Wednesday, August 27, 2003

Secret police? County unwraps a 20-year-old stealth whopper

By CAL BEVERLY
editor@thecitizennews.com

Did you know that Fayette County has its own police force? A stealth force that has been operating under another name for 20 years?

No, I don't mean the Fayette County Sheriff's Department. They're totally out in the open and are doing an outstanding job keeping Fayette patrolled and relatively crime-free.

"Our predecessors publicly created a county police department (the Marshal's Office) over 20 years ago," County Commission Chairman Greg Dunn wrote Friday. "This legally established county police department has been in continuous operation since 1983."

Well, gaw-a-lee, Andy, as Gomer would have said to Mayberry's sheriff. That's big news to me, and I was there when they wrote the ordinance 20 years ago, reporting on it as an administrative function intended to help serve summons and tell zoning violators to do better.

"Calling it the Marshal's Office helped to eliminate confusion," Dunn wrote to Fayette County Sheriff Randall Johnson, "but in no way changed the status of the office conferred upon it by complying with the provisions of this particular code section."

Well, that would have been major front-page news throughout the 1980s had that been what was sold to the public. In July 1989 the county commission gave "the county marshal" police powers, including the power of arrest.

But again, nobody called it a county police department. If that name had been used county police the Sheriff's Department would have gone nuclear and the voters of the time would have risen up and thrown all the rascals out of office.

The 1983 commission just wanted county ordinances enforced. From 1983 until 1989, county marshals had neither guns nor badges. They were weaponless and badgeless. Does that sound like police to you? Neither did it to the commission of the time.

Forward to 1989. According to former Commissioner Dan Lakly, the commission responded to problems at some county facilities with after-hours trespassers. They feared an armed intruder would threaten an unarmed marshal, and thus gave the marshals guns and badges for the limited purpose of patrolling county-owned facilities and land.

Lakly said emphatically that not one member of that commission ever even thought about creating a police force. Lakly noted that then-Commissioner Rick Price voted against even arming the marshals, arguing that it was a duplication of services already provided by the sheriff's department.

Former County Administrator Billy Beckett, who came on board in 1985, also remembers that at no time in subsequent years did he or the county consider the marshal's office as a police force.

Nobody wanted a county police force, and nobody thought that's what they were getting.

Nobody, apparently, except the county attorney who wrote both the 1983 and the 1989 ordinances. That same county attorney is still giving advice to a new crop of county commissioners, and they're still buying what he's selling.

The problem is, nobody never sold that bill of goods to the public. Under current state law, it would take a voter referendum to establish a new county police force from scratch. No such vote was ever held.

And now, the current county commission is suddenly unveiling a well-hidden secret in a showdown with Sheriff Johnson, as straight-arrow a lawman as this state has produced.

Hearing reports that the marshals were being rebadged as "deputy marshals" under the command of the new administrative umbrella of the Public Safety Department, the sheriff raised questions about whether the county marshals' force is properly making arrests on the highways for traffic violations. The sheriff quotes both state law and an attorney general's opinion supporting his contention that the marshals have no general arrest powers, although, as we exclusively reported last week, the marshals are out on the roads making arrests.

The texts of Johnson's, Dunn's and the attorney general's letters are on Page 6A of this issue and on our web site.

In a nutshell, the sheriff says the county never created a police department and that its marshals shouldn't be acting like county cops.

Dunn, a retired officer who spent much of his career in military law enforcement, disagrees strongly. Dunn says the sheriff is relying on a misreading of the applicable laws.

Dunn told me he and the other commissioners did nothing to create this police force, and he emphasized that they have not expanded it. Nor do they intend to expand much beyond the nine marshals now in uniform.

"We don't even have enough marshals to have two shifts," Dunn said Monday. He argued that neither he nor any of the other commissioners intend to expand the marshals' patrol responsibilities. But he did make one thing clear.

"I can't ask these certified police officers to look the other way if in the course of their duties they see someone endangering the public safety or breaking the law," Dunn said. He asked what the taxpaying public would think if they knew a marshal in the course of driving from one county property to another had observed a drunk driver but ignored the violation of state law and let him pass, only to have a fatal wreck occur a few minutes later involving that same drunk driver.

Dunn said that whatever the intent of the earlier commissioners, they had used the proper state law to create a county police force, no matter what they called it. Once created, Dunn said, the county police force is a done deal. It may become known as a Dunn deal, since almost no one until now had ever imagined the county had its own official police force.

Dunn said an attorney general's opinion in 1995 in a case involving the Forsyth County Commission and its attempt to turn a marshal's office into a county police force without going through the state-mandated local referendum was irrelevant to the Fayette situation. Because the Fayette marshals were created using the state law setting up a county police force, Dunn argues, their title marshal or police officer or whatever is unimportant.

Either way, Dunn said the sheriff's department does a great job and he wishes he and the sheriff could sit down and make this go away.

Here's my take on the controversy. According to the attorney general's opinion, a rose by any other name is not as sweet, or as legal. Read it for yourself.

If at any time any elected official meant to create a county police force, that official lied to the public by omission and sold the voters a pig in a poke by naming the department something that it wasn't.

Why would both commissions knowingly take the stealthy, misleading road? Sure, they were politicians, and they knew full well they could not get away with the outright creation of a parallel police department, a redundant patrol force, in a county where the sheriff was so popular and was doing such a good job of deterring and catching the bad guys.

But did they really knowingly lie to the public by creating something that nobody knew about? I don't think so. If somebody was trying to pull the wool over the public's eyes, I don't think it was the commissioners of the time. I think they were as misled as the rest of the public about what was intended. And is the current commission being similarly misled?

I read the law and the AG's opinion the same way the sheriff does. I think that the current marshals' setup is under a cloud. I think it will take a court ruling before the cloud can be partially cleared.

The shadow that remains, however, is a legacy of deceit, a defrauding of the taxpaying public, whoever is responsible. It was a smoke-and-mirrors ordinance that fooled just about everybody for 20 years, and the one who wrote it is still getting paid with your county tax dollars, still advising the current county commission on what ordinances should be passed and what can be passed.

And if the current county board fails to submit the decision about a county police force to the voters for taxpayer approval as required by state law since 1992, then this current board, by default, will be ratifying and adopting as their own responsibility the deceptive political practices of the past.