Former resident could face charges in helicopter crash

By Abby Morris
Star Staff
amorris@starhq.com

   LOUISBURG, N.C. -- A former Carter County, Tenn., resident could face charges in connection with a May helicopter crash that killed a Franklin County, N.C., sheriff's deputy.
   The two men were flying a helicopter reportedly owned by an Elizabethton, Tenn.,-based nonprofit organization to assist law enforcement officers on the ground in a marijuana eradication operation.
   Ben Barrick, who is a former Carter County resident, was piloting the helicopter in Franklin County, N.C., at the time of the crash, which injured him and killed FCSD Deputy Ted Horton, according to a spokesperson with the Federal Aviation Administration.
   Kathleen Bergen with the FAA said an investigation into the crash is still ongoing, and Barrick could face possible charges in the incident because the FAA can find no evidence that Barrick has ever had a pilot's certificate.
   "The FAA is looking not only into the accident, but into the type of operation that was being flown," Bergen said. "If this was in fact a public use operation, a pilot's certificate was not required."
   According to FAA regulations, a public use flight is one operated by a government entity in matters related to that organization. If the flight is determined to be a public flight, then a pilot's certificate is not necessary; however, a pilot's certificate is necessary for private flights.
   The FAA is not the only group investigating the accident. The Board of Franklin County Commissioners has asked that County Attorney Darnell Batton look into the crash to determine what the County and Sheriff's Department's liability are in the crash and whether or not the two officers were considered to be on duty at the time.
   Batton released a preliminary report to the county on May 31 and had turned up the contract between Franklin County Sheriff Jerry Jones and NETSTAR, which Jones had denied existed. Members of the Board of Franklin County Commissioners are now questioning the legality of that contract since it was not approved by the board or the county's Finance Department as required by North Carolina state law.
   According to Batton's report, during the course of the investigation, the existence of an agreement between NETSTAR and Jones was discovered which had been signed by both Jones and Barrick, who signed the contract as "President" of NETSTAR and described himself as Chief of Flight Operations for the nonprofit organization.
   "The sheriff of Franklin County has always vehemently maintained until the lease/purchase agreement was discovered by the FAA Inspector (retrieved from Barrick), that there were no written agreements relative to the NETSTAR program. The assertions had been made by the sheriff to all concerned including the FAA inspectors, county officials and the media," Batton says in his report. "Deputy Ben Barrick, up until the time of the crash, had always maintained that Nester's operations were based only on a verbal agreement only. While Deputy Barrick continues to acknowledge that NETSTAR Air Rescue is the owner of the helicopter and that he was the operator of the helicopter, he now maintains that a lease on the helicopter by the county exists and that Franklin County was to purchase the helicopter and upon full payment by the county, ownership would have been transferred to the county."
   According to Batton's report, the Franklin County Sheriff's Department entered into the agreement with NETSTAR in an attempt to start a helicopter program for the department to use in search and rescue operations, drug eradication and other emergency situations.
   "The purported lease/purchase agreement also includes language to the effect that the Sheriff's Office would protect NETSTAR Air Rescue, Inc., and hold it harmless against all claims and liability arising from the use of the helicopter, including the event of the crash," Batton's report says.
   The report also states that while Barrick, Horton and Jones were working on an agreement for the use of the helicopter to begin a helicopter program for the Sheriff's Department, Barrick was hired as a deputy with the department on March 15 and his application for employment noted that he was recruited through the helicopter program.
   The Franklin Times reported on April 14 that a deal had been struck between Jones and NETSTAR and that, as part of that deal, Jones hired Barrick as a deputy with his department and that use of the helicopter was on a volunteer basis as part of a verbal agreement. "The newspaper article further quotes the sheriff as follows: 'It's kind of ... like hiring a cowboy, if he's got a horse and we need it, he'll help us,'" the report by Batton states.
