When the Angier Town Board of Commissioners attempts to take formal action to remove embattled mayor Lew Weatherspoon from office, it won’t be an easy task — but it can be done.
The process could take several forms including one called a motion.
According to two members of the faculty of the University of North Carolina Chapel Hill School of Government, amotion is the most logical choice.
“A motion is a common law procedure by which offices of a corporation can be removed,” said Robert Joyce. “In two North Carolina cases from 1883 and 1908, our state Supreme Court endorsed the use of a motion to remove an elected official.”
The process which is similar to the impeachment of a president, is still available as two other cases were undertaken in 2013.
“In 2013, it was used twice,” Mr. Joyce said. “A town council member in the Town of Hope Mills was removed, with no further legal action. A county commissioner was removed in New Hanover County, and, after a hearing a Superior Court judge decided that amotion continues as a vehicle for removal of an elected official.”
Since it is such an extraordinary measure, the New Hanover matter was reversed by a judge, but not because of the method used. Rather by the way the decision was reached.
According to another UNC faculty member, Frayda Bluestein, the reversal came because the judge felt the members of the charging body were using their personal feelings to determine the case. Not basing it on the evidence presented as called for in the procedure.
“Elected boards sometime perceive one of their members in a bad light,” Ms. Bluestein said. “The prospect of being able to remove an uncooperative, annoying, absentee or even truly misbehaving member may seem appealing. The judge’s careful analysis provides a helpful realty check for those considering such a process.
“Although this trial court level decision is not binding beyond this case, it provides support for the notion that removal through a motion is an option, but also for the notion it must be undertaken only in an extreme case, with sufficient evidence to support an impartial decision,” she said.
According to a legal brief from the Campbell University School of Law, there are five components to an a motion hearing.
- The official should be given adequate notice of the proceeding and of the charges against him.
- He should be afforded an opportunity to be heard and to produce testimony in his defense.
- He should not be removed from office unless it is determined after a full and fair hearing on the merits that a reasonable and just cause for removal has been established by the evidence.
- Since the process of amotion is judicial or quasi-judicial in character, the ousted municipal official should be entitled to have the action reviewed in Superior Court to make sure the law was followed correctly and the finding would have been reasonably made by another body.
Aside from amotion, there are other ways which could be used, but are highly unlikely.
In the case of Angier, Mr. Joyce says there are three possible ways that could used.
“General law in North Carolina does not provide for recall elections for elected officials,” he said. “Only 25 cities and two school administrative units have a recall as a possibility by local acts of the General Assembly. But for elected board members in the 500 other cities, all 100 counties and all other elected school boards, recall is not a possibility.”
He also brings up removal through legislative action. That would mean the state General Assembly would have to pass legislation to remove Mayor Weatherspoon from his office.
“In 1925, the North Carolina Supreme Court upheld the authority of the General Assembly to abolish the Hyde County Board of Commissioners, terminate the terms of the sitting commissioners and replace them with a new board,” he said. “It noted that counties are subject practically to the unlimited control of the legislature and that elected officials have no vested property or contract rights to the office to which they have been elected of which they could not be deprived by the legislature.”
The last is through the terms of a criminal prosecution of what is called misbehavior in office. The statute covering this issue provides that the punishment is removal from office by order of the court.
“The statute provides that if an office holder willfully and corruptly omitted, neglected or refused to discharge any of the duties of his office, or willfully and corruptly violated his oath of office according to the true intent and meaning thereof, he has committed the crime and can be removed by order of the court.”
The statute is rarely used and can only be prosecuted by the District Attorney and so the affected board can’t take the steps by itself. They can only report the misconduct and hope for the best.
Oh, by the way, no instance exists under this statute as taking place in the 1900s or 2000s.
So until the board declares its intentions publicly and the manner in which they are willing to use, those interested in the case will simply have to wait. Courtesy The Daily Record