A motion for amotion
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since the law has not been repealed either by statute or by subsequent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
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.