The opinion
Berger v. New Hanover Cnty. Bd. of Comm’rs, 2013 NCBC 45.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF NEW HANOVER 13 CVS 1942
BRIAN BERGER, )
)
Plaintiff, )
)
v. )
) ORDER
NEW HANOVER COUNTY BOARD )
OF COMMISSIONERS, )
)
Defendant. )
)
{1} THIS MATTER is before the court for a review of the action by the
New Hanover County Board of Commissioners in removing Commissioner Brian
Berger from his elected office.
Anglin Law Firm, PLLC by Christopher J. Anglin for Plaintiff.
Ward and Smith, P.A. by John M. Martin and Michael J. Parrish for
Defendant.
Gale, Judge.
I. PROCEDURAL HISTORY
{2} Plaintiff Brian Berger (“Berger”) was elected to serve a four-year term
on the Defendant New Hanover County Board of Commissioners (“Board”) to expire
in December 2014.
{3} On April 22, 2013, the Board adopted a Petition in Amotion to Remove
Brian Berger from the New Hanover County Board of Commissioners (“Petition”)
together with its several attachments, as well as a Notice of Hearing and set of
Amotion Hearing Rules and Procedure (“Revised Hearing Rules”). These were
served on Plaintiff on April 23, 2013 by the New Hanover County Sheriff.
{4} Berger filed his original Complaint and an Application for Temporary
Restraining Order and Preliminary Injunction (“TRO application”), both dated May
15, 2013. Civil Summons was issued on May 16, 2013.
{5} On May 16, 2013, Chief Justice Sarah Parker issued an Order
designating the matter as exceptional pursuant to Rule 2.1 of the General Rules of
Practice for the Superior and District Courts and assigning the case to the
undersigned.
{6} The court held a telephone hearing on Plaintiff’s TRO application on
Friday, May 17, 2013 and then entered an Order Denying Plaintiff’s Motion for
Temporary Restraining Order on Monday, May 20, 2013, following earlier advices
the court provided counsel by e-mail on Saturday, May 18, 2013.
{7} The Board held the noticed hearing on May 20, 2013 at which it
determined by a majority 3–2 vote to remove Plaintiff from office. The Board issued
its written order on May 21, 2013 (“Order of Removal”). During the hearing on
Plaintiff’s motion for a TRO, the Board’s counsel indicated that the Board Chairman
would recommend that, in the event of removal, Plaintiff’s salary and benefits
would not be suspended at least for 30 days. The Order of Removal includes such a
provision, with salary and benefits continuing to June 30, 2013.
{8} Plaintiff filed his Amended Complaint and his Motion for Stay Pending
Lawsuit (“Motion for Stay”), on June 14, 2013, seeking to remain in office pending
court review of the Board’s action. The court held a telephone conference on June
17, 2013 and entered an Order on June 19, 2013, denying a stay, incorporating the
Board’s agreement that it would not fill any vacancy pending the court’s review,
setting the matter for hearing on July 16, 2013 on specifically identified legal
issues, and providing a schedule for prehearing briefs.
{9} The court held the hearing on July 16, 2013. The Parties agreed that
this court has authority to review the Board’s decision by certiorari, and the court
proceeded to hear oral argument on legal issues raised by the Amended Complaint.
The court further afforded the Parties the opportunity to file supplemental briefs to
address other due process issues first raised in Plaintiff’s July 14, 2013
Memorandum as well as their respective arguments on whether the record contains
sufficient competent evidence to support the Board’s finding. The court reserved its
ruling on all issues pending final briefs which were due on August 29, 2013.
{10} On August 16, 2013, the Board filed a Motion for Protective Order
necessitated by Plaintiff’s effort to depose Commissioners Wolfe and Dawson to
obtain additional testimony for the court’s consideration. The court held a
telephone hearing at which it indicated it would grant a protective order because
the court’s review is limited to the record before the Board, and confirmed this oral
ruling by an Order entered on August 20, 2013.
{11} Final briefs were timely filed on August 29, 2013. Neither Party has
requested further oral argument. The record has been submitted, the court has
reviewed both written and video transcripts, and the issues have been fully briefed,
argued, and submitted. The matter is ripe for final ruling.
II. SUMMARY OF PROCEEDINGS BEFORE THE BOARD
{12} The court here summarizes the proceeding before the Board only to the
extent necessary to inform the court’s review of issues raised by the Amended
Complaint as elaborated upon in the briefs. Other details may have been omitted
and are available for review in the written and video transcripts.
{13} Berger was elected in November 2010 to serve a term on the Board to
begin in December 2010 and expire in December 2014. The Board determined in or
around April 2013 to initiate proceedings to determine whether Berger should be
removed from the Board. The record is not entirely clear as to the extent to which
the Board further considered seeking local legislation to authorize a recall election.
{14} The Board elected to use the common law procedure known as
“amotion.” On April 8, 2013, the Board directed the County Attorney to prepare the
Petition to initiate the amotion proceedings.
{15} On April 22, 2013, the Board approved the Petition which included 28
exhibits and three affidavits attesting to the exhibits, as well as the Revised
Hearing Rules and a Notice of Hearing. These materials were served on Plaintiff by
the Sheriff on April 23, 2013.
{16} Omitting some specific details, the Petition alleges, in sum, that
Plaintiff had violated the Board’s Code of Ethics, had created a hostile work
environment, had created concerns for safety and security, had failed to adequately
discharge the duties of his office, in part because of his tardiness and failures to
participate meaningfully in policy decisions, suffers from a deteriorated mental
awareness, makes unsupported accusations, and has suffered a loss of confidence by
the Board and citizens. The various exhibits related, among other things, to
fourteen delineated acts of alleged criminal acts or domestic violence, and thirteen
selected e-mails deemed to be in violation of the New Hanover County Information
Technology policy and which the Board contends reflects harassment of county staff.
{17} The Revised Hearing Rules provide that Plaintiff would be allowed to
have counsel, that the Petition and its attachments would be considered for
admission into evidence, that Plaintiff would be allowed to present evidence and
testimony, and to make closing statements. Plaintiff did retain counsel who
represented him at the Amotion Hearing. Although the Revised Hearing Rules
reserved the possibility of imposing time limits for evidence or argument, no such
limits were actually imposed. Plaintiff filed a witness list before the hearing,
including twenty-one potential witnesses, four of which were other Commissioners.
{18} At the hearing on May 20, 2013, prior to beginning any evidentiary
presentations, Board Chairman White stated that each of the five Commissioners,
were present, but that only Plaintiff would be allowed to testify, because the other
Commissioners were to serve as “triers of fact.” (Amotion Hr’g Tr. (hereinafter
(“Tr.”) 11:9–15.) Plaintiff’s counsel then made no request and took no further action
to demand the right to examine any of the four Commissioners as to their potential
bias in the nature of having made their determination before the presentation of
evidence. At no time during the hearing did Plaintiff ask that the Commissioners
be placed under oath or tender testimony that he believed they would provide had
they been called as witnesses.
