HomeMy WebLinkAbout2013-05-20 Special Meeting Exhibit (Order) i
EXHIBIT
STATE OF NORTH CAROLINA BEFORE THE NEW HANOVER COUNTY
COUNTY OF NEW HANOVER BOARD OF COMMISSIONERS
IN RE BRIAN BERGER ) ORDER
The New Hanover County Board of Commissioners convened a special meeting on May
20, 2013 for the purpose of conducting a hearing on a Petition in Amotion to consider the
removal of Brian Berger from his position as a member of the Board of Commissioners. A full
and fair hearing was held and from the evidence submitted and the testimony heard the Board of
Commissioners makes the following:
FINDINGS OF FACT and CONCLUSIONS
1. Brian Berger is currently an elected member of the New Hanover County Board of
Commissioners.
2. This action was initiated by the filing of a Petition in Amotion with the Clerk to the
Board on April 22, 2013 whereby the New Hanover County Attorney requested the
Board of Commissioners to conduct a hearing to determine whether Brian Berger shall be
removed from his elected office as a member of the Board of Commissioners.
3. The procedural rules and procedure for the Amotion hearing were adopted by the Board
of Commissioners on April 22, 2013 and made part of the minutes and record of that
agenda and were available to Brian Berger for his review prior to this hearing.
4. Brian Berger was served personally by the New Hanover County Sheriff with the Petition
in Amotion on April 22, 2013.
5. Brian Berger was also served on April 22, 2013 with a notice of hearing advising of the
scheduled hearing on the Petition in Amotion for May 20, 2013.
6. The New Hanover County Board of Commissioners did by resolution enact a Code of
Ethics on December 6, 2010 which provides that members of the Board shall maintain
the highest ethical standards and requires local officials to act in such a manner that
citizens will have confidence and trust in their local officials.
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7. The Petition in Amotion alleged specific violations of Brian Berger's duties and
responsibilities as a member of the Board of Commissioners.
8. Since Brian Berger was elected to office, his actions and mental awareness of his
surroundings have deteriorated to such a level that he has demonstrated a lack of fitness
for office in that he does not:
a. Participate meaningfully in any policy conversations of the serious issues
facing the citizens of New Hanover County;
b. Frequently speaks out about conspiracy theories that appear the product of
a delusional mind, and makes baseless and inflammatory allegations
against others via written and verbal tirades, without any supporting
evidence of the same;
c. Drafts rambling and incoherent monologues that accuse county staff of
discrimination and falsehoods, without any supporting evidence, and
continues to demand that the County taxpayers provide him the use of a
credit card, and reimbursed expenses via cash payments that he is not
entitled to by law;
9. As a result of Brian Berger's actions the Board of Commissioners and the County
Manager have determined the need for increased security at the government
center and at Board of Commissioners meetings. The increased security has
included the use of metal detectors, search of persons and bags before meetings
and security clearance for entry into offices.
10. Brian Berger has on a consistent basis acted in a fashion and manner so that his
fellow Commissioners and the citizens of New Hanover County have lost
confidence in his ability to act as a County Commissioner, for the following
additional reasons:
a. Commissioner Brian Berger's absence and tardiness at regularly scheduled
meetings of the New Hanover County Board of County Commissioners has
consistently increased since the time he was sworn into office December, 6,
2010.
b. Wilmington Police Department responded to a 911 call to investigate a
domestic disturbance at the residence of Brian Berger on January 8, 2011.
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c. Wilmington Police Department responded to a 911 call to investigate the
welfare of a child located at the residence of Brian Berger on January 10,
2011.
d. A warrant for the arrest of Brian Berger was issued on June 9, 2011 for
assaulting Heather Blaylock and damaging her property.
e. Wilmington Police Department responded to investigate a 911 call for
attempted suicide by Brian Berger at his residence August 29, 2011.
f A Domestic Violence protective order was issued by Judge Sandra Criner on
September 16, 2011 ordering Brian Berger not to abuse, threaten or contact
Heather Blaylock. This order references Brian Berger's recent attempts or
threatened attempts of suicide.
g. On November 23, 2011 a warrant for arrest of Brian Berger was issued for
violating the Domestic Violence protective order issued on September 16,
2011.
h. On January 5, 2012 Brian Berger was charged with driving with his license
revoked.
i. Brian Berger incurred indebtedness and has not fully repaid monies owed to
the County according to the travel policy adopted by the Board on June 18,
2012.
j. On December 18, 2012 Brian Berger was arrested for driving while impaired.
