One week before a judge will decide the legality of Brian Berger’s removal from the board, an attorney representing New Hanover County commissioners has filed—as expected—a brief opposing the hearing to be held in North Carolina Business Court next Tuesday.
John Martin, of Greenville-based law firm Ward and Smith, filed the brief Monday—the day it was due—in New Hanover County Superior Court, contending the county’s removal proceeding—through a process called amotion—afforded Berger due process and was legal according to North Carolina law.
The brief, referred to as a memorandum of law—which responds to a court order calling for the hearing—cites Rex v. Richardson (1758), Ellison v. Aldermen of Raleigh (1883) and Burke v. Jenkins (1908), the latter two of which were upheld by the N.C. Supreme Court, which cited the former as a common law precedent for removing a corporate officer from a board for just cause.
The memorandum also cites other arguments and facts to support the county’s case, including the board’s code of ethics adopted in 2010, incidents in which Berger has run afoul of the law since his election that same year, and evidence against him compiled as part of the amotion proceeding held in late May.
That proceeding saw the board remove Berger by a 3-2 vote after a hearing that featured testimony from two called witnesses. Commissioners Beth Dawson, Woody White and Tom Wolfe voted in favor of the removal, while Jonathan Barfield joined Berger in opposing the removal, contending it would set an unclear precedent.
Related story: Commissioners vote 3-2 to remove Berger from board
As he was afforded under the board’s adopted procedures, Berger appealed the removal, contending the hearing did not afford him due process and violated his rights under the state and U.S. constitutions. The court’s order confirming a hearing for the appeal—to be held next Tuesday, July 16—prohibited the board from appointing a replacement prior to the hearing, and the clerk of superior court from doing the same before 60 days after the hearing is decided.
Related story: State business court to hear Berger appeal in July
Along with the 26-page memorandum of law, an index of cited materials totaling 235 pages was filed, as were supporting exhibits including the board’s code of ethics and adopted amotion procedures.
After stating the county’s arguments over several pages of text, the memorandum offers a conclusion that states the amotion process was authorized by “longstanding North Carolina law”; that notice provided to Berger and the process used by the board in the hearing “were sufficient to satisfy due process”; and the court is entitled to review the board’s process, “but only under the deferential standard” afforded Berger under the amotion procedure.
Tuesday’s hearing is scheduled to be held at 1 p.m. in N.C. Business Court in Greensboro.
Previous stories:
Berger files appeal of ouster from New Hanover County Board of Commissioners
Commissioner: Berger removal process ‘untested,’ would set precedent
Berger concern prompts metal detectors, bag searches at county board meetings
Commissioners chairman calls for Berger’s resignation following incident with governor
