Thursday, May 26, 2022

Judge orders Belville officials, H2GO’s outgoing board protected from providing testimony

Simply put, the order means Belville's elected officials and H2GO's commissioners who voted in favor of the contested transfer don't have to talk.

The judge presiding over the complicated suit in which Leland is suing Belville over a contested transfer of H2GO's assets granted Belville's elected officials legislative privilege. (Port City Daily photo/Johanna Ferebee)
The judge presiding over the complicated suit in which Leland is suing Belville over a contested transfer of H2GO’s assets granted Belville’s elected officials legislative privilege. (Port City Daily photo/Johanna Ferebee)

BRUNSWICK COUNTY — Superior Court Judge Charles Henry granted elected officials in Belville legislative testimonial privilege in a consent order signed late last month.

The order effectively prevents Leland’s prosecution from eliciting information from the very individuals the town alleges orchestrated a contested transfer of assets in 2017.

Related: In H2GO case, Leland asks court permission to withhold communication records

Brunswick Regional Water and Sewer H2GO’s outgoing board voted to transfer its $60 million assets to the town of Belville in November 2017. Leland is suing Belville over the transfer its lawyers and leaders characterize as illegal.

Legality of the transfer

Judge Henry, assigned to the case last spring after it was designated as “exceptional” under Rule 2.1 of the General Rules of Practice, signed a consent order that grants several elected officials “legislative immunity.”

The consent order, signed last Thursday, applies to the following current and former elected officials: Belville Mayor Mike Allen, former Belville Commissioner Joe Breault, H2GO Commissioner Ron Jenkins, and two former H2GO commissioners — Chairman William Browning and Carl Antos.

Citing case law, the consent order grants these officials legislative immunity. This can protect elected officials from being compelled to testify about their “actions, intentions, and motives” in the “sphere of legitimate legislative activity.”

Leland’s case against Belville hinges on the alleged illegal nature of the November 2018 transfer. With no public hearings on the matter, H2GO voted 3-2 to transfer its assets, and Belville accepted, in under 14 hours. Former commissioners Browning and Antos, and Jenkins — a current board member — voted to approve the transfer.

To make this happen, Leland alleges H2GO’s outgoing board broke North Carolina’s Open Meetings Law. On Jan. 3, Judge Henry granted Leland’s request to stay the claim of an open meetings violation. (Leland can still reopen the claim if it’s unsuccessful litigating its remaining claims against Belville.)

Immunity

On Dec. 3, Leland asked the court to grant the town a protective order. This would prevent the disclosure of information in the event Belville is found to be abusing discovery rights, an abuse Leland argues is happening. As of this week, the case file showed no order yet in response to Leland’s request.

Also, no Leland officials have been granted similar testimonial privilege, though Belville has sought communication records from them, court filings show.

Testimonial privilege covers legitimate legislative activity — activity Leland still maintains is illegitimate. Regardless, both parties agreed to extend legislative testimonial privilege to Belville’s elected officials and H2GO commissioners who voted in favor of the transfer.

All officials, according to the consent order, will claim legislative privilege if any testimony about the transfer is sought. Because Judge Henry states the court will not hold the elected officials in contempt of court, the officials are protected from providing testimonial evidence.


Send tips and comments to Johanna Ferebee at johanna@localvoicemedia.com

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