HomeMy WebLinkAbout2013-05-20 Special Meeting Exhibit (Transcript) Page 1
STATE OF NORTH CAROLINA BEFORE THE NEW HANOVER COUNTY
COUNTY OF NEW HANOVER BOARD OF COMMISSIONERS
In the Matter
of
BRIAN BERGER
TRANSCRIPT OF AMOTION HEARING
REPORTED BY:
PETER BROWNE RUFFIN, III, Notary Public and Court Reporter
AURELIA RUFFIN & ASSOCIATES, INC.
215 S . Water Street, Suite 104
Post Office Box 2025
Wilmington, North Carolina 28402-2025
pbruffiniii@att .net
www.peterruffin. com
TELEPHONE : 910 343-1035
TRANSCRIBED BY: MARY HEIDEN
DATE REPORTED: May 20 , 2013
LOCATION: Wilmington, NC
IMO: Brian Berger
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1 APPEARANCES
2 Board Members : MR. WOODY WHITE, Chairman
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3 MS . BETH DAWSON, Vice-Chairman
4 MR. JONATHAN BARFIELD, JR.
5 MR. THOMAS WOLFE
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6 MR. BRIAN BERGER
7 County Manager: MR. CHRIS COUDRIET
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8 Clerk to Board: MS . SHEILA L. SCHULT
9 Assistant Clerk: MS . TERESA ELMORE
az 10 For New Hanover MS . WANDA M. COPLEY, County Attorney
11 County: MS . SHARON J. HUFFMAN
12 Assistant County Attorney 1
13 230 Government Center Drive, Suite 125
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14 Wilmington, North Carolina 28403
15 For Mr. Berger: CHRISTOPHER J. ANGLIN, ESQUIRE
16 ANGLIN LAW FIRM, PLLC
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17 3824 Barrett Drive, Suite 301
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18 Raleigh, North Carolina 27609
19 Witnesses : MS . SHEILA L. SCHULT
20 MS . CAROLYN BORDEAUX
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1 TABLE OF CONTENTS j
2 TITLE PAGE 1
3 APPEARANCES 2
4 TABLE OF CONTENTS AND EXHIBITS 3
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5 LAWYER ' S NOTES 4
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6 PROCEEDINGS 5 - 161
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7 CERTIFICATION 162 - 163 3
'$ 8 EXHIBITS
9 Description Accepted
10 Notebook containing NHC
it EXHIBITS 1 - 28 and
12 BERGER/ATTORNEY EXHIBITS
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LATYI: P. ' S NOTES
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Lawyer ' s Notes
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1 The following hearing was held before the New
2 Hanover County Board of Commissioners on the 20th day of
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k 3 May, 2013 , beginning at 12 : 00 Noon in Room 301, Assembly
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4 Room, of the New Hanover County Historic Courthouse, 24
5 North Third Street, Wilmington, North Carolina, and was
6 reported by PETER BROWNE RUFFIN, III , Notary Public and
7 Court Reporter for the Firm of AURELIA RUFFIN &
8 ASSOCIATES, INC.
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t9 --- -- ----- - -- --- --- ----- - - ---- - ---- - - -- ---- --- - ----- --- -
10 CHAIRMAN WHITE : I would like to call this
11 specially called meting of the New Hanover County
12 Commission to order for the purpose of considering an
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t 13 Amotion Petition and whether Commissioner Brian Berger
14 should be removed from public office .
15 Let the record show that present today are all five
16 members of the County Commission. Seated in front of
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17 the dais is Commissioner Brian Berger together with his
18 Attorney of Record Mr. Chris Anglin. Also present is
19 our County Manager, our County Attorney, our Assistant
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20 County Attorney, our Clerk to the Board and a Court
21 Reporter among other members of the audience; of the
22 public .
23 These hearing -- this hearing will be transcribed
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1 verbatim by a North Carolina Court Reporter and there
2 will be a verbatim transcript of this proceeding
3 prepared to accurately reflect today' s testimony,
4 process and outcome .
5 On April 8 , 2013 , the New Hanover County Board of
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6 Commissioners directed the County Attorney to prepare a
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7 Petition in Amotion to remove Mr. Berger from the board.
8 On April 22 , 2013 , the New Hanover County Commissioners
9 adopted the revised amotion rules and procedures and the
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10 Sheriff of New Hanover County served Mr. Berger with the
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11 revised rules and the petition together - - I will show
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12 it to the members of the public who are watching on TV
13 in this notebook -- together with the revised rules and j
14 all the accompanying exhibits referenced therein.
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15 In the petition, it is -- it is alleged among other
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16 things that Mr. Berger has conducted himself in a -- in
17 such a way as to cause fellow board members, staff and I
18 employees to feel unsafe . It alleges that Mr. Berger
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19 does not participate meaningfully in policy discussions
20 of the serious issues facing our county.
