- Published on Wednesday, 22 May 2013 23:22
- Written by Super User
By WILLARD KILLOUGH III
NEW HANOVER CTY - The New Hanover County Board of Commissioners voted to remove Commissioner Brian Berger from office during an Amotion hearing held Monday May 20, following their regular meeting.
The Board voted last month to censure Berger and begin the "Amotion" process to remove him from the board.
According to New Hanover County officials, "In addition to the censure, the Board adopted a resolution authorizing the issuance of a petition in amotion to remove Brian Berger from the New Hanover County Board of Commissioners; service of a notice of hearing; and adoption of a revised amotion hearing rules and procedures. Commissioner Berger was served with a copy of the petition shortly after the resolution was adopted. The hearing was scheduled for May 20."
The amotion is a quasi-judicial process and hasn't been used in North Carolina in over 100 years. County officials consulted with the State Bar and feel the process is legal.
The resolution censuring Berger stated the "County Board of Commissioners, as public officials, are charged with upholding the trust of the citizens of this County, and on December 6, 2010, Commissioner Brian Berger took an oath to support and maintain the Constitution and the laws of the United States and the Constitution and laws of North Carolina and to faithfully discharge the duties of the Office of Commissioner."
The resolution stated the Board's Code of Ethics says members should act with integrity as they exercise the functions of their offices, including but not limited to: 1) behaving consistently and with respect towards everyone with whom they interact; 2) exhibit trustworthiness; 3) live as if they are on duty as elected officials regardless of where they are or what they are doing; 4) use their best independent judgment to pursue the common good; and 5) recognize that they may not act on behalf of the Board unless specifically authorized to do so.
The resolution stated, "It has been documented that Commissioner Brian Berger, on a consistent basis, has been tardy to regularly scheduled meetings of the Board and has accrued twelve unexcused absences from December 6, 2010 to April 8, 2013" and, "Commissioner Brian Berger, in response to incidences on June 10, 2011, June 14, 2011, August 30, 2011, September 8, 2011, November 23, 2011, January 27, 2012, December 18, 2012, and January 16, 2013 has incurred repeated criminal charges pertaining to disturbances, court order compliance, and driving while intoxicated, thereby creating serious distractions to conducting public business."
The resolution stated, "Commissioner Brian Berger has, without any supporting evidence, repeatedly made completely unfounded and totally groundless defamatory statements against County officials, citizens, and staff in person, printed correspondence, emails and text messages" and, "Commissioner Brian Berger has failed to fully repay monies owed to the County according to the travel policy resolution unanimously adopted by the Board on June 18, 2012."
On one occasion Berger approached North Carolina Pat McCrory on stage a function in Wilmington and presented him with a manifesto containing allegations. The situation made those on stage very uncomfortable. Chairman Woody White said Berger was drooling from the mouth.
The resolution also referenced a previous call from the Board for Berger to resign in the best interest "of the County and its citizens, and he declined to do so" and, "On March 23, 2013, the New Hanover County Republican Party adopted a resolution "censuring and repudiating the actions of Brian Berger" and called "for his immediate resignation as a member of the County Commissioners."
The Board voted four to one to adopt the resolution with Berger voting no.
The Board also voted to adopt a resolution adopting "amotion hearing rules and procedures and issuing petition and setting an amotion hearing regarding commissioner Brian Berger."
The resolution stated in part, "The Board of County Commissioners has determined that for purposes of accountability, consistent with applicable laws, Code of Ethics, public trust and duties, that an Amotion Hearing be scheduled to determine whether Commissioner Brian Berger is to retain his office" and,” The Board of County Commissioners desires to establish and adopt Amotion Hearing Rules and Procedures to provide and conduct a proceeding that is fair in form, appearance, and substance."
The Board voted three to two with Berger and commissioner Jonathan Barfield voting no.
Barfield later expressed concern saying the voters elected Berger and using the Amotion process was not the proper route to go by having the Board vote to remove Berger from the voters seat.
Berger said during the meeting, "Calling into the question the legality of the New Hanover County Board of Commissioners purpose of adopting this motion, I contest and dispute the misleading and false allegations in the amotion document and this entire process."
