; however, he chose to take a position with our neighboring municipality, and the Town wishes him all the best in the future,” Saxton continued.

“As to Sgt. Davis, he has chosen this point in time to put in for retirement. The timing of his retirement is his personal choice. He has 28 years of service, a fully-vested pension, and has been free to retire at a time of his choosing, for some time. We thank him for his service to the Town.”

At this point, nearly the entire department has left in the space of about a year. Until February of 2018, the department had six officer positions and a chief. Then, officers left in February, May and September, followed by two more this month. The town council had decided not to fill one position, reducing the maximum number of staff to five officers.

Unless an already-Delaware-certified officer joins the force soon, the SBPD won’t get fresh blood for several months. Last year, there were few eligible applicants, and fewer that met with the town council’s approval.

They just recently agreed to send two recruits to the police academy (six months’ training, plus several months’ supervised field training) and hire an officer from outside the state who will need Delaware certification, plus field training.

Each summer, the SBPD also seeks a part-time officer, which can be tough, because many departments don’t allow moonlighting in other jurisdictions. They’ll also seek two full-time enforcement officers who don’t have arrest powers, but who can respond to complaints or do parking enforcement.

Until then, short staffing leads to other concerns. There is less time for community policing and proactive highway patrols. The chief isn’t applying for grants because he doesn’t have the staff to meet grant requirements, such as overtime hours for distracted-driving enforcement.

“The Town is looking forward to a fully-staffed department of South Bethany officers in the near future, and residents and visitors can rest assured that — along with our seasonal officers and assistance as needed from other jurisdictions — the Town will be ready to provide all necessary police services this summer,” said Saxton, who didn’t comment on additional plans for the future.

In 2017, all of the SBPD officers, except the police chief, had signed a demand letter to the Town, alleging they had not been paid or promoted as they should be. Around the same time, two consulting firms were studying police policies, procedures and pay. Some items were deemed to need more clarity, consistency and improvement.

In 2018, the town council adopted a relatively barebones rank structure. The continued unrest, lack of new pay scale and seeming lack of advancement opportunities didn’t appeal to existing and potential employees, Crowson had said.

In February 2019, the town council set a course forward by implementing a broader rank and pay scale. Administrators just have to decide how to fit existing employees onto the new scale fairly. (The 2019-2020 budget has money for employee raises in all departments, not just the police.)

Despite that, two officers decided to move on.

 

AG scolds, but doesn’t find ongoing violations

 

At the same time, Delaware’s Office of the Attorney General was responding to questions about the town government’s transparency.

In a Feb. 25 letter, the AG’s Office responded to a property owner’s assertions that South Bethany had violated the open-meeting requirements of the Delaware Freedom of Information Act (FOIA).

Although the existence of such a FOIA petition highlights ongoing concern from some members of the public that the town council hasn’t been forthcoming about their intent, the Town this week offered no additional comments for those members of the public who are concerned about transparency. Saxton only stated that the AG’s opinion “makes no such conclusions” about lack of transparency.

Although property owner Billy Bonbright alleged in a Feb. 5 letter that South Bethany had violated FOIA’s open-meeting rules on several occasions dating back to April 12, 2017, the AG only investigates claims within the last six months.

Bonbright alleged that the Town held improper executive sessions on Nov. 8, 2018, and Jan. 29, 2019, to discuss outside of public view the department of public safety and police chief. The agendas for those two meetings state that executive sessions were held for strategy sessions regarding pending or potential litigation, as well as involving documents that are exempt from public record.

The AG said that, on Nov. 8, two matters of potential litigation were discussed during executive session: “We find that the town has not met its burden of demonstrating that potential litigation was properly asserted for either of matter, as one matter is characterized by the town as involving potential litigation based on a ‘rumor’ and the second matter likewise lacks any objective indicia what is realistic and tangible threats of litigation. … For the first matter, rumored to involve potential litigation, we recommend that the town schedule this topic for discussion at a future open session.”

However, discussion of that topic was continued at the Jan. 29 executive session, which the AG said was then was appropriate, because “the potential litigation was a realistic and tangible threat, and the tone provided sufficient facts to conclude that having these discussions in a public forum would have an adverse effect on its litigation positions.”

The second matter regarding the session on Nov. 8 was a technicality that the AG’s Office said should have been labeled “personnel” instead of “potential litigation,” stating in their findings, “we caution the Town to comply with stating the proper purpose of every executive session on its agenda in the future.”

Town officials said they only disagreed on a technicality. They believed the AG’s Office was “unduly focused on rumors of litigation against the Town which, the Town conceded, was a minor issue in comparison to the topic of administrative litigation against an employee which might need to be initiated by the Town,” Saxton said.

“For that issue, there was a tangible and realistic probability as early as November 2018,” he said. “This was the same topic which the AG’s office found to constitute proper grounds for executive session at the January meeting.”

“The Town sees no need to re-notice any meetings on the subject of ‘threats of litigation against the Town,’” Saxton said, “as these rumors, fueled in part by Chief Crowson — that some police officer might attempt to take legal action against the Town on pay and benefits issues — have long been a well-known subject of discussion. The Town believes there would be no grounds for such action by an officer, particularly since the recent adoption of the generous pay and rank plan.”

Since 2017, some in the town have said they feared that the town council is trying to dismantle the police department — either by outsourcing police work (which has not happened) or weakening the internal structures to drive officers away.

Bonbright still questioned the veracity of the Town’s assertion that there was no discussion of public safety or restricting resources of the police department.

To prove their case, the Town sent redacted copies of their executive session minutes, and allowed the AG’s Office to view some unredacted documents.

Town councils, school boards and other public bodies are only allowed to have private discussions in executive session for specific reasons, often relating to privacy, safety or legal matters. But any resulting decisions, votes or actions must be done by public vote.

Delaware Code, Title 29, law allows for private discussions involving “strategy sessions, including those involving legal advice … with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body” and “personal matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open.”

Bonbright also complained of the vagueness of the town council’s actions on Jan. 29. After the executive session, they voted publically to “proceed with administrative and legal actions that were just discussed in executive session.”

But the State does permit that kind of maneuver — since the vote was public, since the executive session minutes make clear the topic at hand and since there is clear understanding who voted.

“We are pleased that the AG’s office agreed, with one technical exception, that the Town’s actions and reasons for executive sessions were proper,” Saxton said.

Delaware’s AG is Kathleen Jennings. The document was signed by Deputy AG Dorey Cole, with approval by state solicitor Allison Reardon.

Bonbright and about six other people have loosely organized to support the SBPD and push for resolutions to what appears to be ongoing friction between the police department and town council. They recently suggested creation of a town Department of Public Safety Ad Hoc Committee.

The town council’s next regular meeting will be Friday, March 8, at 6 p.m., preceded at 5 p.m.by a public presentation of the 2020-fiscal-year draft budget.

 

By Laura Walter

Staff Reporter