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21 It alleges that he makes baseless, inflammatory
22 statements against others via written tirades without
23 any supporting evidence . It alleges that he engages in
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1 rambling and incoherent monologues that accuse county !
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2 staff and other elected officials in this community of
3 falsehoods .
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4 It alleges that his actions have caused the County
r 5 Commission to institute increased security measures such
6 as metal detectors and searches to ensure that meetings
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7 are conducted in a safe environment . It alleges that
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8 Mr. Berger' s actions and mental awareness of reality
9 have deteriorated to such a level that he has
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10 demonstrated the lack of fitness for office . For the
11 purpose of moving the petition and the accompanying I
12 documents into evidence, at this time I will recognize
3 13 Assistant County Attorney Sharon Huffman.
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14 MS . HUFFMAN: Mr. White, would you like Mr. Anglin
15 and I to stand when we speak to the board or. . .
16 CHAIRMAN WHITE: I think it would be . . .
17 MS . HUFFMAN: . . . remain seated?
18 CHAIRMAN WHITE: I think it would be appropriate
r 19 when there is a speaker that that speaker either be
20 seated at the witness stand so that the citizens can
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21 hear what that witness is saying or address the
22 Commission from the podium so that the citizens can hear
23 what is said. So if I - - if you would, just step up to
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1 the podium.
2 MS . HUFFMAN: Yes, sir, and having said that, I --
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3 we asked that Mr. Anglin be provided a hand-held
4 microphone so that if he wished to stay seated as he
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5 questioned witnesses or whatever - - did they give you
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6 one?
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7 MR. ANGLIN: Yes .
8 MS . HUFFMAN: Okay.
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F 9 MR. ANGLIN: For some of the questions . . .
10 CHAIRMAN WHITE : If you are going to speak, please
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' 11 -- I think it is important that the citizens hear what
12 is being said so first we will proceed with Ms . Huffman
13 with what she has to say and Mr. Anglin, obviously you
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14 will be afforded an opportunity to speak. Ms . -- Ms . {
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15 Huffman.
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16 MS . HUFFMAN: Mr. Chairman, the members of the
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17 Board of Commissioners have been provided a copy of the
18 Petition in Amotion which I assume each of you have in
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19 front of you. This Petition in Amotion included a
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20 Notice of today' s hearing. It also included the
21 petition proper for removal which incorporated exhibits
22 numbering 1 through 28 . The petition also included
23 affidavits from Debora Cottle, David Butts and Mike
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1 Arkinson.
2 Each of you have today received as well as the
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3 Clerk to the Board and counsel for Mr. Anglin -- each of
4 you just a few moments ago received two additional
5 affidavits which were not originally in the petition
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6 documents . These are affidavits signed by Sheila Schult
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7 and Chris Coudriet and I would ask that those be now
8 incorporated into the Petition for Amotion documents .
9 At this time, Mr. Chairman and members of the
10 board, I would ask that all of these documents, all of
11 these public records which are contained within the
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12 petition, the attached affidavits and all incorporated
E 13 documents be admitted into evidence and made a part of
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14 the record of this proceeding.
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s 15 CHAIRMAN WHITE: Is there a motion that reflects
16 Ms . Huffman' s recommendations?
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17 VICE-CHAIRMAN DAWSON: Mr. Chairman. 6
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18 CHAIRMAN WHITE : Vice-Chairman Dawson.
19 VICE-CHAIRMAN DAWSON: Yes, Mr. Chairman. I would
20 like to offer that motion to enter all of the foregoing
21 mentioned documents and Amotion Petition into evidence .
22 MR. ANGLIN: At this time . . .
23 CHAIRMAN WHITE : Okay. Is there a. . .
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1 MR. ANGLIN: . . .we would like to OBJECT to the
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2 admissibility of this evidence and we would like to be -
3 - and we would like to be heard as to the admissibility
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4 of these documents which are in -- we would like to be
5 heard on the admissibility of these documents which have
6 been put forth by Ms . Copley and Ms . Huffman.
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7 CHAIRMAN WHITE : What is the basis of your
8 objection?
9 MR. ANGLIN: The basis for our objection is that
10 many of the documents which have been put into evidence a
11 by Ms . Copley and Ms . Huffman are -- they are not
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12 admissible under the North Carolina Rules of Evidence
13 and if they are to be placed for submission, we would
14 like that each document be asked -- we would like that
15 each document be reviewed individually for -- for
16 admissibility into evidence and I guess one of my -- I
17 guess one of the preliminary matters which I would like
4 18 to address is what are the evidentiary rules which are
19 governing this proceeding if any? Are they the North
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20 Carolina Rules of Evidence?
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21 CHAIRMAN WHITE: Thank you, Mr. Anglin. There is a
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22 motion on the floor. Is there a second to the motion?