{19} Also prior to any evidentiary presentation, Commissioner Barfield
stated his belief that the Board should have pursued legislation authorizing a recall
election rather than using the amotion procedure, as his concept of democracy was
that only voters should exercise power to remove an elected Board member. He
further expressed his concern that, “the decision has already been made.” (Tr. 15:5–
16:18.) He did not further elaborate as to the specific factual basis for this concern.
{20} The Board then began the evidentiary presentations by accepting the
Amotion Petition and each of the 28 exhibits and three affidavits over Plaintiff’s
objection that the North Carolina Rules of Evidence (“Rules of Evidence”) should be
applied. (Tr. 12:1–12, 17:2–18:2.) The Board further accepted two additional
affidavits which had not been included with the Petition. Plaintiff made no specific
objection to these affidavits other than their admissibility under the Rules of
Evidence. (Tr. 9:2–10.) In indicating that the Board would not apply the Rules of
Evidence, Board Chairman White advised that Plaintiff would be allowed to
challenge the weight to be given any of the exhibits. (Tr. 9:2–10, 12:2–4.) He later
advised Plaintiff that he would also be allowed freely to introduce materials without
complying with the Rules of Evidence. (Tr. 40:21–41:12.)
{21} Board Chairman White stated the Board’s conclusion that the Petition
and supporting materials satisfied the Board’s burden of proof and invited Plaintiff
to present evidence. (Tr. 19:4–8.) After again challenging the Board’s acceptance of
the Petition and documents without a testifying witness, Plaintiff began his
evidentiary presentation, which included two witnesses and a notebook of
documents. Plaintiff himself further made a statement after the evidence was
closed, but, as did other Commissioners made his statement during discussion of
the formal motion while not under oath.
{22} Plaintiff first called Sheila Schult, Clerk to the Board. (Tr. 21:3–4.)
In his initial examination, Plaintiff sought to challenge any conclusion that Plaintiff
improperly incurred travel expenses, including for example a failure to timely
check-in on the first night of a multi-night hotel stay (Tr. 23:20–24:5), to rebut the
assertion that the various allegations of criminal conduct should be considered
because there was no evidence of an actual conviction (Tr. 25:5–10), and to
challenge the accuracy of the number of reported times that Plaintiff had been tardy
for Board meetings. (Tr. 26:4–40:20.) Plaintiff further established that the travel
policy referred to in the Petition had been actually adopted after Plaintiff incurred
the expense for the missed reservation. (Tr. 41:14–42:6.)
{23} Plaintiff’s counsel also examined Ms. Schult regarding the series of e-
mails attached to the Petition. She responded affirmatively when asked if she
thought the e-mails evidenced harassment. (Tr. 43:8–44:15.) Plaintiff secured her
agreement that Plaintiff had not threatened her physically. (Tr. 43:22–48:20.) As
to the Petition’s allegation regarding Plaintiff’s improper access to county offices,
Ms. Schult acknowledged that there is no written policy that would prohibit a
Commissioner from using his office 24 hours a day. (Tr. 48:21–49:11.)
{24} Board counsel’s examination concentrated on the limited errors in
attendance records so that the records nevertheless demonstrate a large number of
times Plaintiff was tardy even after adjusting for any errors that Plaintiff had
noted. (Tr. 49:21–53:1.)
{25} Plaintiff next called Carolyn Bordeaux. (Tr. 58:15–16.) He first
solicited Ms. Bordeaux’s view that Plaintiff had not been convicted of any crime and
that DWI charges against him were pending. (Tr. 59:22–60:8.) He then began a
course of examination to challenge “the impartiality of this … [B]oard.” (Tr. 64:3–
5.) In substance, Plaintiff contended that bias was demonstrated because of a
conversation Board Chairman White had after learning that Plaintiff intended to
seek an order enjoining the May 20, 2013 hearing without first providing the Board
notice. After learning from court officials that this request was being made, Board
Chairman White advised Senior Resident Superior Court Judge Cobb that the
Board wished to participate if any hearing on a request for injunction were to be
held. (Tr. 65:21–70:13.) Ms. Bordeaux had been directed by Plaintiff’s counsel to
file the original Complaint and application of a Temporary Restraining Order,
although she is not employed by Plaintiff’s counsel. In doing so, Ms. Bordeaux met
with Judge Cobb. (Tr. 60:18–68:4.) At the hearing, during the course of Ms.
Bordeaux’s testimony, Plaintiff’s counsel admitted that he had requested an ex
parte order and expressed his view that he was not obligated to attempt to provide
notice to the Board before seeking a restraining order. (Tr. 64:6–66:7.) Plaintiff’s
counsel directly inquired of Board Chairman White whether he made statements to
Judge Cobb, in response to which Board Chairman White indicated that he had
advised Judge Cobb that the Amotion Hearing might be postponed if there were
indications that Plaintiff was seeking assistance with regard to the Board’s
concerns as to his mental health status (Tr. 67:2–12.), but that he had not discussed
the merits of the Petition. (Tr. 67:17–71:19.) Plaintiff did not request to place
Board Chairman White under oath or to examine him further on his allegation of
bias.
{26} Judge Cobb, as well as the other Resident New Hanover County
Superior Court judges have recused themselves from participation in the case. (Tr.
71:11–19.) They have had no further participation in the matter and the
undersigned has had no communications with them about the matter.
{27} In his continued examination of Ms. Bordeaux, Plaintiff solicited
testimony that she had never felt threatened by Berger, that she was not aware of
his having threatened anyone else, and that he suffers from autism. Plaintiff did
not seek to qualify Ms. Bordeaux has having any training in regard to autism, nor
did her testimony indicate any basis upon which she based her conclusion.
Plaintiff’s counsel further solicited her opinion that the effects of autism include an
inability to communicate and that communications by one suffering from autism
may be mistaken for threats. (Tr. 72:15–74:10.)
{28} After Ms. Bordeaux’s testimony was completed, Plaintiff’s counsel
indicated that Plaintiff would not testify and no further witnesses would be called.
(Tr. 76:10–77:3.) Board Chairman White then indicated that Plaintiff would be
allowed an opening and closing argument. (Tr. 77:8–23.)
{29} In his initial argument, Plaintiff’s counsel argued that the evidence
regarding Berger’s criminal matters cannot serve the basis for a removal because
there has been no conviction, the criminal charges do not include felonies, and none
of the charges relate to an “infamous crime” that might reflect an inability to serve
as a Commissioner. (Tr. 78:2–82:12.) He then argued that there was no competent
evidence by licensed professionals of any mental limitations that Plaintiff may have,
and the Petition relied only on generalized allegations of mental incapacity. (Tr.
83:4–21.) Plaintiff’s counsel asserted the insufficiency of the various categories of
other evidence to prove a failure to complete job duties, to abide by established
policies, or to create a hostile environment. (Tr. 83:22–92:16.) He again noted his
objection that the exhibits to the Petition had been accepted without an adequate
opportunity to respond. (Tr. 93:9–16.) Upon inquiry from Board Chairman White,
Plaintiff’s counsel acknowledged that no limitation had been made on his ability to
subpoena witnesses or to introduce evidence other than limitations imposed on his
right to examine fellow Commissioners. (Tr. 94:9–23.)
