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AmotionOff the Rails and Then Some

Karen M. McDonald, Fayetteville City AttorneyT.C. Morphis, Jr., The Brough Law Firm, PLLC

Municipal Attorneys’ Winter ConferenceUNC School of Government

Chapel Hill, NCMarch 21-22, 2019

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What is Amotion?

• Common law action that allows removal of board members

• Originated in the English Common law

Requirements foran Amotion Proceeding

• Due Process

• Notice & Hearing

• Burden of Proof

• Standard of Removal

Due Process

• Specific Charges or Grounds for Removal

• Notice

• Hearing and Opportunity to Defend

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Adequate Notice of Hearing and Charges

• Board adopts a motion or petition.

• Petition should include the basic allegations in support of removal.

• Reasonable and meaningful opportunity to be heard.

General Rules of Procedure

• The municipal attorney puts forward the evidence to support removal.

• The Board should be advised as to procedure and other matters by outside counsel.

• Hearing is held in open session.

Impartial Decision-Maker

• Board is considered impartial.

• Mayor presides over the hearing.

• Decision based on the evidence presented.

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Burden of Proof

• Burden rests with the Board.

• Rules of Evidence DO NOT Apply.

What Standard is Used?

• Berger case emphasized that the “sufficiency and competency” of the evidence presented must relate to the duties of the office.

Examples of Potential Grounds for Removal• Legal incapacity to hold

office • i.e., residency requirement

• Extreme neglect of official duties

• Criminal misconduct and other offenses or convictions that involve a violation of official duties

Documented pattern of:• Violating a Board’s ethics

policy;• Interrupting employee work

or chain of command;• Likely criminal conduct;

and/or• Extreme public behavior that

embarrasses the Town.

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If a Board Votes to RemoveThe Elected Official

• Action subject to Superior Court review.

• The Board should wait a minimum of 30 days before appointing a person to replace the ousted official.

• Replacement serves the remainder of the unexpired term per G.S. § 160A-63.

Questions?

Commissioners vote 3-2 to remove Brian Berger | | wect.com 1/1

Commissioners vote 3-2 to remove Brian Berger www.wect.com May 19, 2013 at 6:58 PM EST – Updated July 11 at 6:00 AM

NEW HANOVER COUNTY, NC (WECT) – Commissioners in New Hanover County voted 3-2 Monday in favor of removing Brian Berger from the board.

The amotion process started after the board’s meeting Monday. It was the first hearing in the state in more than 100 years.

Berger retained a lawyer for the process, Chris Anglin who is based in Raleigh. Anglin filed a Temporary Restraining Order in an effort to delay the process, but a judge ruled against it.

Jonathan Barfield said early in the hearing he was not pleased with the process. He said it seemed like the decision had already been made. Woody White reminded Barfield that elected leaders don’t have the ability to choose which issues to deal with. Berger’s tardiness and other run-ins with the law were mentioned during the hearing. Berger said his witness list for the hearing would have included hundreds, but said he narrowed it to 20 because the list was too long. Only two witnesses testified during the process. Berger also took the stand.

“I take business up here more seriously than my own well being,” Berger said. The amotion hearing proceed as if it was playing out in a courtroom, but it was technically a quasi-judicial hearing.

In April, commissioners voted four to one to censure, or officially reprimand, Berger. Berger was the only opposed vote.

For a more detailed report of the amotion proceedings click here.

Copyright 2013 WECT. All rights reserved.

Another official removal proceeding set in N.C. | | charlotteobserver.com 1/2

Another official removal proceeding set in N.C. The Charlotte Observer – August 7, 2013

For the second time this year, a local North Carolina government is starting a rarely used proceeding to remove an elected official from office.

The Hope Mills board has set Sept. 26 for a hearing on removing Commissioner Tonzie Collins. Collins calls the proceeding a waste of time with elections set in November.

The board in June decided on the hearing because of what it said was Collins’ questionable conduct toward town employees. The town attorney told the board Monday the estimated cost of dealing with complaints against Collins was nearly $24,000.

New Hanover County Commissioner Brian Berger was removed from office earlier this year, the first time in nearly a century an elected official in North Carolina was removed

using the inherent power given governing bodies by common law.

Can City Council oust mayor? Maybe | | journalnow.com 1/2

Can City Council oust mayor? Maybe By Doug Clark Winston-Salem Journal – October 2, 2013

Some members of High Point City Council want Mayor Bernita Sims to resign. They might present a resolution Thursday asking her to step down. If she won’t, can they fire her?