23 COMMISSIONER WOLFE : Second.
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IL1 CHAIRMAN WHITE : Second by Commissioner Wolfe . Any
2 further discussion?
3 (No response) _
4 CHAIRMAN WHITE : Hearing none, before calling the
5 vote I would suggest to you, Mr. Anglin, that -- and to
6 the citizens of New Hanover County that this is a quasi
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7 judicial proceeding which means that the members of this
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8 board are sitting as trier of fact . This is not a
9 courtroom. This is a meeting of a Board of County
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10 Commissioners ; consequently, other than Mr. Berger, no
11 other member of this board may offer testimony because
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12 they are sitting as the trier of fact but they may i
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13 participate by asking questions and engaging in
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14 deliberations . In fact, their duty compels them to do
15 so.
16 Quasi judicial also means that this hearing ensure
p 17 due process and that it proceed in a way similar to a
s 18 case in a courtroom but not identical so Mr. Anglin, to
19 answer your question, the Rules of Evidence are not
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20 applicable to a hearing like this . For a full and fair
21 hearing for Mr. Berger' s actions and for the citizens to
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22 be fully informed as to what he has engaged in, it is
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23 necessary that we proceed as we do with all business .
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1 The Rules of Evidence do not apply in County Commission
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2 meetings . Having said that, you will be afforded wide
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3 latitude to argue the weight but not the admissibility
4 of whatever evidence has been offered.
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5 MR. ANGLIN: Well , if that . . .
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6 CHAIRMAN WHITE : Continuing. . .
7 MR. ANGLIN: If that is the standard which you are
8 going to incorporate to this hearing, I would ask that
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9 in the admissibility of any documents or evidence that I
10 may submit, I would -- I would ask for wide latitude
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11 also because if the Rules of Evidence are not going to -
12 - are not going to apply.
13 And also at this point, I would point -- I would
14 point you to the revised Board of Commissioners Amotion
15 Hearing procedure . I would point you to ensure that the
16 hearing proceeds in an orderly fashion, the following
17 process shall be utilized. Those documents constituting
18 official public records including the petition and
19 incorporated exhibits will be considered for admission
20 into evidence so I would say from the meaning of that,
21 when it says considered for - - for being considered into
22 admission as evidence, it permits Commissioner Berger to
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23 question the admissibility of the documents which have
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1 been submitted by the County Attorney.
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2 CHAIRMAN WHITE : We have just - - we have just
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4 move forward, on that, Mr. Anglin. Thank you.
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5 MR. ANGLIN: Okay.
6 CHAIRMAN WHITE: And at this time before I go any
7 further, I would like to remind folks that we will
8 conduct this hearing in an orderly fashion. I ask that
9 everyone abide by commonly held rules of decency and
10 decorum and I ask those that are in attendance to
11 comport themselves with respect and dignity.
12 COMMISSIONER BARFIELD: Mr. Chairman.
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13 CHAIRMAN WHITE: Continuing for - - Commissioner
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14 Barfield.
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j 15 COMMISSIONER BARFIELD: I guess I am a little
16 confused here . I know that in the past when we have had
17 -- served in a quasi judicial manner, we have had people
+ 18 come in and present evidence in terms of appraisals
19 which are presented and given to us . Am I correct, Ms .
20 Copley? Are those -- so we do bring things in and we do
21 weigh those things . It is not just that we act and do
j 22 not hear what people have to say. Am I correct in that?
23 MS . COPLEY: Yes .
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1 COMMISSIONER BARFIELD: I guess I have done a
2 number of these things over the last four and a half
3 Y ears .
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4 CHAIRMAN WHITE : That is a good point . The point
5 is -- the question is how do -- can you explain to the
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6 citizens and to Mr . Berger' s attorney the standard way
7 that Special Use permits are heard; that quasi judicial
8 proceedings typically unfold before the County
9 Commission?
10 MS . HUFFMAN: Well, yes . In a -- in a land use
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11 matter such as a Special Use Permit or a Conditional Use
4 12 Permit which are quasi judicial in - - in the way that
13 they are conducted, parties may bring forward to you
14 items that they would like to be made part of the record
15 and when they do that, they give one to the Clerk and
16 they give one to each of you and they ask that they be
17 made part of the record and that you consider them
18 during your deliberations . {
a 19 And the reason that - - that especially counsel
20 would do that is they want that document to be part of
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3 21 the record so if a court ever reviews the decision that
22 you made, everything that you considered in making your
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23 decision is part of the record. It is - - it is not so
IMO: Brian Berger
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1 much that they are being placed into evidence . Rather
2 than that, they are being made part of the record and
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3 that you are considering them to the degree that you
4 think is appropriate .
