Berger v. New Hanover County Board of Commissioners

• Citation: 2013 NCBC 45
• Decision Date: 05 September 2013
• Docket Number: 13 CVS 1942
• Court: Superior Court of North Carolina
• Parties: BRIAN BERGER, Plaintiff, v. NEW HANOVER COUNTY BOARD OF COMMISSIONERS, Defendant.

2013 NCBC 45

BRIAN BERGER, Plaintiff, v. NEW HANOVER COUNTY BOARD OF COMMISSIONERS, Defendant.

No. 13 CVS 1942

Superior Court of North Carolina, New Hanover

September 5, 2013

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.

ORDER

{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.

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...