In an editorial last week, we said no. The council has no authority to remove one of its members.

Greensboro blogger Billy Jones said we were wrong. He cited a case in New Hanover County, where commissioners voted in May to unseat Brian Berger.

That did happen. But this is far from a simple question.

There is no statutory authority for a board to oust an elected member. Rather, the New Hanover commissioners relied on a centuries-old common-law practice called amotion.

Even then, they apparently didn’t get it right because their action was overruled last month by Superior Court Judge James L. Gale.

Gale, who normally presides over complex business cases in his Greensboro courtroom, found plenty of complexity in these unusual circumstances.

In a 31-page order, he first determined that the amotion process itself is legally viable, having “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.” This power was upheld by the N.C. Supreme Court in decisions rendered in 1883, 1908 and 1935.

Amotion is not written into general statutes; however, the statutes declare that pre-existing common laws remain in full force unless they’re counteracted in some way.

At the same time, this isn’t a power to play with. Gale went to considerable length — helpfully summarized on the N.C. Local Government Law Blog by Frayda Bluestein Sept. 12 — to describe requirements for due process, notice and hearing, burden of proof, rules of evidence and standard for removal.

On the final, critical point, Bluestein wrote, “Judge Gale concludes that there is no categorical or or definitive answer to this question.” However, “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.”

In New Hanover County, the case against Berger included allegations that he “suffers from a deteriorated mental awareness” and sent harassing emails to county staff, according to Gale’s ruling. Berger has said he has autism. Yet, the effort to unseat him didn’t meet the poorly defined “standard for removal.”

That’s probably a good thing, or else the procedure might be used too often.

By coincidence, it was employed again just last Thursday in the Cumberland County town of Hope Mills. Town Commissioner Tonzie Collins was voted off the board, allegedly for intimidating town employees. In summarizing the case against Collins, Town Attorney T.C. Morphis Jr. said, “Mr. Collins is a good man with two critical flaws,” the Fayetteville Observer reported. “Number one, he’s a bully. Number two, he refuses to learn or change.”

If that’s it, Collins probably can take his case to court and get the same ruling as Berger.

In High Point, the mayor’s troubles have to do with her personal finances. She was late paying a city utility bill.

Can City Council oust mayor? Maybe | | journalnow.com 2/2 She owes a few thousand dollars in state income taxes. A sister filed a complaint that Sims wrote her a bad check related to the settlement of another sister’s estate.

These issues, as well as Sims’ answer that her problems are nobody else’s business, bothered several others on the council. They lost confidence in the mayor’s leadership. Nevertheless, unless Sims is convicted of committing a crime, it’s highly unlikely they could get rid of her.

There are better ways to go. The best, of course, is simply to wait for the next election and let the voters decide. That’s one year away in High Point.

Some cities’ ordinances — Greensboro’s, for instance — include provisions for recall elections.

That’s why one commissioner in New Hanover County voted against removing Berger. He thought it would be better for voters to initiate a recall. He’s right. That’s a more democratic process than a 3-2 vote by the board itself (Berger voted against his own removal).

Amotion lends itself to abuse. Does one member disagree with the majority too often? Does he raise hard questions? Do the others just not like him? Those aren’t reasons for getting rid of him.

So, it’s good there’s judicial oversight that allows an impartial authority to weigh in. But it would be better for the General Assembly to clear up this process and retire the archaic common-law practice of amotion. It should enact recall election provisions for all local governments and let the voters decide if someone needs to go.

City councilman could be removed | News | newsargus.com 1/2

City councilman could be removed By Rochelle Moore Goldsboro News-Argus – April 26, 2018

Councilman Antonio Williams could lose his seat on the Goldsboro City Council as early as Monday if he fails to show proof that he lives in the district he represents.

The council voted 6-0 Wednesday afternoon to give Williams 48 hours to provide the city clerk with two legal documents -- a driver’s license or water, electric or cable bill -- that verify his residency within District 1.

Williams has until Friday at 4:30 p.m. to provide the information.

By Monday morning, when the council meets at 8 a.m., Williams could be disqualified to serve on the council if he does not provide documentation or if he is found to not be living in the district, said Mayor Chuck Allen.

“By default, he would have to be off the council,” Allen said. “If he doesn’t provide any substantial proof by Monday morning, he would not be on the council. It’s just the law.”