{30} Board Chairman White offered to reopen the evidentiary record to
allow Plaintiff to call additional witnesses. Plaintiff’s counsel responded, “Well,
unless I am given an opportunity to – to question any of the other Commissioners.
That is where the – then I have no other witnesses that I would call at this time.”
(Tr. 94:20–23.) This was the strongest statement Plaintiff ever made in opposition
to the limitation on other Commissioners testifying. However, Plaintiff again did
not seek to call any Commissioner and made no offer of what testimony he would
solicit if allowed to call them.
{31} Plaintiff’s counsel sought to tie the Board’s acceptance of the Petition
without a supporting witness to bias. He stated, “I question how this whole
proceeding can be fair when Mr. Berger -- when Mr. Ber - - when Mr. Berger even
though he has – we have been allowed to present evidence, there was no
opportunity to cross examine the documents and there was also no opportunity for
us to question any of the Commissioners who a lot - - who a lot - - who have a lot of
factual evidence about - - about this case and I guess at this point, any - - any
examination of any of the Commissioners will just occur - - will just possibly occur
on appeal.” (Tr. 102:2–12.) Plaintiff’s counsel closed his initial argument by
cautioning the other Commissioners that they should restrict their consideration to
the evidence presented and not consider any personal experience beyond that
evidence. (Tr. 109:5–22.)
{32} The Board’s attorney was then allowed to present a closing argument.
In significant part, her argument was limited to summarizing the evidence so as to
demonstrate its adequacy to prove Plaintiff’s unfitness for office and his lack of
capacity to perform as a functioning Board member. She placed the greatest
emphasis on evidence regarding a hostile work environment and other security and
safety concerns addressed in the Petition. (Tr. 110:11–121:16.)
{33} Plaintiff’s counsel was then allowed a final argument, during which
there was some discussion of Board Chairman White’s personal observation of
Plaintiff handing a letter to Governor McCrory and statements that Plaintiff had
made regarding this event on television and at a prior Board meeting. (Tr. 126:23–
127:10.)
{34} After arguments, the record was closed. (Tr. 129:5–9.) Commissioner
Wolfe made a formal motion to remove Plaintiff from the Board. Vice-Chairman
Dawson seconded the motion. The individual Commissioners then spoke as to their
positions.
{35} Speaking first, Vice-Chairman Dawson relayed that she had personal
experiences with Plaintiff but that the Board nevertheless had come to the hearing
“without any predetermined outcome hoping to learn new evidence.” (Tr. 130:23–
131:2.) She explained the basis of her concern for and personal commitment to
provide for safety and security and the responsibility to assure a safe work
environment. (Tr. 131:17–136:12.) She acknowledged Plaintiff’s counsel’s request
that she set aside personal issues. (Tr. 136:20–22.) She then recounted a personal
experience when Plaintiff falsely claimed that she would not work cooperatively
with him. (Tr. 137:3–17.) She expressed her wish that Plaintiff would resign and
seek help for his personal problems. (Tr. 138:19–23.)
{36} Plaintiff then spoke. He disclaimed any basis for anyone other than
himself having any concern for safety. He stated that he had been falsely accused
and that the amotion process had been engineered with the intent to put a
predetermined successor on the Board. He suggested that he had been given only
two or three days to prepare his defense. During Plaintiff’s statement, Board
Chairman White asked for specific facts to support Plaintiff’s allegations. (Tr.
139:17–149:10.)
{37} Commissioner Barfield spoke next. He again stated his view that the
amotion procedure is not a proper vehicle to remove an elected official, and
indicated that this is his view even though he personally wished that Plaintiff was
not on the Board. (Tr. 149:15–153:21.) He stated, “. . . I do not know what is in
other people’s hearts. I can only tell you what is in mine. I do not have the ability
to predict what is in someone’s heart but I can know from past conversations that in
my opinion, there was a foregone conclusion before we got here of what was going to
happen on this day. Be that as it may, as I said before, I am not in agreement of
this process but I am in agreement that Mr. Berger needs to step down off of this
board and continue life in some other form, shape or fashion.” (Tr. 153:12–21.)
Again, Commissioner Barfield did not further provide specific details that would
document that other Commissioners had made any final determination to remove
Plaintiff before the hearing was held.
{38} Commissioner Wolfe then spoke. Among other comments, he
explained that he did not believe that the evidence regarding tardiness and non-
compliance with policies and procedures was alone adequate to justify removal. (Tr.
154:9–17.) He expressed his greater concern that Plaintiff’s behavior represented a
safety threat. He related his personal experience in seeing “senior staff ladies cry in
fear.” (Tr. 154:18–22.) He further referenced that past efforts to remedy concerns
by censuring Plaintiff had not succeeded. (Tr. 155:20–156:7.)
{39} Board Chairman White spoke last. He indicated that he had
approached the hearing with an open mind and hope that Berger would respond to
the allegations with acknowledgment of problems and assurances that he was
securing treatment for them. But he concluded that there had been no effective
rebuttal to the facts stated in the Petition and that the Board’s concerns had not
been abated. (Tr. 156:8–157:20.) There was a brief exchange between Board
Chairman White and Plaintiff regarding the letter given to Governor McCrory. (Tr.
158:17–159:11.)
{40} Before the vote, Plaintiff’s counsel did not seek to examine any of the
Commissioners as to personal observations shared in their statements.
{41} Board Chairman White then called for a vote. (Tr. 160:19–21.) The
Board voted 3–2 in favor of removal. Commissioners White, Dawson, and Wolfe
voted in favor. Commissioners Barfield and Berger voted in opposition. (Tr.
160:19–161:10.) Board Chairman White then directed New Hanover County staff to
prepare Findings of Fact and Conclusions of Law. (Tr. 161:8–11.)
{42} Board Chairman White signed the Order of Removal on May 21, 2013.
Findings 1 through 5 detail the procedural history. Findings 6 through 10 are
findings adopting the factual allegations of the Petition with its supporting
documentation. Findings 11 through 14 state that Plaintiff was given a full and fair
hearing. Finding 15 records Commissioner Dawson’s personal observations.
Finding 16 records Commissioner Wolfe’s personal observations. Finding 17 records
Commissioner White’s statements as to his assessment of the evidence supported
the Petition and its supporting documentation. Findings 18 and 19 reflect the
Board’s view that it has an obligation to respond to the evidence presented.
Findings 20 and 21 indicate the Board’s view that it has the power to act. Based on
these findings, the Order of Removal then concludes that “there is sufficient
evidence for the Board to determine that just cause exist [sic] to remove Brian
Berger . . .” and then declared that Plaintiff was immediately removed but that no
action would be taken to fill the vacancy for thirty days, and that Plaintiff’s salary
and benefits would remain in effect until June 30, 2013.
{43} Further specific allegations or evidence will be discussed as necessary
in the following analysis.
III. STANDARD OF REVIEW AND THE ESSENTIAL QUESTIONS PRESENTED
{44} Plaintiff’s Amended Complaint seeks judicial review of a quasi-judicial
finding by a governing body from which there is no specific right of appeal provided
by law. That finding is reviewable in the nature of certiorari. Russ v. Board of
Education, 232 N.C. 128, 130, 59 S.E.2d 589, 591 (1950). Upon certiorari, the court
sits as an appellate court rather than an original trial court charged with the duty
of making its own findings of fact. Weaverville Partners, LLC v. Town of
Weaverville Zoning Bd. of Adjust., 188 N.C. App. 55, 57, 654 S.E.2d 784, 787 (2008).