5 COMMISSIONER BARFIELD: I guess my comment before
6 we move forward is - - is -- is my role to sit here as
7 judge and jury. You know, in my opinion, I feel like
8 the decision has already been made . I have been very
9 clear in my displeasure of moving forward with this
10 amotion process . I think it violates the very principle
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11 of a democracy in our country where the citizens have I
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12 the ability to vote those into office that they want to
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13 serve them.
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x 14 What should have happened in my opinion is our
15 local delegation -- Ted Davis , Rick Catlin, Thom Goolsby
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16 -- could have done a local bill to allow the citizens to
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17 indeed have a recall election to recall the gentleman if
18 they chose to do so. Unfortunately, those folks that
19 are excited about writing bills in Raleigh decided they
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20 were not too excited about writing a bill in this
21 particular case here .
22 My concern is that this puts too much power into
23 four peoples' hands . This old phrase of absolute power j
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1 corrupts . My question is going to be who - - who next?
' 2 It was not many years ago that people that looked like
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3 me did not even have the right to vote and so those are
4 my concerns moving forward to sit here and already have,
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F 5 in my opinion, the deck stacked in one direction and
6 your mind made up in one direction and putting the rules
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7 into place that benefit yourself .
8 I do not know how that serves the interest of the
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9 public . It was a little fortuitous of me to have the
10 opportunity to watch this movie that came on Tv Saturday
11 called "The Passion of Christ" and one of the guys that
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12 was in that movie, he made a very simple statement and
13 he said simply "I am washing my hands of this . "
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14 And I want nothing - - I will sit here and be a part
15 of this proceeding but I am washing my hands of this .
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16 This will not be on Jonathan Barfield' s conscience, on
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17 his body, on his hands and on me period. I think it is
18 wrong. Those are my comments, Mr. Chairman.
19 CHAIRMAN WHITE: Unfortunately, we do not have the
20 luxury of choosing what issues can come before us when
21 we get elected, Mr. Barfield. At this point, there is a
22 motion and a second on the table . Any further
23 discussion?
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1 (No response)
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2 CHAIRMAN WHITE: Hearing none, all those in favor
3 of moving the petition and its accompanying documents
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F 4 into evidence together with the revised rules, please
5 indicate by saying aye .
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6 VICE-CHAIRMAN DAWSON: Aye .
7 COMMISSIONER WOLFE: Aye .
8 CHAIRMAN WHITE : Aye . All those opposed.
r 9 COMMISSIONER BARFIELD: Nay.
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10 CHAIRMAN WHITE : There are three ayes . I did not {
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11 hear Mr . Berger' s answer as still a member of the
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12 Commission.
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13 MR. BERGER: No.
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14 CHAIRMAN WHITE : Okay. It is the majority of the
15 board in a 3 to 2 vote to move the documents and the
16 exhibits into evidence .
17 (All exhibits accepted into
18 evidence)
19 CHAIRMAN WHITE : Ms . Huffman, also for the record
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20 if you would step up and state do the Rules of Evidence
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21 apply in any of the other instances that Mr. Barfield
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22 asked you questions about and that you answered?
23 MS . HUFFMAN: Mr. Chairman, the North Carolina
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2 not properly strictly apply to this type of proceeding.
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3 I do not think it is that unusual that in a quasi
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4 judicial proceeding that there may be times that people
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5 who are making the decision might chose to use those in
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6 some way as -- as a guide for them but certainly, they
7 would not strictly apply and it would not be appropriate
8 that they strictly apply in something other than a -- a
9 -- a judicial proceeding.
10 CHAIRMAN WHITE: Thank you. Mr. Berger also
11 presented a witness list and it was filed in a timely
12 fashion and served on the County Attorney and I will
13 show it to the citizens . You cannot read the names but
14 you can see it . It was timely filed and served this
15 past Friday prior to the five o' clock deadline .
16 It should be noted that while Mr. Berger is
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17 afforded due process rights and will receive a fair and
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18 full hearing, only testimony and evidence relevant to
19 the allegations contained in the petition will be
20 allowed. The Chair will reserve the right to rule
21 evidence out of order if it is not germane to the
22 specific issues at hand.
23 The New Hanover County Attorney, at the direction
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1 of the Board of Commissioners, has presented its case t
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3 on April 22 , 2013 , and as just introduced and accepted
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4 by the Board of County Commissioners today. Therefore,
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5 its burden of proof has been met . At this time, the
6 board will turn its attention to Mr. Berger for the j
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7 presentation of his case . Mr. Anglin, will you be
8 offering any evidence today?
9 MR. ANGLIN: Yes, I will . At this time, I want to {
10 say some of -- any objections that I may raise or any
11 statements I may make, we are creating a record on
12 appeal to the New - - one of the reasons is so that we
13 can create a record on appeal to the New Hanover County
14 Court or Superior Court or the North Carolina Court of
15 Appeals and at this time, I am going to make a -- I know
16 they have already been entered into evidence but I am
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17 going to make a general OBJECTION to the admission of
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18 these documents, of all the documents, by - - and under
19 the due process and -- and the two Law Review articles
20 which are the Campbell Law Review article and the wake
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21 Forest Law Review article which you are basing -- which
22 the County Attorney essentially is basing this hearing
23 process on.