City attorney Ron Lawrence told the council during a special called meeting Wednesday that state law -- N.C. General Statute 160A-59 -- requires a council member to live in the district he or she represents.

“If a council member no longer resides in the district, then they are unable to hold that office,” Lawrence said. “It becomes an immediate vacancy. In fact, the statute says, it is ‘ipso facto vacant.’ There’s not an argument about it.”

At that point and time, he added, the council, by majority vote, would select someone else from the district to fill that position.

Allen said Williams did not attend the meeting due to a prior commitment, and Williams did not return a phone call seeking comment.

The Wednesday meeting was called after the city received an unsigned, three-page letter, written by “Goldsboro, NC District 1 Citizens,” which alleges that Williams does not live in the district. Other allegations were included in the letter, including concerns that residents view Williams as not representing the interests of the people who elected him to office.

Lawrence said the question about Williams’ residency was the only allegation he believed needed to be addressed, in part because any votes Williams has made could be voided if he is not a resident of District 1.

Lawrence said he met with Williams last week, just days after the city council received the letter.

“He told me that he did reside in the district,” Lawrence said. “I did ask him for an address and he politely declined to give me an address.” According to Wayne County Board of Elections records, Williams, who was elected to office in 2015, listed 143 N. Center St. as his residence in 2015. Later in 2015, he changed his address to 304 Wilmington Ave., said Dane Beavers, Wayne County BOE director. No other address changes have been submitted since that time, Beavers said.

Allen said he talked with the owner of 304 Wilmington Ave., who said Williams is not living at the residence.

Property owner Shirley Edwards confirmed that Williams moved into the house in 2015, and lived there about a year.

“He does not live in my house,” Edwards said.

Allen recommended to council the 48-hour window for Williams to submit documentation to the city clerk, which will then be sent to members of the council to review prior to the Monday meeting.

City councilman could be removed | News | newsargus.com 2/2

Councilman Bevan Foster asked if the 48 hours would start when Williams is contacted. Allen said the 48 hours is ample time, since the council will not discuss the issue until Monday morning.

“To be quite frank, he has it or he doesn’t have it,” Allen said. “He lives there or he doesn’t live there. It’s incumbent on him to give us the information.”

Foster read a signed, notarized letter from Williams during the meeting. In the letter, Williams said he lived in District 1 before he was elected to office and that he continues to live in the district.

Councilman David Ham asked if an address was listed in the letter. Foster said no address was provided. Foster asked the city attorney if the council was following the law and asked what process the council is supposed to take.

Lawrence said he consulted with the University of North Carolina School of Government, which confirmed that the inquiry into Williams’ residency is allowed. He also said state law and the city’s charter do not outline steps to be taken when a council member’s residency falls into question.

“I just want to make sure we’re not opening ourselves up to any litigation or anything,” Foster said. Lawrence said Williams can file suit to challenge his seat and any related council decision.

Councilman Gene Aycock said the council meeting would not have taken place if Williams had previously provided verification of his residency.

“On last Friday, if he had given Ron (Lawrence) a valid address, this meeting would not have been necessary,” Aycock said.

Council begins process to oust Williams | | fayobserver.com 1/3

Council begins process to oust Williams By Monica Vendituoli The Fayetteville Observer – April 17, 2018

The Fayetteville City Council voted unanimously 9-0 Monday night to go forward with the amotion process to remove councilman Tyrone Williams from office.

But later the five-member Ethics Commission decided to delay its investigation of Williams’ after the councilman withdrew his prior recusal from voting on downtown development projects.

“This letter is to inform you that I am withdrawing my recusal from voting on matters related to the Prince Charles Hotel, the parking deck, the construction of the baseball stadium in downtown Fayetteville, and all related matters,” Williams wrote in a letter to the council. “I know of no conflict of interest or any legal impediment that would cause me to refrain from exercising the right and responsibility to vote on all matters before the City Council as the duly-elected District 2 representative.”

And another letter to the council from Kris Poppe, who is Williams’ lawyer, said that Williams never had a financial interest in Prince Charles Holdings.

The 48-year-old counci man’s statements Monday on his lack of conflict of interest and financial interest in Prince Charles Holdings counter those he made in a March 26 letter to the council.

“I am writing this to again formally inform you that I will be recusing myself in any votes involving Prince Charles Holdings,” Williams wrote. “As I indicated to you and the City Attorney in early February, I have a financial interest with regards to this entity and that I would be recusing myself, as to avoid any possible appearance of a conflict.” Prince Charles Holdings, a Durham-based investment group, is spending more than $65 million in private projects surrounding a Minor League baseball stadium being built in the 400 block of Hay Street.