As to matters of law, the court proceeds de novo, meaning that it is not required to
give deference to the governing body’s determination as to such issues. Id. at 58,
654 S.Ed.2d at 787–88. In contrast, as to matters of fact, the court’s inquiry is
limited to determining whether there was sufficient competent evidence to support
the finding, and if there was, the finding is conclusive, even if there was competent
evidence to support a contrary finding. In determining whether there is such
evidence, the court examines the entire record below, and the process is referred to
as a whole record test. Id. at 57–58, 654 S.E.2d at 787; see also Batch v. Town of
Chapel Hill, 326 N.C. 1, 12, 387 S.E.2d 655, 662, cert. denied, 496 U.S. 931 (1990).
{45} In this case, the court is called upon to review both issues of law and
fact. Therefore it employs different standards of review. Plaintiff’s factual and
legal arguments have evolved during the course of the proceeding. In summary, the
following are the questions now properly before the court and the standard of
review the court must exercise:
1. Does the court have jurisdiction to review the Board’s action. This is
an issue law, to be determined de novo.
2. May the common law amotion procedure be employed to remove an
elected official if accompanied by adequate procedural safeguards and
supported by sufficient competent evidence? This is an issue of law to
be determined de novo.
3. Was Plaintiff entitled to due process and did he receive it? This is an
issue of law to be determined de novo.
4. Was there sufficient competent evidence to support the Board’s finding
of just cause to remove Plaintiff from office? This presents a mixed
question of law and fact. The court must first determine the standard
by which the evidence is to be measured, and does so de novo. It then
utilizes the whole record test to determine if there was sufficient
competent evidence to satisfy this legal standard.
5. If the Board’s order to remove Plaintiff from office was valid, is
Plaintiff nevertheless entitled to maintain his office until his successor
is appointed and qualified? This is an issue of law to be determined de
novo.
IV. ANALYSIS
A. The Court Has Certiorari Jurisdiction to Review the Board’s Determination
{46} The Amended Complaint requests first that the court provide Plaintiff
with a de novo trial before the court sitting without a jury. The court has no
authority to grant this relief. Alternatively, the Amended Complaint requests that
the court review the proceedings to determine “whether or not Plaintiff received a
fair and impartial trial and if the actions he was alleged to have taken allow his
removal from office.” (Am. Compl. Prayer for Relief, ¶ E.) This is in the nature of
review by certiorari. A Superior Court is authorized to review quasi-judicial
determinations by governmental agencies by certiorari where no process of appeal is
otherwise provided. Russ, 232 N.C. at 130, 59 S.E.2d at 591. The North Carolina
Supreme Court has recognized that, “when the motion is allowable only for cause[,]
the soundness of such cause is reviewable by the courts . . . .” Burke v. Jenkins, 148
N.C. 25, 27, 61 S.E. 608, 609 (1908). The court accepts the Amended Complaint as a
proper petition for review of the Board’s finding by certiorari, the Parties have now
furnished the court with the record from below upon which the review is to be
based, the court has received briefs and heard oral argument, and the matter is
properly before the court for determination.
B. Amotion Remains a Valid Procedure When Accompanied by Procedural
Safeguards and Findings Based on Sufficient Competent Evidence
{47} The Amended Complaint ¶ 29 alleges that, “[t]here is a question of law
whether the Amotion hearings are indeed still the law of the land in North
Carolina.” This phrasing of the question recognizes that the amotion procedure was
at least recognized in North Carolina in some circumstances at an earlier point in
time. North Carolina Supreme Court opinions compel this recognition, even though
the decisions were issued several years ago and the amotion procedure has been
seldom used. Plaintiff contends, however, that the procedure could not be used here
for two primary reasons. First, he contends that the procedure has become
outdated. Second, he contends that the power of amotion has never been extended
to a county government whose power is more constrained than a municipal
corporation. The court is not persuaded by either of these assertions.
{48} The amotion procedure is derived from a corporation’s implied powers
to achieve its purposes, and refers to the inherent power of a corporation to remove
a corporate officer for sufficient cause. It originated in the English common law and
was a power exercised by municipal corporations at least as early as 1758. Ellison
v. Aldermen of Raleigh, 89 N.C. 125, 127 (1883), citing Lord Mansfield’s holding in
Rex v. Richardson, 1 Burr. 539. Ellison reviewed the removal of an elected town
alderman. In the course of its opinion, the North Carolina Supreme Court stated
that “there can be no serious doubt of the right of a corporate body to vacate the
seat of a corporate officer for adequate causes arising subsequent to taking his seat
….” Id.
{49} Later in 1908, the North Carolina Supreme Court framed the issue as:
“[t]he question presented is the right of the town commissioners to remove an
official for cause and upon notice[,]” and then upheld the town’s exercise of that
right. Burke v. Jenkins, 148 N.C. 25, 27, 61 S.E. 608, 609 (1908). There, the
commissioners had removed an elected city treasurer for his failure to abide by the
commissioners’ directions regarding the use of town funds. Without citing Ellison,
Burke upheld the city’s removal of the treasurer, and in doing so, discussed with
approval Lord Mansfield’s holding in 1883 that the power to remove a corporate
officer “… is one of the common-law incidents of all corporations.” Id. The Burke
court further held that the removal procedure cannot be implemented without
notice and an opportunity to be heard. Id. at 28, 61 S.E. at 609. The court did not
further elaborate on whether those requirements were because the officer was being
deprived of a property or liberty interest.
{50} Burke was later cited in Stephens v. Dowell, 208 N.C. 555, 181 S.E.
629 (1935). In a somewhat different context, as late as 1950, the North Carolina
Supreme Court utilized the term “amotion” to describe a procedure that it upheld.
Russ, 232 N.C. 128, 59 S.E.2d 589. It is then clear that the North Carolina
Supreme Court expressly recognized the amotion procedure to remove an elected
official as a part of the English common law which was adopted and used in North
Carolina, and that the North Carolina Supreme Court has not since indicated any
intent to restrict the procedure.
{51} Its adoption from common law is significant. The North Carolina
Legislature has expressed a policy that principles of the common law remain in full
force absent extraordinary circumstances. N.C. Gen. Stat. § 4-1 (2012) provides:
All such parts of the common law as were heretofore in force and use
within this State, or so much of the common law as is not destructive
of, or repugnant to, or inconsistent with, the freedom and
independence of this State and the form of government therein
established, and which has not been otherwise provided for in whole or
in part, not abrogated, repealed, or become obsolete, are hereby
declared to be in full force within this State.
{52} Even the North Carolina Supreme Court has only limited ability to
modify the common law. See Wells v. Guardian Life Ins. Co., 213 N.C. 178, 195 S.E.
394 (1938). Certainly, this trial court’s authority is even more constrained, and
quite clearly, a trial court may not simply choose not to follow direct holdings of the
North Carolina Supreme Court.