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1 It says that Mr. Berger needs to receive a full and
s 2 fair hearing and that he should be able to directly - -
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3 direct and cross examine the witnesses and by
4 considering into evi - - and just by admitting into
5 evidence all of the documents which have been presented
6 today, Mr. Berger has not been - - been given an
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7 opportunity to meaningfully cross examine these -- to
8 meaningfully cross examine these documents especially
9 when they are - - when you are presenting no witnesses .
10 And I will not -- and I will not belabor the point .
11 I know it has been accepted into evidence but I am -- I
12 am just -- I would like to lodge a general OBJECTION for
13 the record that many of these documents were
14 inadmissible under the North Carolina Rules of Evidence
15 and Mr. -- and state that Mr. Berger and I have not been
16 given an opportunity to cross examine these documents
17 and the burden has shifted with - - without the New
18 Hanover County Attorney offering any evidence besides
19 their petition and besides the documents they have --
20 that they have submitted into evidence .
21 CHAIRMAN WHITE: Your OBJECTION is noted, Mr.
22 Anglin. Mr. Berger had full opportunity to subpoena
23 anybody and everybody to come testify and he may have
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1 availed himself of that option. We will see . Proceed,
2 please .
3 MR. ANGLIN: And at this time, Mr. Berger calls
4 Sheila Schults (sic) to testify.
5 MS . SCHULT: Would it be okay since my notebook. . .
6 CHAIRMAN WHITE: Yes .
7 MS . SCHULT: . . . is here that I just stay here?
8 CHAIRMAN WHITE: Can the television capture Ms .
9 Schult' s comments from this chair, Bret?
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10 CAMERAMAN: Yes .
11 CHAIRMAN WHITE: Okay, that is fine . Off camera,
12 let the citizens know that Ms . Schult was just sworn and
13 her testimony is under oath as will be all witnesses to
14 this proceeding today.
15 WHEREUPON,
16 SHEILA L. SCHULT
17 was called for examination by Counsel and, having been
18 duly sworn, was examined and testified as follows :
19 DIRECT EXAMINATION
20 MR. ANGLIN:
21 Q And Ms . Schults, do you have a copy by chance
22 of the -- of exhibits -- of the exhibits that have been
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23 submitted by the County Attorney with you?
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1 A I do. i
2 Q Okay. If you could please turn your attention
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3 to Exhibit 9, please . And -- and these are the - - and
4 these are the exhibits, are they not, that deal with --
5 that deal with the overpayment that -- that Mr. Berger
E 6 allegedly incurred while he was traveling to the Embassy
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7 Suites in Concord, North Carolina, and the -- and the
8 Embassy Suites and the other hotel in Washington, DC;
9 are they not?
10 A If you mean the Marriott Wardman Park Hotel in
11 Washington, DC, yes .
12 Q Okay. And also the Embassy Suites in Concord,
13 North Carolina.
14 A Yes, sir.
15 Q And just as a couple of general questions, how
16 long have you worked for the New Hanover County
17 Commissioner' s Office?
18 A Over nine years .
19 Q Okay. And at that point, have you ever worked
20 for Bank of America?
21 A No, sir.
22 Q And have you ever worked for Embassy Suites?
23 A No, sir.
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a 1 Q And how did you come about receiving these
2 bills from -- from Embassy Suites and Bank of America?
3 A Can I explain the process to you for my
4 office?
5 Q Yes , you can.
6 A My office is in charge of overseeing
7 Commissioner travel . Once the Commissioners -- we
8 receive the bills . They come on credit card statements .
9 Usually the Deputy -- one of my Deputy Clerks makes the
10 reservation at the request of the Commissioner. We do
11 not haphazardly make reservations . We confirm with the
IL12 Commissioner when they want to arrive and when they want
13 to depart and from that is what we make the reservations
14 for.
15 When the bill comes -- typically, when you make a
16 reservation ahead of time, somebody coming, you have to
17 secure it with a credit card. We use our county
18 procurement card and secure that reservation and that is
19 where these stem from.
20 Q Okay. And -- and in your communication with
21 Embassy Suites or Bank of America, how did it -- how did
22 it come -- how did it come to your attention that Mr.
23 Berger did not stay in the -- that he did not use the
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1 room at the . . .
2 A If you will look at the evidence - - if you
3 will look at the next sheet, it has an NSF which is a No
4 Show Fee which indicates that the room was reserved and
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5 not used.
6 Q Okay. And did you confirm with them that he
7 actually - - do you know if he showed up actually after
8 midnight that night?