The group’s projects include turning the Prince Charles Hotel into apartments and building the tallest building in downtown Fayetteville.

In December, Williams, Jordan Jones and businessman T.J. Jenkins met. In an audiotape secretly recorded by Jones, the hotel’s project manager, Williams is heard asking Jones for $15,000 to clear up a minor legal issue with the Prince Charles Hotel title.

After hearing the tape, every member of the council on April 9 asked Williams to resign. Williams refused and said he plans on finishing out the remainder of his two-year term.

Mayor Mitch Colvin called the meeting Monday night to have the city’s legal team discuss removing Williams through the amotion process.

Karen McDonald, the city attorney, said the amotion process is the only way Williams can be removed from office.

“This process hasn’t been used often,” McDonald said.

The town of Hope Mills removed former commissioner Tonzie Collins via amotion in 2013.

The council first will need to issue a petition for Williams’ amotion that will need to be signed by McDonald.

Williams will then need to be served with the petition in person either by City Clerk Pamela Megill or Fayetteville Police Chief Gina Hawkins.

Council begins process to oust Williams | | fayobserver.com 2/3

A notice period is required prior to a quasi-judicial hearing. Williams and other council members will be able to speak during the hearing.

After the hearing, Williams can be removed by a majority vote it the council finds “just cause” to do so.

McDonald said it will be up to the council to determine if Williams took part in misconduct in office during the hearing.

She said the state law’s definition of misconduct is very general.

Williams can then appeal the council’s decision in Cumberland County Superior Court. McDonald also said that any additional investigation of Williams’ actions, including one by the city’s Ethics Commission or by a third party, would have to occur in concert with the amotion process.

If not, the evidence found by an outside investigation may not be allowed to be presented during the quasi-judicial hearing.

Williams, Colvin, councilman Larry Wright and councilman D.J. Haire spoke in favor of having a third party examine the incident.

“I would feel good to know all the facts and have a third party come in, and I think that is worth the investment of this city going forward,” Wright said.

Colvin mentioned that the N.C. Office of the State Auditor could look into the incident at no additional cost to taxpayers. They mayor said he wants to make sure the council can ask Prince Charles Holdings representatives questions.

“I can’t make a decision as important as taking away who District 2 sent here without having a full conversation,” Colvin said. “The PCH group are our financial partners. They have taxpayers involved in that project and they need to be able to answer questions.”

Council members Tisha Waddell, Bill Crisp and Jim Arp spoke out strongly against having a third party outside of the city get involved.

“I think that it is messy because our peer does not seem to have shot straight with us from the beginning and I think that’s what makes it difficult for us to sit here and expect for an independent review to give us any new information,” Waddell said.

Crisp alluded to more issues involving Williams that a third party investigation might uncover.

“There are other things about Mr. Williams life that haven’t come out yet,” Crisp said, “and he may not want some of them to come out.”

Arp said he would want the third party to investigate other issues that he did not expand upon.

“If that is the decision of this board, Mr. Mayor, then I will ask that the scope of that investigation be expanded to include other things that I think should be looked at,” Arp said.

The council did not end up voting on whether to involve a third party, and ended the meeting by voting 9-0 to have the city staff move forward with the amotion process involving the Ethics Commission.

Williams was not allowed to vote on the decision.

McDonald said she expects to have the petition ready for the council to vote on by the council’s agenda briefing meeting scheduled for 4 p.m. Wednesday at City Hall.

After Monday’s meeting, the Ethics Commission met to discuss how it will investigate Williams’ alleged conflict of interest.

The Ethics Commission was created in 2010 due to the 2007 controversy dubbed “ticket- gate” in which a traffic citation given to a friend of then-Mayor Tony Chavonne was improperly voided by police.

Council begins process to oust Williams | | fayobserver.com 3/3

Its five members consist of Fayetteville lawyer David Bock, accountant Dale Knowles, Stanley Dodson, a retired vice president at Cape Fear Valley Health Systems, Dr. Carol Jones, and Joseph Levister Jr., vice president of administrative services at Fayetteville Technical Community College.

The Ethics Commission unanimously voted to table its investigation until it can get further direction for the council given Williams’ latest assertion that he never actually had a conflict of interest with Prince Charles Holdings.

