Former commissioner Brian Berger is back in his seat on the New Hanover County Board of Commissioners.
Berger is reinstated pending further proper action to remove him, as written in a 31-page ruling on Thursday, Sept. 5.
Board members will likely discuss the next step in the amotion process, which has been ongoing since April.
James L. Gale, Special Superior Court Judge for Complex Business Cases, made the ruling after final documents were filed with the North Carolina Business Court during the end of August.
Gale previously said the only authority the court had would be to send the case back to the board for an additional hearing.
Gale’s order rules in favor of the county on several issues, but found that comments made by vice chairwoman Beth Dawson and Commissioner Thomas Wolfe violated due process, because the comments included personal experiences with unnamed county staff members instead of only presented evidence.
The board is waiting to make a decision about whether another amotion hearing will be held, and will likely discuss the next step during the Thursday, Sept. 12 agenda briefing, Chairman Woody White said during a Friday, Sept. 6 press conference.
“The reasonable concerns over Mr. Berger’s potential mental health problems have not gone away,” White said. “... It is important that if we move forward, that our decision be confined only to evidence presented. Alternatively, a decision to wait before moving to another hearing could be influenced by Mr. Berger, or his attorney, providing us with some assurances that any mental health issue he might have, has been addressed.”
Along with White, Attorney John Martin, Dawson and Wolfe were present at the press conference, but did not speak.
“The county has spent no money on this process at this point, but when it does, those documents will be public and, of course, made available,” White said.
He added later that Martin, who is representing the board of commissioners, “does not work for free.” Martin, of Ward and Smith, P.A., will be paid $295 per hour.
County staff time, which also has not been calculated, is another monetary factor in the process.
“Mr. Berger has caused unknowable amounts of time to be wasted by county staff,” White said. “He’s the reason we’re here. Prior to the amotion hearing, his harassment of county staff was immeasurable, so no I do not know how much time Mr. Berger has caused our staff to have to focus on this, but it’s too much.”
Commissioner Jonathan Barfield Jr., who voted against the amotion to remove Berger, did not attend the conference, but said earlier on Friday that he has not been surprised by any part of the process.
“If our board decides to go down this road again, I think it’s going to continue to stay in the courts,” Barfield said. “And my comment before was that we’re going to wind up in November 2014, and we’re still in the same place fighting about this. … I don’t see how the county wins in this process.”
Another option to remove Berger, which was brought up during the process, was to have local state representatives pass a local recall statute and have Berger’s removal up for public vote on the November 2013 ballot.
“The majority of people definitely want Commissioner Berger to resign from the board, but what I’m hearing from people is that they respect the right process,” Barfield said. “And many are commenting that let the voters remove him and understanding that elections do have consequences.”
Berger’s attorney, Christopher Anglin of Anglin Law Firm, said on Friday that he and Berger are pleased with the order.
“Brian is very happy to have his seat back,” Anglin said. “… This is what we always expected.”
About 90 miles away, town commissioners in Hope Mills, N.C., voted in July to proceed with an amotion hearing to remove Commissioner Tonzie Collins from office.
“This amotion proceeding hadn’t been used in decades against a publicly elected official and then within a month of Brian being removed, it pops up again down in Hope Mills,” Anglin said. “My question is, where does it stop?”
Berger, who has not returned calls for comment, issued a 1,250-word statement about the order after Friday’s press conference.
“I am eager to return to public service and being a public servant should involve sacrifice, not land deals and more riches for attorneys and special interests in government,” Berger stated.
On Sept. 9, Anglin filed a motion requesting attorney’s court fees and costs from the county citing the county’s action as an “abuse of discretion.” For the period of time Berger was removed from his seat, $3,860 was withheld for his salary as well as automotive and cell phone allowances.