9 A I do not know. We do not confirm. We just
10 have to pay the bill as it comes in with the No Show
11 Fee .
12 Q Okay. And has Mr. Berger offered to pay you
13 any of the payments that have been billed?
14 A He has never offered to pay me anything, no,
15 sir; not personally.
16 Q Okay. And I am sure you have been over these
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17 exhibits ; have you not?
18 A Somewhat .
19 Q And did you -- I mean, you certified their
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21 A Not all of them in this notebook, no, sir.
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22 The ones that are labeled as a True Copy, I certified.
23 Q Okay. Can you please turn to -- can you
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1 review the list of exhibits at the beginning and can you
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2 please point me to any exhibits which are in the hearing
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3 that show that Mr. Berger has been convicted of a crime?
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4 A I am sorry. Can you repeat that question?
5 Q Are there any exhibits that show that Mr.
6 Berger has been convicted of any crime?
1
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7 A I am not an attorney. I am not a judge, sir.
8 Q Okay. So I will take that as a. . .
9 A I mean, I am not sure what you are - - you are
10 asking me to. . .
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11 Q I am asking you to point to any documents in
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12 the exhibits that indicate that Mr. Berger has been
13 convicted of a crime . Are there any? I will - - I will
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14 just go to the next question. And if you could please
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15 turn to Exhibit 1 . Do you -- do you keep -- do you keep
-
16 the minutes of the New Hanover County Commissioners j
17 meetings?
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18 A Yes, sir, I do.
19 Q Okay. So how do you determine - - and do you
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20 remember an e-mail that you sent me last week where it
21 says that the Attendance Records could be found online?
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22 A Yes . The Attendance Records for the boards
23 are housed inside the minutes of the regular meetings of
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IMO: Brian Berger E
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Page 26
1 the Board of Commissioners . You will note that it will
f
2 notice whether somebody is absent ; if they arrive late,
3 what time they arrived.
4 Q Okay. And I just had a couple questions and
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5 in Exhibit 1 , did you - - did you compile this exhibit at
6 the -- at the request of Wanda Copley or -- or who did -
7 - who did you compile this list as a result of?
1
Y 8 A At the request of the board. I work for. . .
9 Q Okay.
{
10 A . . . the Board of Commissioners .
11 Q And when did you compile it?
12 A I do not have a date on it . I am not sure;
13 within the last few months .
14 Q And so you -- so you compiled this list at the
15 request of the Board of Commissioners ; correct?
16 A Yes, sir.
17 Q And the only place where the minutes would
18 indicate - - and the only place where the attendance
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19 times from the County Commissioners would be found, that
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20 would be from the minutes on your website; correct?
9
21 A Yes, sir.
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22 Q Okay. Well, I just had a couple of questions .
23 Here is just a list of general exhibits which we have .
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IMO: Brian Berger
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1 I will -- if I could, I will approach the witness and
2 give her one and also give one to the County Attorney
3 and I will -- now, if you could please turn to the
i
4 exhibit that is marked Exhibit 3 for Mr. Berger. Can
i
5 you please turn -- we put that in chronological order.
6 Can you please turn to the - - to the minutes from
7 January 14th, 2011?
8 A You mean Exhibit 3 or Tab 3?
9 Q Tab 3 ; Tab 3 . And could you please turn to --
10 it is going to be the meeting minutes from January 3rd -
{ 11 - or excuse me - - from January 14th, 2011 .
12 A Yes , sir.
13 Q And would this correct -- this would be where
e
14 -- this would be where you would determine whether or
15 not they had been late by the - - if someone turned up
16 late to the meeting, it would have been noted in the --
17 in the meeting minutes ; would it not have been?
18 A It should have been, yes, sir.
19 Q Okay.
20 A That is the normal call . That is the normal
21 process .
22 Q So - - so I have a question. Can you please
23 read the second paragraph; members were present? Can
IMO: Brian Berger
Page 28
1 you please -- can you please read the names of the
2 members who were present when this meeting was called to
3 order by - - I guess it would have been Commissioner
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4 Barfield.
5 A Sure . "Members present were : Chairman
6 Jonathan Barfield, Jr. ; vice-Chairman Jason R. Thompson;
7 Commissioner Brian M. Berger; Commissioner Richard G.
8 Catlin; County Attorney Wanda M. Copley; Clerk to the
_f 9 Board Sheila L. Schult ; County Manager Bruce T. Shell
10 and Assistant County Managers Andre Mallette and Chris
t 11 Coudreit . Commissioner Ted Davis, Jr . was absent . "
12 Q So the Commissioner -- so from the information
13 on this sheet, Brian Berger would have been present when
14 the meeting was called to order; would he not have been?