McDonald said the council can vote to excuse Williams from voting on downtown development projects in the future.

Coates' Canons Blog: I Second that Amotion

By Frayda Bluestein

Article: https://canons.sog.unc.edu/i-second-that-amotion/

This entry was posted on October 28, 2009 and is filed under Board Member Powers & Authority, Board Structure & Procedures, Ethics & Conflicts, Miscellaneous

UPDATE September 2013:  A superior court judge affirmed the power of amotion for removal of a county commissioner. The judge’s order is summarizedhere.

With apologies to Smokey Robinson and the Miracles, and with assurances that I haven’t left out the space in “a motion,” this post addresses a question about whether a North Carolina local governing board has authority to oust one of its members. As noted in Fleming Bell’s earlier post,state law now requires local governments to enact codes of ethics. A question that arises is whether a local code can include a provision for removal of a member who violates the code or engages in other behavior deemed sufficient for removal. There is no specific authority for such removal by the body itself.

David Lawrence wrote an article in 1980 that discusses three possible grounds for removing local elected officials from office. Removing Local Elected Officials from Office in North Carolina, Wake Forest L. Rev. Vol. 16, No. 4 (1980), pp. 547-561. One of the grounds he discusses is “amotion,” which has its roots in English common law and is based on an inherent right of a corporation to remove an officer for specific types of malfeasance. As David notes in his article (the pertinent section is excerpted here), several North Carolina cases applied the doctrine in local government settings 100 years ago. The most recent North Carolina case to mention the doctrine was in 1935, though the case involved the removal of an appointed, rather than an elected official. (Stephens v. Dowell, 208 N.C. 555, 561 (1935), “The power to remove a corporate officer from his office for reasonable and just cause is one of the common law incidents of all corporations.” emphasis in original, citing Burke v. Jenkins, 148 N.C. 25, 27 (1908), and 1 Dillon Mun. Corp. (4 ed) sec. 240.)

The current edition of McQuillin’s treatise on Municipal Corporations recognizes the basic power of amotion, and states that “in the absence of either express grant or of express or implied limitation of authority, a municipal corporation…possesses the incidental power to remove corporate officers for cause, whether elected by the corporation or by the people.” Section 12.230,  3rd ed. (2002). Still, it’s hard to find cases within the last 50 years that rely solely on the common law authority for removal, especially since many local governments have state statutes or charter provisions that provide for removal on other specified grounds. The most recent case I found  that cites to the power of amotion does so in reference to a private, rather than a municipal corporation. See, State ex rel. Smith v. Evans, 547 S.E.2d 278, W.Va.(2001).

 

It’s unclear whether a North Carolina court would uphold removal of a board member based on amotion as enunciated in these old cases. Despite their vintage, and in the absence of a specific legislative displacement of the common law, a court might find that the inherent power still exists, especially if a case presented a clear need to preserve the integrity of the board and serve the public interest, with no other available remedy. (North Carolina provides no general right of public recall of elected officials, though a few cities have charter provisions allowing it.)

Should removal be included in a local code of ethics as a remedy for violation of the code or other misdeeds? Adopting a local code that includes the power of removal cannot legally create authority that doesn’t otherwise exist. It may serve to restate the common law grounds for removal, but it would still be up to a court, in the event of a legal challenge, to determine whether the authority exists and whether it has been properly exercised.

If a local board chooses to rely on common law authority for removal, a local ethics code could establish the standards for

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removal of a board member, and set out the process that would be used. This would be extremely important. The common law grounds for removal by amotion as delineated in the original case (in 1758) are quite specific. As summarized in the Lawrence article, they are: “1) Offenses not related to the office but so ‘infamous…as to render the offender unfit’ for any public office; 2) Offenses amounting to noncriminal misconduct in office; and 3) Offenses that both are criminal and constitute misconduct in office.” Lawrence, p. 555, citing Rex. V. Richardson, 97 Eng. Rep. 426, 438 (K.B. 1758).  Since there is no authority for removal based on any other grounds (removal “for cause” is a common standard in other states), a local code might need to set out these grounds as guidance about the allowable bases for removal. In addition, the cases from North Carolina and elsewhere make clear that summary removal is not a proper exercise of this inherent power.  A local code allowing removal should lay out the process for providing notice and an opportunity for a response.

