Removing elected official difficult in NC

Jun. 29, 2013 @ 04:41 PM

Waxhaw Mayor Daune Gardner on Tuesday became the second Union County town leader to be asked to resign recently.

The Waxhaw Town Commission voted unanimously to censure Gardner. The action opened opportunity for a third-party investigator to look at financial statements and other evidence to determine if Gardner broke town policy and ethics.

Last month, the Indian Trail Town Council censured Mayor Michael Alvarez. After a Feb. 16 meeting, Alvarez told council members, residents and media that a Union County Sheriff’s deputy threatened him. When pressured by his fellow board members in May, Alvarez said the deputy never threatened him.

In both cases, fellow elected officials and residents called for the mayors to leave office or be removed from their position. But ousting an elected official against their will is quite difficult in North Carolina.

Elected officials are put into office by voters. If a board or council has the power to remove one of its own, it technically subverts the public will.

Frayda Bluestein is a Public Law and Government professor at the University of North Carolina’s School of Government. She explained why removing someone from office is not easy.

“Local government has no specific authority granted it by the legislature to remove elected officials,” Bluestein said.

Our state lawmakers wrote no process for a local government to remove one of its own members. In cases where an elected official was removed, it required an act of the legislature.

A local bill initiating a recall vote is the most common method of removing someone from office. A bill is introduced in the N.C. General Assembly while it is in session. A special election is held. Voters can back the incumbent or select a new candidate to be installed in office.

But the NCGA will soon finish budget negotiations and end this year’s session. Waxhaw and Indian Trail officials have a limited amount of time to act if they intend to appeal for a recall election.

Though there are no contemporary state laws for local governments to remove members from office, there is still a way.

Amotion is an old piece of common law in North Carolina, Bluestein said. It is based on old English law and became part of the state’s code of laws. It is rarely used.

“It’s basically a law saying that if an elected official has displayed a fairly high level of failure to uphold the duties and requirements of their office, that offical can be removed,” Bluestein said.

But those “failures” are largely undefined. They can be for ethics violations, criminal offenses or both.

“It basically has to be something so morally and ethically abhorrent that the person’s continued service in that position reflects poorly on the board and the group the person represents,” she said.

The most recent example of amotion was earlier this spring to unseat Brian Berger from the New Hanover Board of County Commissioners. The second most recent successful use was in 1935.

New Hanover County Commissioner Jonathan Barfield Jr. said he thinks the amotion process is unfair. Barfield asked for Berger’s resignation in 2011. Berger was charged with a DWI in late 2012 and the case is continued. In June 2011, he was charged with assault on a female. A jury later cleared him of charges he violated a protective order taken out by the assault victim. Current commissioners have publicly stated they believe Berger has a mental illness.

New Hanover County’s state delegation refused to initiate a local bill for a recall election, Barfield said. So in April, New Hanover Commission Chairman Woody White and two other commissioners began the amotion process to remove Berger from office.

Three commissioners worked with staff and the county attorney to assemble an amotion process, Barfield said. The commission voted to adopt the process in April. Barfield said he spoke against it.

In May, commissioners held a hearing that ended in a 3-2 vote to remove Berger. Barfield voted against it.

“It was supposed to be a quasi-judicial process, which means they were supposed to enter the meeting without a pre-conceived decision. But how can you make an impartial decision in the process when you asked for the process to take place?” Barfield said.

In a quasi-judicial proceeding, the board acts as triers of fact. While they are not a panel of judges, the commissioners did vote to remove a commissioner after a majority stated they wanted him gone.

Berger since sued the New Hanover Board of Commissioners for their amotion removal. After a lower court sided with the board, Berger appealed to a higher court. The suit is ongoing.

So, if Waxhaw or Indian Trail officials use amotion to remove their mayors, the method is mostly untried, and therefore, the process is largely undefined.