{53} Plaintiff suggests that the court can find an implied legislative policy
rejecting a modern use of the amotion procedure because it has in other instances
adopted local legislation providing for a recall election. The court does not believe
that the potential of a recall election necessarily negates the common law amotion
process. It is clear the Legislature knows how expressly to impose limits on
removing an elected official and to increase judicial involvement in the process as it
did when providing procedures for removing elected sheriffs. See N.C.G.S. § 128-
16–20 (2011).
{54} Further, to restrict the county’s corporate power by implying a policy
against amotion would require the court to ignore that the Legislature has directed
that a county board’s corporate powers should be construed broadly. Section 153A-
11 of the North Carolina General Statutes recognizes the county as a corporate body
and N.C.G.S. § 153A-12 directs that the powers of the corporation shall be exercised
by the Board. N.C.G.S. § 153A-4 directs that:
It is the policy of the General Assembly that the counties of this State
should have adequate authority to exercise the powers, rights, duties,
functions, privileges, and immunities conferred upon them by law. To
this end, the provisions of this Chapter and of local acts shall be
broadly construed and grants of power shall be construed to include
any powers that are reasonably expedient to the exercise of that power.
{55} As to Plaintiff’s argument that a county’s power is not as great as that
of a municipal corporation, the Legislature’s grant of authority to counties in
N.C.G.S. Chapter 153A uses virtually identical language to the grant of authority to
municipal corporations in Chapter 160A. As to Plaintiff’s argument that the
amotion procedure has become archaic, the court notes that the Legislature
completely recodified former Chapters 153 and 160 when enacting Chapters 153A
and 160A. It could have but did not retrench from the scope of its broad grant of
authority and direction that such authority be broadly construed.
{56} In sum, the court finds no basis to conclude that the amotion procedure
recognized at common law has become archaic or has been expressly or impliedly
withdrawn by either North Carolina’s appellate courts or the Legislature, and the
court finds no basis for distinguishing between the authority that counties or
municipal corporations have to utilize an amotion procedure. There is then no basis
in law to set aside the Board’s use of the amotion procedure so long as its use was
accompanied by appropriate procedural safeguards and the Board’s findings and
conclusions were supported by sufficient competent evidence. Clearly, the court
recognizes that use of the amotion procedure has been and should be limited to
extraordinary circumstances, for setting aside a decision of the electorate is not a
light manner. For that reason, the courts remain vigilant to assure that the
amotion procedure is not misused for improper political or personal purposes. But a
trial court does so, not by removing the power of amotion altogether, but by its
critical review of procedural safeguards employed and an appropriate examination
of the sufficiency of the evidence supporting the findings. The court now turns its
address to that review, leaving to the Legislature or higher courts any decision to
abandon the amotion procedure itself.
C. An Amotion Procee
Proceeding Must Include Notice and Hearing,
Hearing, Including Fact
Finding By An Impartial Decision Maker Based on Evidence Presented
{57} The Amended Complaint’s First Claim for Relief is labeled as a due
process claim. Although not particularly artfully or precisely stated, the claim is
essentially that the process the Board followed was infirm because the Board was
not an impartial fact finder. Referencing Commissioner Barfield’s expressed
concern that the outcome of the hearing had been decided in advance (Am. Compl. ¶
20), Plaintiff asserts that there is “an inference of a non-impartial arbiter.” (Am.
Compl. ¶ 28.) His prayer for relief asks the court to determine whether the hearing
was “fair and impartial.” (Am. Compl. Prayer for Relief, ¶ E.) Plaintiff’s
subsequent briefing raises a host of other procedural attacks, seeking largely to
incorporate formal judicial procedures into the Board’s quasi-judicial
determination.1
{58} Before turning to the specific challenge, the court first notes the
Board’s contention that Plaintiff is not entitled any due process because he has no
property right or liberty interest in his elected office. (New Hanover County Board
of Commissioners’ Supplemental Br. (hereinafter “Board Supp. Br.”) 6.) But the
Board also acknowledges, as case law requires it must, that certain due process
procedures must accompany any quasi-judicial proceeding. (Board Supp. Br. 10.)
The North Carolina Supreme Court conditioned its recognition of the amotion
procedure to remove an elected official on at least notice and hearing. Burke, 148
N.C. at 28, 61 S.E. at 609. In a later decision, the North Carolina Supreme Court
held that a “statutory proceeding for the amotion of a school committeeman is
judicial or quasi-judicial in character,” and that requisite procedures must include
notice of the proceeding and charges presented, an opportunity to be heard and
produce evidence in defense, and a full and fair hearing in which findings were
based on evidence adequate to support the cause asserted as grounds for removal.
Russ, 232 N.C. at 129–30, 59 S.E.2d at 590–91. As discussed more fully below, the
court believes that once the right of a hearing attaches, there are other procedures
that must be followed to assure that this hearing is a fair one.
1. The Revised Hearing Rules were adequate to provide due process
so long as the Board made its decision as an impartial fact-
fact-finder
based on evidence presented.
{59} The court divides its analysis into two parts. First, the court addresses
Plaintiff’s attack on the hearing procedures the Board implemented. Second, the
court addresses the challenge to the Board’s impartiality.
{60} The court begins with Plaintiff’s claim that he was not given adequate
time to prepare for the hearing. (Pl.’s Supplemental Br. (hereinafter “Pl.’s Supp.
1 The court believes that the due process claim is limited to one of procedural due process. Neither
the Amended Complaint nor implications drawn from its generalized allegations rise to the level
necessary to invoke a claim for the deprivation of substantive due process. See Toomer v. Garrett,
155 N.C. App. 462, 574 S.E.2d 76 (2002), rev. denied, 357 N.C. 66 (2003).
Br.”) 7–8.) Plaintiff suggested he had only prepared for a few days, but it is clear he
was served with the Amotion Petition and its supporting documentation almost one
month before the hearing. (Tr. 144:9–14, 159:14–15.) Plaintiff had adequate notice
to file a witness list before the hearing and to prepare a notebook of exhibits he
introduced. His argument that he was not given adequate time to prepare finds
simply finds no support in the record.
{61} Next, the court addresses Plaintiff’s challenge stated in the original
Complaint filed before the hearing that the Board threatened to shorten the time in
which he might present his defense. No such time limitations were imposed at the
hearing. (Tr. 77:20–22.) Plaintiff was not foreclosed from presenting evidence
because of time constraints. (Tr. 77:20–22.) There is then no due process argument
to be made on that basis.
{62} The court now addresses Plaintiff’s claim that the Board was required
to follow the North Carolina Rules of Evidence (Tr. 10:11–20, 20:10–20) and because
it did not he had no opportunity to “cross-examine the documents.” (Tr. 20:15–20.)
A board conducting a quasi-judicial hearing is not required to implement and follow
the North Carolina Rules of Evidence. See Cook v. Union Cnty. Zoning Bd. of
Adjustment, 185 N.C. App. 582, 594, 649 S.E.2d 458, 468 (2007); In re Application
of Raynor, 94 N.C. App. 173, 177, 379 S.E.2d 884, 887 (1989). Plaintiff likewise was
able to place materials in the record for consideration with the same latitude
employed by the Board. (Tr. 12:1–4.) As to the claim that Plaintiff was unable to
“cross examine the documents,” one, of course, does not cross-examine documents.