15 A Yes, sir.
16 Q Okay. So my question to you is - - is in your
4
17 Exhibit 1 that lists the meetings which Mr. Berger was
18 tardy to, how was he tardy? It says he was tardy but - - j
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19 but from your own testimony here today and these
20 minutes, if he had been tardy, the arrival time would I
t 21 have been noted; would it not?
22 A If he is arriving right as the meeting is
23 called to order, I do not record a time because it is
IMO: Brian Berger
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1 the same time as when it was called. Like if he came in
2 at 8 : 30 and 55 seconds, I did not write that down.
3 Q So. . .
4 A If it was within a minute of him walking in.
5 Q So you would -- so his exact -- if he showed
6 up at 8 : 30 and 55 seconds, you would not have written
' 7 that down; correct?
8 A Not in the minutes , no, sir.
9 Q where would you have written it down?
10 A In my personal notes .
11 Q Do you have the -- so do you have your - -
12 well, ma' am, you just said that the committee meeting --
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13 that the only record of whether or not you were late or
3
14 absent from committee meetings is going to be these
15 official minutes that are - - that are available to the
16 public on the Internet . Did you not say that earlier?
17 Do you remember that?
18 A I do remember that and it could very well be
19 as I review this that it said he was tardy on the list .
20 It could have been an error when we were typing the
21 list .
22 Q Okay. So it could have been an error when you
23 were typing the list .
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1 A Yeah, it could be an error typing the list,
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2 sir. a
3 Q And so. . .
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4 A Human error. j
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5 Q Do you - - and do you share your personal
6 notebook? Have you shared that with the New Hanover
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7 County Board of Commissioners?
8 A What, sir?
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9 Q Do you - - is that available to the public?
10 A What, sir?
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11 Q Your -- your personal notebook where you write
12 down people' s arrivals .
13 A I do not write down things . It is just my
14 notes when I am doing it online and then once the
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15 minutes are adopted, then my notes go -- they are
16 destroyed. I type in the minutes when I am here, sir.
17 Q Okay.
4 18 A And so when I am redoing the minutes later to
19 have them approved, I am typing over this . On this list
20 here, it looks like it was an error and I apologize for
` 21 that .
22 Q Okay.
23 A It looks like he was on time .
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IMO: Brian Berger E
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1 Q So any notes from January 14th, 2011 , those
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2 would be destroyed, would they not, at this point? t
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3 A They are not written notes, sir. The shell of !
4 the minutes are drafted and as I am doing the minutes,
5 then they are re - - they are covered.
6 Q Okay.
7 A They are retyped over.
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8 Q And can you please turn to the next page?
9 A In the blue notebook?
10 Q Yes, ma' am. And that is going to be the
n
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11 meeting -- and that is going to be the meetings from
{
12 January 18th, 2011 and in the -- and in your -- and in j
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13 the Exhibit 1 which you have presented for evidence, it
14 indicates that Mr. Berger was tardy; does it not? I
15 mean, it does -- it indicates he was tardy but if you
16 could please read -- if you could please read the second
17 paragraph of the members who were present for the
s
18 record.
19 A Members present were Chairman Barfield; vice-
,
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20 Chairman Thompson; Commissioner Berger; Commissioner
21 Catlin; Attorney Copley; Clerk to the Board Sheila
22 Schult and County Manager Bruce Shell .
23 Q So - - so seemingly, this would be a second --
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IMO: Brian Berger
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1 second inaccuracy; would it not?
2 A It would be .
5
3 Q Okay. So you would - - so - - so from the
4 record indicated on here, Mr. Berger was present at this
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5 meeting; was he not? I mean, he was on time; was he
6 not?
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7 A Yes , sir.
8 Q Okay. And can you please turn to the -- to
9 the county minutes dated February 17th, 2011? And I
10 would -- and in Exhibit 1 that has been submitted by the
11 New Hanover County Commissioner February 17th, 2011, the
F
12 agenda review and start time was four o' clock p.m. and
13 it -- and it indicates that Mr. Berger was tardy and can
14 you please read - - can you please read the second
15 paragraph?
h
16 A Members present : Chairman Barfield; vice-
; 17 Chairman Thompson; Commissioner Berger; Commissioner
18 Catlin; County Attorney Copley; Clerk to the Board
f 19 Sheila Schult and Manager Bruce Shell .
20 Q So seemingly, this would be another mistake;
21 would it not, Ms . Schult?
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22 A Seemingly, yes .
23 Q Okay. So he . . .
IMO: Brian Berger
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1 A I had staff working on this with me and I am -
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2 - I apologize . I did not go back through all of it one
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3 on one . 3
4 Q So can you please explain to me the process
5 that you went through to compile this list? Did you - - j
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6 did you go -- did you go through the record, the . . .
7 A We went through the minutes . j
8 Q So you went through the individual minutes for
9 every meeting.
10 A Yes . Well , not me personally but my staff and
11 I did, yes, sir.
12 Q Okay. And who are the members of your staff
13 that went through these minutes?