Removal isn’t the only remedy for code of ethics violations. Indeed, codes may be aspirational rather than prohibitive (See,Bell, Ethics, Conflicts, and Offices: A Guide for Local Officials, p. 36), and in such cases, no remedy for a violation would be necessary. State law creates independent liability for some types of board member misdeeds, especially those involving financial interests. (See, e.g., G.S. 14-234, 234.1, and G.S. 133-32.) A separate statute, G.S. 14-230, creates liability and possible removal as a sanction for willful failure to discharge the duties of the office. Other actions may cause a person to lose his or her eligibility for office (such as not being a resident or committing a felony), in which case an action may be brought to determine the person’s right to remain in office. (See section I of the Lawrence article discussing the civil action in the nature of “quo warranto.”)

And finally, a board is free to censure a fellow member, that is, to express in a resolution its displeasure or disapproval of a member’s actions. While this may not seem to be much in the way of sanction it does provide information relevant to the public at large, which may choose to use its power of removal when the board member is up for reelection.

Links

canons.sog.unc.edu/?p=7299en.wikipedia.org/wiki/I_Second_That_Emotionwww.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-234.htmlwww.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-234.1.htmlwww.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_133/GS_133-32.htmlwww.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-230.html

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Copyright © 2009 to present School of Government at the University of North Carolina. All rights reserved.This blog post is published and posted online by the School of Government to address issues of interest to government officials. This blog post is for educational and informational use and may be used for those purposes without permission by providing acknowledgment of its source. Use of this blog post for commercial purposes is prohibited.

To browse a complete catalog of School of Government publications, please visit the School’s website at www.sog.unc.edu or contact the Bookstore, School of Government, CB# 3330 Knapp-Sanders Building, UNC Chapel Hill, Chapel Hill, NC 27599-3330; e-mail sales@sog.unc.edu; telephone 919.966.4119; or fax 919.962.2707.

This blog post is published and posted online by the School of Government to address issues of interest to government officials. This blog post is for educational and informational use and may be used for those purposes without permission by providing acknowledgment of its source. Use of this blog post for commercial purposes is prohibited.

To browse a complete catalog of School of Government publications, please visit the School’s website at www.sog.unc.edu or contact the Bookstore, School of Government, CB# 3330 Knapp-Sanders Building, UNC Chapel Hill, Chapel Hill, NC 27599-3330; e-mail sales@sog.unc.edu; telephone 919.966.4119; or fax 919.962.2707.

Coates' Canons Blog: Removing an Elected Official by Amotion: Judge Says It Can Be Done

By Frayda Bluestein

Article: https://canons.sog.unc.edu/removing-an-elected-official-by-amotion-judge-says-it-can-be-done/

This entry was posted on September 12, 2013 and is filed under Board Member Powers & Authority, Board Structure & Procedures, Ethics & Conflicts, Miscellaneous

In 2009 I wrote a blog postsummarizing the common law doctrine of “amotion” which was recognized in several old North Carolina cases as an inherent power of a board to remove one of its members. Since there had been no legislative or judicial sanction of board removal of an elected official since the last case involving amotion (decided in 1935), I said it was “unclear” whether a court would uphold a local government board’s removal of one its members by amotion.

Last week, Special Superior Court Judge James Gale issued an order in a case involving the removal of New Hanover County Commissioner Brian Berger.  Reviewing the board’s 3-2 decision to remove Mr. Berger, the judge ruled that “[a]n 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.” Brian Berger v. New Hanover County Board of Commissioners, 13 CVS 1942 (Sept. 5, 2013), slip op. at 30. Although the judge upheld the validity of the process that New Hanover developed for the amotion proceeding in general, he voided the Commissioners’ decision because it was based, in part, on findings of fact that relied on personal experiences and impressions of two commissioners, rather than on objective evidence presented at the hearing. The judge’s order restores Commissioner Berger to his elected office, but the order’s “remand” leaves open the possibility that the board could redo the amotion proceeding. The order provides specific guidance on the standard for removal, as well as the essential elements of a valid amotion process. This blog post summarizes Judge Gale’s blueprint for removal by amotion.

Amotion is a Viable Power for Local Government Boards

Judge Gale concluded that 1) the North Carolina Supreme Court has recognized the validity of amotion as a method of removing an elected official; 2) the trial court is bound to follow the holdings in those cases; 3) state law (G.S. 4-1) provides that common law principles are in full force absent extraordinary circumstances; and 4) the power is equally available to cities and counties. The judge concluded, “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.” Slip op. at 17.