The argument is a variant on the attempt to impose the authenticating
requirements of the Rules of Evidence which the Board was not required to follow.
Plaintiff was given fair opportunity to attack the proper weight to be given to any
document. (Tr. 12:2–4.) That satisfied the requirements for the quasi-judicial
hearing.
{63} The court turns to Plaintiff’s assertion that it was improper for the
Board to consider lay opinions as to Plaintiff’s mental condition or fitness for office.
(Pl.’s. Supp. Br. 26.) Plaintiff acknowledges that North Carolina case law clearly
establishes that a witness may offer observations based on personal experience.
(Pl.’s Supp. Br. 26.) Lay opinion as to a person’s mental or physical health can be
considered. Dunn v. Custer, 162 N.C. App. 259, 267, 591 S.E.2d 11, 16 (2004).2 In
fact, Plaintiff took advantage of this rule in presenting testimony from Ms.
Bordeaux. To the extent that Plaintiff argues that the evidence simply was not
adequate to support the Board’s finding, this is not a due process challenge.
{64} Finally, the court finds no merit in Plaintiff’s assertion that the Board
improperly shifted its burden of proof to Plaintiff. His argument fails to distinguish
between the burden of proof and the burden of persuasion. There is no argument
that the burden of proof was on the Board to demonstrate just cause for removal,
and the court can review whether it had sufficient competent evidence to satisfy
this burden. The due process inquiry is whether Plaintiff was given the opportunity
to confront the Board’s evidence and to present evidence in his own behalf. He
clearly had this opportunity so long as the Board’s finding was based on the
evidence presented. The Board did not improperly shift its burden. Likewise, if it
considered Plaintiff’s voluntary choice not to testify in his own behalf, which is not
clear, it would not have been improper. See Jacobs v. Locklear, 65 N.C. App. 147,
150, 308 S.E.2d 748, 750 (1983). The court need to not further consider Plaintiff’s
argument that the extent of that consideration cannot rise to the level of imposing
certain presumptions, as there is no evidence that the Board utilized or relied upon
any such presumption.
{65} In sum, the court concludes that the procedures the Board utilized
comported with due process so long as it proceeded the decision to remove was made
by an impartial fact-finder based on evidence presented. The court then turns to
this second part of its due process analysis.
2 The Supreme Court of South Carolina considered lay opinion specifically in the context of one’s
opinion as to a person’s rationality and found that lay opinion on the subject was proper. See
Crowley v. Spivey, 258 S.C. 397, 413, 329 S.E.2d 774, 784 (1985).
2. Plaintiff Did Not Prove Bias, But the Order of Removal Is Infected
By Including Findings of Fact Not Based on Evidence Presented
{66} Findings of fact numbers 15 and 163 in the Order of Removal are based
on statements by Commissioners Dawson and Wolfe made after the evidentiary
presentation as to their personal observations and their personal interaction with
unnamed county staff. While it may not have been improper for these
Commissioners to explain how their review of the evidence presented may have
been informed by their personal experiences, due process considerations clearly
came into play when those personal experiences were themselves adopted as
findings of fact upon which the Board’s ultimate conclusion rested. In examining
whether the conclusion resulted from a full and fair hearing before an impartial fact
finder, the court cannot simply disregard findings based on the experiences of the
fact finders themselves and then determine whether other findings were sufficient.
The single fact that the decision was not on its face limited to the evidence
presented but extended to personal experiences of the fact finders requires that the
court remand the matter for such further proceedings as the Board may choose to
implement.
{67} The court again returns to the Board’s assertion that Plaintiff has no
property or liberty right in his elected office and was not therefore entitled to the
due process rights Plaintiff asserts. (Board Supp. Br. 6–7.)4 But, as noted above,
3 The court separately closely considered finding of fact 17 which represents views Commissioner
White’s expressed at the hearing. But after that careful consideration, the court concludes that
finding 17 is not an improper finding outside the evidence, but may be considered a commentary on
evidence actually presented.
4 The court agrees that the holding of an elected public office has not been recognized in North
Carolina per se as a “property right.” See Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976); Mial
v. Ellington, 134 N.C. 131, 46 S.E. 961 (1903). The Board cites several other federal and state cases
which stand for this general proposition. There are instances when it would be clear that no such
right is being compromised, such as, for example, where one is not allowed to stand for election or
not allowed to take office after an election. Likewise, a different circumstance may be at play when a
superior authority eliminates an office altogether. Due process may further be owed when removing
a person from office is accompanied by a loss of salary or benefits which may more classically satisfy
the definition of a “property right.” The record is not entirely clear what rights may have flowed to
Plaintiff, but the Order of Removal indicates that Plaintiff would lose benefits and salary as of the
effective date of June 30, 2013.
the North Carolina Supreme Court clearly conditioned the use of the amotion
procedure on notice and hearing. Burke, 148 N.C. at 28, 61 S.E. at 609. Implicitly,
the hearing must be a fair one. Here, at the inception of the May 20, 2013 hearing,
the Board expressly stated its intent to provide Commissioner Berger a “full and
fair hearing” (Tr. 18:16–20), and found in paragraph 14 of its Order for Removal
that it had done so. The North Carolina Supreme Court has stated that, “[a]n
unbiased, impartial decision-maker is essential to due process.” Crump v. Board of
Education, 326 N.C. 603, 615, 392 S.E.2d 579, 585 (1990). The court concludes that
the hearing required under Burke must be a hearing before an unbiased, impartial
decision-maker which bases its determination on the evidence presented. It need
not further analyze whether rights that Plaintiff has rise to the level of a property
or liberty right.
{68} Plaintiff relies heavily on Crump. But, the court notes that Plaintiff
very clearly has not developed a factual record to support an assertion of bias as
had Crump. In Crump, the North Carolina Supreme Court makes clear that such a
record is essential, and bias cannot rest solely on “inference,” so that Plaintiff’s
reference to such an “inference” in the Amended Complaint cannot not support
remanding the matter. Crump, 326 N.C. at 616–17, 392 S.E.2d at 586. Crump also
makes clear the Commissioners are not necessarily disqualified or biased solely
because they have prior knowledge of significant facts. Id. Quite to the contrary,
they are entitled to a presumption that as fact finders they acted with honesty and
integrity even in the face of such prior knowledge. Id. Crump also does not
mandate that Plaintiff was necessarily entitled to call any Commissioner as a fact
witness beyond a limited inquiry necessary to assess bias.
{69} If the Board had not relied on fact findings based on the personal
experiences of the fact finders, the court would conclude on this record that Plaintiff
had failed to demonstrate a basis on which the Board’s finding would be set aside on
due process grounds. The burden is on Plaintiff to demonstrate bias. Plaintiff
seeks to satisfy his burden by reference to two matters. First, Plaintiff suggests
bias was shown because the Board majority had already chosen Plaintiff’s successor
thereby creating some personal interest. (Tr. 143:21–23.) There was no
evidentiary basis to support the assertion, particularly where the Board Chairman
expressly denied the contention. Even so, that fact would not support a conclusion
of actual prejudice. Second, Plaintiff refers to Commissioner Barfield’s concern that
the result of the hearing in favor of removal was inevitable. (Tr. 15:7–8.) Even if
one were to conclude that this expression, with no further supporting details, were
adequate to support an “inference,” an inference is not sufficient. It is true that
fact-finder bias may be shown by proof of a “prejudgment of adjudicative facts.”
