In New Hanover County, local politics has taken an interesting turn since the election of Brian Berger to the New Hanover County Board of Commissioners in 2010. Since that time he had clashed with other members of the Board and been accused of harassing staff and odd behavior. After an incident where he attempted to hand a manifesto to the governor of North Carolina on a visit, some members of the Board decided that he should be removed from office. Since there is no statute that governs the removal of a county commissioner, the commissioners relied on an old practice known as amotion. This practice is uncommon, and the last recorded use against an elected official was at the dawn of the 20th century. Nevertheless, since the law has not been repealed either by statute or by subsequent decisions by the North Carolina Supreme Court, it is still a valid and legal procedure.
The practice is intrinsic to all corporations, including incorporated governmental entities. The cases that discuss amotion frequently discuss the procedural aspects, making sure that the person being removed gets a fair hearing. The person should have adequate notice of the proceeding; and an opportunity to be heard regarding the charges against him and to be able to produce testimony and evidence in his behalf. He should be provided a full and fair hearing on the merits of the charges and have the hearing documented through recorded minutes. Finally, as the hearing is a quasi-judicial hearing, the person should have the opportunity to appeal the amotion hearing. This should be to the Superior Court division of North Carolina, as the division with the highest original jurisdiction. The Superior Court judge should also be limited to a determination regarding whether the findings made in the amotion hearing that supported the removal could reasonably been made.
In the hearing, the hearing officials have to find that there was reasonable and just cause for removal concerning the official’s misconduct or lack of fitness. There is very little caselaw on what behavior would rise to the level of misconduct or lack of fitness.
A different procedure exists called an action in quo warranto, that is available to challenge the issue of legal capacity or qualification to hold office. An example would be a residency, age or clean criminal record requirement. That type of challenge is fairly straightforward as it is codified under sections 1-515, 515, 516, 522, and 528 of the North Carolina General Statutes. The quo warranto action needs to be brought within 90 days of induction into the office, unlike the amotion procedure, which has no time limitation. In addition, an action for mandamus can be brought in the situation where the office is vacant and a defendant is preventing a plaintiff from taking his position.
After a four hour hearing before the Board, where he was represented by an attorney, Mr. Berger was removed in a 3-2 vote. Not surprisingly, Mr. Berger was one of the “no” votes. As of this time, he has not yet filed for an appeal to the Superior Court.
--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation. Please contact him at (910) 772-1678.
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