A blood test performed reveals a blood alcohol content of .08 which caused
his driver's license to be automatically revoked for a period of 30 days.
k. On March 9, 2013 Brian Berger's access scanner set off security alarms at the
New Hanover County Government Center on three separate occasions after
business hours. Documents left by Brian Berger in the County Manager's
Office were stamped with the County Attorney's Confidential Attorney/Client
Stamp found only in the County Attorney office suite.
1. On March 21, 2013, Brian Berger was observed by citizens, media and
security detail of North Carolina Governor McCrory approaching the
Governor to hand him a document which Brian Berger has admitted at the
April 8, 2013 Commissioner meeting being the author of
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m. In the document referenced in the preceding paragraph Brian Berger slanders
numerous leaders in the community including a sitting judge, the current
Sheriff, past and present members of the New Hanover County Board of
Commissioners and states "I am keenly aware that in the absence of
intervention it is possible, if not likely, that it's only a matter of time before
someone gets seriously wounded or murdered."
n. Brian Berger has created a hostile work environment in his communications
with New Hanover County Staff from the beginning of his term as a County
Commissioner until the present time as evidenced by a selection of emails and
text messages introduced into evidence during the hearing of this matter.
11. Brian Berger was provided the opportunity to be heard and to produce testimony
and evidence in his defense.
12. Brian Berger's witnesses produced information that tended to refute that he had
been tardy 4 of the 58 times evidenced by the Petition and also that he may not
have violated the travel policy one of the two times alleged in the Petition.
13. Brian Berger did not refute the remainder of the evidence presented in the Petition
in Amotion.
14. Brian Berger was provided the opportunity for a full and fair hearing.
15. Commissioner Dawson stated that since she took office she has become aware of
instances of violation of the New Hanover County anti-harassment policy by
Commissioner Berger and is concerned based on all her observations about the
safety of county staff.
16. Commissioner Wolfe stated that he has observed erratic behavior by
Commissioner Berger which he is aware has created safety and security concerns
for county staff.
17. Commissioner White stated that Commissioner Berger's mental health concerns
are evidenced by his rambling monologues that are irrational, incoherent, and
untrue and appear to be the product of a delusional mind causing him to be
concerned what actions Brian Berger may take in the future.
18. The Board of Commissioners has a fiduciary duty to the citizens of New Hanover
' County to take such actions as they deem necessary and appropriate to remove a
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member that is demonstrably unfit and incapable of being a functioning member
of the Board.
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19. If the Board of Commissioners opt to take no action to remove Commissioner
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Berger from office they may be exposing their staff and employees to a hostile
and unsafe work environment they know is unacceptable and intolerable.
20. New Hanover County is a corporate body created pursuant to NCGS 153A-10 and
153A-11 and that the Board of Commissioners may exercise rights and duties of
the corporate entity pursuant to NCGS 153A-12.
21. The New Hanover County Board of Commissioners has the inherent power of a
governing body of a corporation to remove an elected official for reasonable and
just cause. Ellison v. Alderman of Raleigh 89 N.C. 125 (1893).
Based upon the foregoing Findings of Facts and Conclusions the New Hanover
County Board of Commissioners after reviewing all evidence submitted by the New
Hanover County Attorney in the Petition in Amotion, incorporated exhibits and attached
affidavits, and after considering all testimony and evidence submitted by Brian Berger
finds there is sufficient evidence for the Board to determine that just cause exist to
remove Brian Berger from his position as a Commissioner on the New Hanover County
Board of Commissioners.
THEREFORE Brian Berger is hereby immediately removed from his position as a
member of the Board of Commissioners of New Hanover County. The Board of
Commissioners shall not proceed with any action to replace Brian Berger on the Board of
Commissioners until a period of thirty(30) days has elapsed and further Brian Berger's
salary and benefits remain in effect until June 30, 2013.
This the day of Ma 2013.
New Hanover Coun Board Commissioners
Woody White, Chai an
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Clerk to the Board
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STATE OF NORTH CAROLINA COUNTY OF NEW HANOVER
1, XqM6eAe�q� b- e, ¢ a Notary Public for said State and
Coun , certify at Sheila Schult acknowledged that she is Clerk to the Board of Commissioners
of New Hanover County, and that by authority duly given and as the act of the Board, the
foregoing instrument was signed in its name by its Chairman, sealed with its corporate seal and
attested by herself as its Clerk.
This the day of May, 2013.
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N tary Public My Commission expires
Kymbedeigh G. Crowell
Notary Public
New Hanover Cou0-ROAP
y, NC
My Commission Expires
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