Crump, 326 N.C. at 615, 392 S.E.2d at 585. But proof of such bias requires much
more than innuendo or inference. Rather, there is a “heavy burden” required to
prove bias and the necessity to “overcome a presumption of honesty and integrity in
those serving as adjudicators.” Braswell v. Haywood Reg’l Med. Ctr., 352 F. Supp.
2d 639, 646 (W.D.N.C. 2005) (quoting Simpson v. Macon Cnty., 132 F. Supp. 2d 407,
411 (W.D.N.C. 2001). This record is significantly short of meeting such a heavy
burden.
{70} And, again, the Commissioners were not disqualified solely because
they had prior factual knowledge. Cases establish that a decision maker is not
disqualified nor is the presumption of integrity overcome simply because she has
prior knowledge related to the controversy. Kea v. Dep’t. of Health & Human
Servs., 153 N.C. App. 595, 605, 570 S.E.2d 919, 926 (2002). In fact, in some
instances it may be inevitable that a decision maker will have prehearing
knowledge of underlying facts. See Evers v. Pender Cnty. Bd. of Educ., 104 N.C.
App. 1, 16, 407 S.E.2d 879, 887 (1991).
{71} In sum, Plaintiff has not proven bias. Neither does the court conclude
that Plaintiff would be necessarily deprived of due process by being unable to call
the Commissioners as witnesses so long as the Board’s ultimate decision rested on
only other sufficient evidence presented. The due process concern arose because on
the one hand the Commissioners were protected from testifying because they were
fact finders but on the other hand they interjected their personal observations and
interactions into the fact findings upon which their action was based.
{72} The court has carefully considered the argument in the Board’s
memorandum that the Order of Removal can stand because there is sufficient
competent evidence to support it even if findings 15 and 16 are disregarded. Even if
the court accepts the sufficiency of other findings to support the ultimate
conclusion, that conclusion would not cure the due process concern of a fact finder
having interjected facts based only on personal experiences not presented in the
form of evidence. The court is guided by the holding in Crump which recognized
that a Board’s decision cannot be saved simply by disregarding the vote of a biased
fact finder leaving an adequate majority of other fact finders. Crump, 326 N.C. at
618–20, 392 S.E.2d at 587–88. The same logic applies to preclude dismissing due
process concerns simply by disregarding certain fact findings based on the
observations or experiences of the fact finders.
{73} Again, the court has not found that there was bias. It rather has held
that the ultimate conclusions were infected by the insertion of personal experiences
of the fact finder that were not presented in the form of evidence and subject to the
hearing procedures attendant to the presentation of other evidence. The court
concludes that the ultimate decision should be by an impartial fact finder and
should be based only on the evidence presented at the hearing.
{74} The court cautions that it also has not held that any removal from
office would be foreclosed even if bias could be proven in any further proceeding.
The court is aware of no authority by which the Board could delegate its decision
making by appointing a special committee as might a private corporation. As such,
other than a recall election, it is the only body having authority to consider removal.
There are cases where courts have upheld even biased quasi-judicial decisions when
they were made by the only governmental body that had the power to make the
finding. They did so employing a doctrine referred to as the “rule of necessity.” See
Arnold Rochvarg, Is the Rule of Necessity Really Necessary in State Administrative
Law: The Central Panel Solution, 19 J. NAALJ 35 (1999) (discussing the application
of the rule of necessity in state administrative agencies). The court expresses no
opinion on whether this rule of necessity would apply where there is the possibility
of a resort to a legislatively authorized recall election.
D. The Sufficiency and Competency of Evidence to Find Just Cause for Removal
Must Relate to the Duties of the Elected Office
{75} Having determined that it must remand the matter for the reasons
stated, the court does not have before it the final record from which to determine an
ultimate finding as to sufficiency of competent evidence to support removing
Plaintiff from his elected office. The court believes it nevertheless appropriate to
provide observations from its studied review of the present record, the extensive
briefing and the cases and other legal authorities which have been cited. A court
reviewing a finding removing an elected official from office after having been given
full due process will utilize the deferential whole record test to judge the sufficiency
of evidence, but before doing so, will be cognizant of the legal standard against
which that evidence is to be measured. That standard is not well-defined, in
significant part because the amotion procedure has been so seldom used,
particularly in North Carolina. But, it seems clear that a court called upon to make
that final review will necessarily be faced with achieving the balance between the
extraordinary concept of overturning the results of an election and a set of facts
which can also be extraordinary in its presentation of how an elected official has
acted or failed to act so as to hamper the functioning of the office to which he or she
was elected or create safety, security, or liability concerns arising from his or her
action or inaction in office.
{76} Here, the Board utilized a standard of “just cause” or “reasonable just
cause.” That standard is consistent with the language of the North Carolina
Supreme Court decisions. In Burke, the court quoted with approval from a treatise
that referred to removal from office “for reasonable and just cause.” Burke, 148
N.C. at 25, 61 S.E. at 609 (quoting 1 John. F. Dillon, The Law of Municipal
Corporations § 240 (4th ed.)).
{77} But the North Carolina case law provides no further concrete guidance
on what may be required to find “just cause.” After substantial study, the court
agrees with the Board’s position that ultimately the evidence must be measured on
a case by case basis on something less than a single comprehensively defined
objective standard. That said, the notion of “cause” should not flex solely on the
whims of political winds. But, the standard must be flexible enough that the
governmental body has a reservoir of power to respond to that extreme set of facts
that challenges the integrity of the governmental process. Ultimately, a court may
be unable to draw precise dividing lines that define when amotion may or may not
be appropriate. The court concludes, however, that in all cases, a finding of cause to
remove an elected official from office will depend upon conduct that is sufficiently
tied to the duties of the elected office from which an elected official is being
removed.
{78} Each of the Parties have referenced Professor Lawrence’s article which
discusses a series of hypotheticals designed to illuminate degrees of evidence which,
based on historical uses, might be adequate to support removal from office. David
M. Lawrence, Removing Local Elected Officials from Office in North Carolina, 16
Wake Forest L. Rev. 547, 555–60 (1980). Professor Lawrence suggests that grounds
which support amotion may be grouped as disqualifying legal causes, such as
failure to meet a residency requirement, misconduct in office, and neglect of duty.
Id. at 554. He seeks to distinguish between “misconduct in office” and other
evidence, which although is unsavory, does not impact official duties to a sufficient
manner to warrant removal. As to the use of criminal offenses to prove misconduct
in office, Dr. Lawrence observes a modern trend is to limit consideration to
convictions of felonies and offenses that involve a violation of official duties. Id. at
556.