Requirements for a Valid Amotion Proceeding

Due Process

A valid amotion proceeding must include notice, a hearing, and fact finding by an impartial decision-maker based on evidence presented at the hearing. This may sound familiar as they are the basic requirements of a quasi-judicial hearing. The judge drew these standards from the earlier North Carolina amotion cases. These protections typically accompany a government action that implicates a constitutionally protected property or liberty interest. It’s important to note (as the county argued) that an elected official does not have a property right in his or her office.  This has been the consistent rule in cases where removal occurs because the office itself is eliminated. See, Mial v. Ellington, 134 N.C. 131 (1903). Elimination of an office is a legislative decision. The removal for cause while in office, however, is considered a quasi-judicial action, and courts have consistently required that the basic elements of due process must be afforded.

Notice and Hearing

Since amotion is not a statutory procedure, the few existing amotion cases, and the general case law about quasi-judicial

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hearings, provide the only guidance about what process is legally required.  New Hanover County’s process consisted of 1) adoption of a “Petition in Amotion to Remove Brian Berger,” which included the basic allegations in support of removal, as well as affidavits and exhibits relating to those allegations, 2) delivery of the Petition to Commissioner Berger along with a Notice of Hearing and Rules and Procedures for the hearing, which was scheduled about a month later, and 3) conduct of a hearing at which Mr. Berger was represented by counsel. Both the board and Mr. Berger had the opportunity to present evidence and cross-examine witnesses. The court concluded that this procedural structure was legally sufficient.

Burden of Proof and Rules of Evidence

The order makes clear that the burden of proof rests with the board. The board lays out the basis for removal in the petition or motion for removal and provides evidence in support at the hearing. The board member then has the opportunity to rebut the evidence and provide additional evidence, and the board must, in the end, make an unbiased decision about whether there is a sufficient case, supported by the evidence, for removal.

Consistent with other cases involving quasi-judicial hearings, the court rejected Berger’s assertion that the board was required to follow the North Carolina Rules of Evidence.

Impartial Decision-Maker

The court made two important findings regarding the impartiality requirement.

First, the very same board that initiates removal by amotion is considered to be an impartial decision-maker, as long as its decision is unbiased and based on the objective evidence presented at the hearing. It may seem a tall order for board members who voted to initiate removal to maintain an open mind about the evidence presented at the hearing. The order notes that a person is not considered to be biased merely because he or she has prior knowledge of the situation. Despite the challenge of remaining open to the possibility that the evidence does not support removal, the board is the only body that can make the final decision.

Second, the decision is invalid if any board member’s vote is based on or affected by personal opinions or impressions that are not supported by evidence in the record. To say a person is biased, in the context of a quasi-judicial proceeding, means that he or she has a predisposition to a particular result and is unable or unwilling to apply the legal standard to the evidence presented. As a separate matter, decision-makers must also be careful to apply only the evidence, and not their personal impressions about the matter at hand. The judge did not find that any board member was biased. Instead, he invalidated and remanded the case solely because two of the findings of fact were based on board members’ statements of personal experience rather than evidence from the hearing. The order concludes: “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.” Slip op. at 21.

Standard for Removal

What evidence or behavior must be presented to make the case for removing an elected official from office? Judge Gale concludes that there is no categorical or definitive answer to this question. Cases have used the concept of “just cause” – a standard that is familiar to those who deal with due process hearings in the context of employee dismissals. It’s clear from the prior North Carolina cases and from Judge Gale’s order that removing an elected official requires more than simply poor performance. It may be appropriate to think of the standard as just cause “plus.” The order articulates a good reason for a heightened standard: “[I]t seems clear that a court called upon to [review an amotion decision] 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.” Slip op. at 25.

The order emphasizes that the “sufficiency and competency” of the evidence presented must relate to the duties of the elected office.  The order states, “[T]he 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

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that is sufficiently tied to the duties of the elected office from which an elected official is being removed.” Slip op. at 26. The court went on to give suggestions about evidence that may be more or less important, which I’ve paraphrased and quoted below:

Evidence about one’s personal life, viewed in isolation, may not seem relevant, but may provide context for issues that relate to the person’s behavior in office.Evidence about criminal charges that do not result in convictions will not be particularly strong.The connection between the evidence and the duties of office should be explicit in the record. “[T]he 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.”  Slip op. at 27.

The order also notes, almost as a suggestion to the county, that boards have options short of removal to address the behavior of board members whose actions don’t meet the appropriately high standard for removal. ”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.”  Slip op. at 28 (citations omitted).