   Following the publication of the article by the Franklin Times, an immediate meeting was called between the interim County Manager Charles Murray, Batton and Jones, according to the report by Batton. "The three met on the morning of April 14, 2004, and the description offered by the sheriff at that meeting of the NETSTAR relationship was consistent with the report of the Franklin Times. The sheriff reiterated that the relationship with NETSTAR was based only upon a verbal agreement. At the meeting, the county manager and the county attorney spoke of the dangers and risks associated with a helicopter program and outlined a course of action to the sheriff, which included the concurrence by the board of commissioners with a helicopter program (there had not previously been board commissioner support for a funded county helicopter program); a full inquiry into the NETSTAR organization and Barrick; the development of a written agreement, whereby NETSTAR assumed all liability for its operation and holds the county harmless, including the naming of Franklin County as an additional insured on all insurance policies covering all aspects of the NETSTAR Program; and finally a detailed written policy outlining the volunteer/duty status of all county personnel involved in the NETSTAR Program, including Barrick," states the report. "Specifically, concern was expressed with Barrick's report in the newspaper account that if he was otherwise on duty during his scheduled shift, he would be paid while he flew the helicopter. The sheriff clearly understood that deputies being on duty while in the helicopter could be a real problem for the county, and the sheriff stated that Barrick was wrong."
   According to the report, Jones insisted that he had expressed to Barrick and Horton as well as other officers involved in the NETSTAR program that their participation in the helicopter program was on a volunteer basis and that they were not acting as members of the Franklin County Sheriff's Department while they were on helicopter operations. Jones also assured Batton and Murray that the helicopter would be used in no capacity whatsoever, either directly or indirectly, until all of the county's concerns had been addressed.
   In the time between that meeting between Jones, Murray and Batton, and the time of the helicopter crash on the afternoon of May 14, the helicopter flew on three separate missions for the Sheriff's Department.
   On the afternoon of the crash, according to the report, Barrick and Horton had been working as aerial spotters for narcotics officers on the ground looking for marijuana plants. Shortly after 1 p.m. that day, Horton spotted some plants which appeared to be marijuana. He and Barrick notified ground officers of the location and then landed the helicopter to assist the ground officers. A total of 256 marijuana plants were collected from that location.
   Barrick and Horton then flew to another location where marijuana plants were reportedly growing, but after five sweeps of the area, they were advised by the lead narcotics officer on the ground to "call it a day" and they turned the helicopter toward the airport. "While en route back to the airport and approximately 1.9 miles northwest of the Franklin County Sheriff's Office, the pilot lost control of the tail rotor due to a part failure on the tail boom, and the helicopter crashed in a wooded ..." states Batton's report. "As a result of the helicopter crash, Deputy Ted Horton, the passenger, suffered fatal injuries from massive head trauma to the abdomen and chest wall and Deputy Benjamin Barrick, the pilot, according to him, suffered multiple fractures of the vertebrae, a bruised hip and minor nicks and cuts."
   Questions have also arisen about whether or not the helicopter was certified as airworthy and was in proper operational condition before the flight on May 14.
   As the conclusion of his preliminary investigation into the crash and the relationship between the Franklin County Sheriff's Department and NETSTAR, Batton determined that Franklin County may be held liable for the crash. "Based on this preliminary investigation, it appears that a fair interpretation of the acts, giving full weight to the statements and positions taken by Sheriff Jones, could lead to the conclusion that Deputy Ted Horton and Deputy Ben Barrick, at the time of the helicopter crash, were operating the helicopter while in the line of duty under implicit orders by the sheriff of Franklin County," states the report by Batton. "Both officers were performing functions directly for the benefit of their employer. Both were uniformed, armed and otherwise appeared to be acting within the course and scope of their employment. Based on all facts gathered, it appears both officer's injuries, including Deputy Horton's fatal injuries, arose from their employment with the Franklin County Sheriff's Department."
   According to Batton's report, Barrick told Jones and other Franklin County officials that NETSTAR Air Rescue is based out of the Elizabethton, Tenn., Municipal Airport. Elizabethton Municipal Airport officials told the Star on Monday that NETSTAR is not based there.
   A Wake Forest, N.C., newspaper reported on June 3, that the nonprofit NETSTAR organization had dissolved since the crash and had not been registered with the state of North Carolina as a nonprofit organization.
   Barrick is reported to be on medical leave, but is still employed by the Sheriff's Department.
   A public listing for Barrick could not be found either in Franklin County, N.C., or in Carter County, Tenn. A public listing for NETSTAR also was not located in either state.