During the over three-hour long Amotion hearing on May 20, Berger was scheduled to speak in his own defense, but following a break during the meeting he did not testify.
His attorney, Chris Anglin, made numerous objections including evidence entered into the record by the County Attorney. He claimed the accuracy of the evidence had not been established. For example, he questioned whether text messages taken from a cell phone were obtained by a county employee or the phone company itself.
County Commissioner Jonathan Barfield said, "My role to sit here as judge and jury. In my opinion I feel like the decision has already been made. I've been very clear in my displeasure with moving forward with this amotion process. I think it violates the very principle of a democracy in our country where the citizens have the ability to vote those into office that they want to serve them."
He explained, "What should have happened in my opinion. Our local delegation. Ted Davis, Rick Catlin, Tom Goolsby, could have done a local bill to allow the citizens to indeed have a recall election to recall this gentleman is they chose to do so. Unfortunately those folks that are excited about writing bills in Raleigh decided they weren't too excited about writing a bill in this particular case here. My concern is this puts to much power into four peoples hands. This old phrase that absolute power corrupts. My question is going to be, who next? It wasn't many years ago that people that looked like me didn't even have the right to vote. So those are my concerns moving forward with this to sit here and already have - in my opinion - the deck stacked in one direction and your mind made up in one direction and putting the rules in place that benefit yourself. I don't know how that serves the interest of the public."
Barfield said, "I will sit here and be a part of this proceeding but I'm washing my hands of this. This will not be on Jonathan Barfield's conscience. On his body, on his hands and on me period and I think its wrong."
Chairman Woody White said, "Unfortunately we don't have the luxury of choosing what issues come before us when we get elected Mr. Barfield."
Attorney Anglin called two witnesses, a friend of Berger's named Carolyn Bordeaux and Clerk to the Board Sheila Schult.
Anglin asked Bordeaux if she was aware that Berger was diagnosed with autism. She answered yes.
That information was not previously known prior to the hearing.
Berger commented that testimony heard during the hearing was "excruciatingly dishonest" and he was elected and, "I didn't buy my seat. My seat wasn't purchased like some seats up here. I was elected by the people to reform government because they were sick and tired of being lied to by the people sitting up here" and backroom deals.
Chairman Woody White asked Berger to be specific about his allegations of wrongdoing.
Berger said he wasn't speaking of White and was talking about the situation when he ran and, "I'm not perfect. My personal life hasn't been perfect, but when I'm up here and I vote, I vote as consistently with what I promised when I ran as I can."
He said it upsets him when people question his integrity and said, "The four of you combined have not sacrificed nearly as much as I have to keep my word."
Commissioner Thomas Wolfe said he's been in the office and, "Seen senior staff cry because of him" and his harassment of employees. He said, "I'm concerned about his erratic behavior."
Wolfe said it may result in a lengthy court battle, but it's the right thing to do and Berger would not be permitted to act the same in a corporate job and should not be allowed to in this case simply because he was elected to office.
Chairman Woody White said he was hoping to hear that Berger had chosen a path to resolve whatever condition he has that results in erratic text messages and communications with staff. He said he hoped Berger would seek help from commissioners, but heard nothing in rebuttle to abate their concerns and, "Offers us any assurance or to abate our concerns at all that something bad isn't on the horizon with Mr. Berger."
Berger said, "The only one in danger is me."
White said Berger seems normal during the day, but at 2AM will send irrational, delusional and untrue emails to staff members.
The Board voted three to two to remove Berger from his seat on the board. Berger and Barfield voted no. Chairman White and commissioners Thomas Wolfe and Beth Dawson voted in favor.
Berger has 30 days to appeal the decision in court. Berger recently switched from the Republican Party to the Libertarian Party. Since he was removed using the Amotion process, the Republican Party can make a recommendation to the board to fill that vacant seat. However, the Board ultimately can vote for any person to fill that vacancy regardless of the party recommendation. The Board will wait 30 days until Berger's time to appeal has expired before moving forward.