Conclusion

Elected boards sometimes perceive one of their members in a bad light. The prospect of being able to remove an uncooperative, annoying, absentee, or even truly misbehaving member may seem appealing. Judge Gale’s careful analysis provides a helpful reality check for those considering such a process. Although this trial court level decision is not binding beyond this case, it provides support for the notion that removal through amotion is an option, but also for the notion that it must be undertaken only in an extreme case, with sufficient evidence to support an impartial decision.

 

 

 

 

Links

canons.sog.unc.edu/?p=1139canons.sog.unc.edu/wp-content/uploads/2013/09/Berger_OrderonCertiorariReview_9.51.pdfwww.ncleg.net/gascripts/statutes/statutelookup.pl?statute=4-1

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Copyright © 2009 to present School of Government at the University of North Carolina. All rights reserved.This blog post is published and posted online by the School of Government to address issues of interest to government officials. This blog post is for educational and informational use and may be used for those purposes without permission by providing acknowledgment of its source. Use of this blog post for commercial purposes is prohibited.

To browse a complete catalog of School of Government publications, please visit the School’s website at www.sog.unc.edu or contact the Bookstore, School of Government, CB# 3330 Knapp-Sanders Building, UNC Chapel Hill, Chapel Hill, NC 27599-3330; e-mail sales@sog.unc.edu; telephone 919.966.4119; or fax 919.962.2707.

This blog post is published and posted online by the School of Government to address issues of interest to government officials. This blog post is for educational and informational use and may be used for those purposes without permission by providing acknowledgment of its source. Use of this blog post for commercial purposes is prohibited.

To browse a complete catalog of School of Government publications, please visit the School’s website at www.sog.unc.edu or contact the Bookstore, School of Government, CB# 3330 Knapp-Sanders Building, UNC Chapel Hill, Chapel Hill, NC 27599-3330; e-mail sales@sog.unc.edu; telephone 919.966.4119; or fax 919.962.2707.

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e Behavior/Action Remedy Notes • Violating Code of Ethics

• Interrupting employee work or chain of command

• Likely criminal conduct

• Extreme public behavior that embarrasses the municipality

Private discussion Can be confidential so long as the meeting is not an “official meeting” under the open meetings law.

• Violating Code of Ethics

• Interrupting employee work or chain of command

• Likely criminal conduct

• Extreme public behavior that embarrasses the municipality

Censure/no confidence vote

Must be done during open session.

• Regular interruptions to employee work or chain of command

Prohibit access to municipal employees and/or buildings

The Manager likely has the authority to do this on his/her own authority, but as a practical matter, this should only be done pursuant to a resolution adopted by the governing board in open session.

• Violating Code of Ethics

• Interrupting employee work or chain of command

• Likely criminal conduct

• Extreme public behavior that embarrasses the municipality

Seek local legislation to authorize a recall election

Over a period of time, there must be a documented pattern of:

• Violating Code of Ethics;

• Regularly and significantly interrupting employee work or chain of command;

• Likely criminal conduct; and/or

• Extreme public behavior that embarrasses the Town.

Removal (amotion) The vote begins this process and the hearing must be conducted by the governing board in open session. High evidentiary burden; must avoid the appearance of any political motives. As a practical matter, this is costly both in terms of monetary cost and staff and elected official time.

G.S. § 143-318.11(a)(6): The governing board “may hold a closed session and exclude the public only when a closed session is required: . . . (6) To consider the qualifications, competence, performance, character, fitness, a conditions of appointment, or conditions of initial employment of an individual public officer or employee or prospective public officer or employee; or to hear or investigate a complaint, charge, or grievance by or against an individual public officer or employee. General personnel policy issues may not be considered in a closed session. A public body may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy among its own membership except in an open meeting. Final action making an appointment or discharge or removal by a public body having final authority for the appointment or discharge or removal shall be taken in an open meeting.”

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Behavior/Action Remedy Notes Likely criminal conduct Refer the matter to the

Sheriff’s Department and the DA

This should only be done if criminal activity is suspected. It should not be in lieu of or part of any disciplinary action being taken by the governing board.

• Extreme cases of interrupting employee work or chain of command

• Concern about whether the person is or likely to become dangerous to himself or others

Seek a civil no-contact order

G.S. Chpt. 95, Art. 23 This should only be pursued if we believe that municipal employees have suffered “unlawful conduct”.