{79} The court benefited from the article’s scholarship and thorough
research. But the evidence from case to case will seldom easily compress into
convenient categories one may use to fashion hypotheticals. To the contrary,
evidence will almost inevitably overlap categories. A court will properly examine
the cumulative evidence rather than parsing individual acts into separate pockets.
Some evidence taken from personal life outside of office viewed in isolation may not
appear appropriate to lead to removal, yet that same evidence may provide context
for matters that are manifested by acts in office. No doubt, the evidentiary balance
becomes even more fragile if findings must be based on criminal charges
unaccompanied by convictions.
{80} The court’s considered analysis also suggests that the tie between the
evidentiary record and the duties of office upon which the fact finder perceives
should be more express than implied. That is, that the burden of showing sufficient
competent evidence in most instances would impose on the fact finder an obligation
to make clear how it has measured the underlying evidence as against the duties
and abilities expected of the office. Again, the court recognizes that the standard is
necessarily imprecise. While the court is not suggesting that this connection can
always be objective, it should be as far removed from subjective as reasonably
possible. References to perception as to loss of voter confidence are necessarily more
subjective than events or expressions which actually document such erosion of
confidence. And, again, the court, as apparently did the courts at common law,
recognizes that some occurrences are so “infamous” that no further support is
required.
{81} The court also carefully considered the Board’s references to Plaintiff’s
failure to abide by the Board’s Code of Ethics, and the Parties’ briefs address
whether a violation of such a code is competent evidence supporting removal. The
court reviewed the mandate of N.C.G.S. § 160A-86 which requires that the Board
adopt such a code, and concludes that the phrasing of that statute amplifies that
there should be a tie between the conduct complained of to support removal and the
duties of the office from which the official is to be removed. The statute speaks in
terms of the need to: “obey all applicable laws regarding official actions…;” “uphold
integrity and independence of the board member’s office;” “avoid impropriety in the
exercise of the board member’s official duties;” and “faithfully perform the duties of
the office.” N.C.G.S. § 160A-86 (b) (1)–(4).
{82} The court comments on Plaintiff’s argument that a court should not
consider a line of cases cited by the Board because they arise in the context of
terminating employment of a public official as opposed from removing an elected
official from office. While there may be distinctions, the employment cases are not
altogether irrelevant. They recognize that a governmental body should not be
paralyzed when faced with circumstances that create hostilities that thwart
government functions or threaten those whose efforts are critical to performing
those functions. An elected official is not necessarily immune from the
government’s power to respond simply because he was elected. Courts have clearly
recognized that a governmental body may take appropriate action when problems
arise regarding an elected official’s conduct tied to the duties of office. E.g., Walker
v. United States Postal Serv., 4 F. App’x. 896 (D.C. Cir. 2001); Giessow v. Litz, 558
S.W.2d 742 (Mo. Ct. App. 1977).
{83} In addition to removal, a governmental body may in appropriate
instances be within its powers to implement extraordinary restrictions on an elected
official’s access to government facilities, processes, computers, and e-mail systems.
E.g., Handy v. Lane Cnty., No. 6:12-cv-01548-AA, 2013 U.S. Dist. LEXIS 44177 (D.
Or. Mar. 26, 2013). A North Carolina federal district court has recognized actions
necessary to ameliorate adverse conduct may outweigh the elected official’s right to
free speech or expression of opinions. See Iglesias v. Wolford, 667 F. Supp. 2d 573
(E.D.N.C. 2009), aff’d, 400 F. App’x. 793 (4th Cir. 2010). Here, the evidence
includes elements that admittedly may be more in the nature of inefficiencies and
inconveniences, such as tardiness, but the Board also expressed great concern of
actual or potential hostile work environment and genuine concerns for security and
or personal safety. Plaintiff attacked the evidence to the extent it could be
characterized as subjective fears of future events. The Board instead believed the
evidence proved existing concerns. A court is always in a more secure position when
it is able to divine between the two based on concrete evidence, and sometimes
testimony may be more effective in distinguishing between the two than competing
arguments as to what conclusions should be drawn from documents.
{84} In summary, the matter must return to the Board for such further
proceedings as it may elect to implement. For that reason, the court has made no
final determination as to the sufficiency of competent evidence to support the
Board’s conclusion that just cause exists to remove Plaintiff from office. Should the
matter return to this or another court upon a finding of just cause to remove
Plaintiff from office resulting from further proceedings, a primary focus of the
evidentiary review will be the sufficiency of competent evidence tied to the duties of
the office from which the elected official is to be removed.
E. A Finding of
of Removal, Otherwise Proper, Would Not Be Precluded By
Application of Article VI, Section 10 of the North Carolina Constitution
{85} The Second Claim of the Amended Complaint asserts that even if the
Board otherwise has power to remove Commissioner Berger, his removal cannot be
effective until his successor is chosen and qualified. He bases his claim on Article
VI, Section 10 of the North Carolina Constitution which provides:
In the absence of any contrary provision, all officers in this State,
whether appointed or elected, shall hold their positions until other
appointments are made, or, if the office is elective, until their
successors are chosen and qualified.
{87} While again this issue may not now be ripe with the court now
remanding the matter, the court observes that there is a paucity of cases
interpreting this provision. The court construes the article as intending to allow for
government business to be able to proceed between an election and the seating of
the newly elected person, rather than to provide protection for the elected official
whose term has expired. As such, it should not and would not preclude the removal
of an elected official in term, provided there was just cause for doing so determined
upon proper procedure, and his removal need not await the appointment of the
successor. The court refused to issue an injunction against implementing the
removal on the basis of this Article because it concluded that Plaintiff was unable to
show the probability of success on that claim. The court believes its decision to
decline that requested injunction on that ground was a correct one.
IV. CONCLUSIONS OF LAW
Based on the record reviewed, for the reasons stated, the court concludes as
follows:
1. The Parties are properly before the court and venue is proper;
2. The Amended Complaint was an appropriate request for a writ of
certiorari to review the determination of the Board;
3. The court has the power and jurisdiction to review the Board’s action
pursuant to N.C.G.S. § 1-269, the record below has been furnished, and
the matter is properly before the court;
4. An amotion procedure remains a lawful procedure that may be utilized
for the purpose of removing an elected official so long as such
procedure includes notice and hearing and is based upon sufficient
competent evidence demonstrating reasonable and just cause for
removal;
5. Competent evidence demonstrating reasonable and just cause for
removal should relate to the duties of the elected office from which the
elected official is to be removed;
6. Any hearing must be before an impartial finder of fact based on
evidence presented;
7. Plaintiff has not presented a record demonstrating bias;
8. However, the court cannot conclude that the Board’s Order of Removal
was made by an impartial fact finder based on evidence presented
because that Order includes findings of fact based solely on the
personal experiences of the fact finders, including interactions with
unnamed staff;
9. The Board’s Order of Removal must then be set aside without
prejudice to the Board’s ability to convene a further hearing and to
take appropriate interim steps as necessary to provide for the conduct
of the government’s business or for safety and security;
10. Plaintiff is then restored to his elected office pending further proper
action taken to remove him; and
11. In the event further proper action is taken to remove him, such
removal need not be delayed solely to await the appointment and
qualification of his successor.
IT SO ORDERED, this 5th day of September, 2013.