14 A It would have been Deputy Clerk Kym Crowell
15 and my Deputy Clerk Teresa Elmore .
16 Q Okay. And -- well, I guess one more; one more
17 question. Can you please turn to the minutes from April
18 10th, 2012? And -- and the records from April 10th,
19 2012 , they indicate -- so I guess I want to -- sorry
20 about that . That was my mistake . I guess I want to
21 inquire as to how -- to how -- to how in such an
22 important proceeding that so many mistakes could be made
23 by your staff where -- where one of the allegations that
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1 has been lodged against Mr. Berger is that he is
i 2 consistently tardy. He is consistently tardy from
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3 meetings .
4 A I cannot tell you how the mistakes were made . 1
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5 I can tell you that there are three human beings working
6 in that office and I will tell you that looking at the
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7 number of meetings that we have had, it is a relatively j
8 small percentage and I do apologize for that error.
9 Q Oh, okay, sorry. I found it . That was my
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10 mistake . And on April 10th, 2012 , the records indicate
11 that -- that to an agenda review that Mr. Berger was
12 tardy and it started at 3 : 00 P.M. and that . . .
13 A Yeah. There were actually two meetings that
3
14 day. We started with agenda review that went into a
y
15 work session, yes, sir.
16 Q Okay. But on -- but can you please read --
17 can you please read to me the second paragraph; the
18 members who were present?
19 A Are we on April 10th?
20 Q Yes, ma' am. It is the last -- last page . It
21 is the last . . .
22 A Members present : Chairman Davis ; Vice-
;
23 Chairman Barfield; Commissioner Thompson; Commissioner
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IMO: Brian Berger
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1 Bar -- Berger and Catlin; Commissioner Catlin.
A
2 Q Okay. So seemingly, from what my staff and I
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3 were able to find, there were four -- there were - -
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4 there were -- so were there not -- there were four mis -
5 - there were four meetings that Mr. Berg -- so Mr. j
6 Berger was on time for these; was he not?
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7 A I cannot say he was there when the meeting
8 started. I can -- like I tried to explain to you
9 before, he -- he has a history of walking in right as
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10 they are starting so it is recorded as on time because
11 it is not at 4 : 01 or 9 : 01 or 6 : 01 , no, sir.
12 Q Okay. But in -- but in the -- but in the
13 committee meetings -- but in the meetings that he -- but
14 -- but he -- but from the records , he would have been on
15 time for these meetings; would he not have been? And
16 then if I could call your attention to -- if I also call
17 your attention, it indicates that on April 27th or
18 excuse me . On September 27th, 2012 , that he was tardy
19 to one of the meetings and when one of my -- and when my
20 staff went - - and I went on there to look to see what he
21 had been late to, we could not actually find those
22 records . They were -- they were not listed on your
23 website essentially.
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1 A For when, please?
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y, 2 Q For September 27th, 2012 , there were no - -
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3 there were no public records on your website .
4 A They should be there .
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5 Q They should be there . Okay. So any - - any '
a 6 knowledge as to why they would not have been there?
7 A No, I do not .
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` 8 Q Okay. So I had a couple -- and just a couple;
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9 not too many more questions . So if someone just walks
10 in a little bit late, you might give them -- you might
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11 give them a little bit of leeway. I mean, if you - -
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12 before you record them absent .
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13 A If the meeting starts, as an example, at four j
14 o' clock and they walk in during the minute of four
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15 o' clock, then I cannot record they walked in at four
16 o' clock and thirty seconds so until they pass like the
17 4 : 01 or 4 : 02 state, yes, we record them as on time . i
18 Q Okay. And I would just like to draw your I
I
19 attention -- and on the records that were in -- that
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20 were on your website, there were a number of times !
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21 where, for example, on April 4th, 2011, Mr. Berger was
22 present at 6 : 04 P.M. He was only four minutes late and
23 then on April 14th, 2011, he was only seven minutes
E,
IMO: Brian Berger
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1 late; seven minutes tardy. And then another question I
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2 would have would be the records that are from August
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3 15th, 2011 . There was a start time of - - is it --is it
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4 -- is it usually the case where some of the meetings may
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5 start at like an odd time? There are some -- there are
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6 some meetings that started at 2 : 04 P.M. , 12 : 56 , 4 : 04 .
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7 How did - - how does that occur? I mean, why - - why
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8 would -- why. . .
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9 A The Chairman calls the meetings to order. r
10 Q Okay. So -- so Commissioner White would have j
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11 called the meetings to order.
IL12 A Well , whatever Chairman is serving at that
13 particular time .
14 Q Okay. So -- so the -- so even if there is a
15 set time for the meeting, the Commissioner can still
16 call it to order whenever they want; right? They can
I
17 start the meeting whenever they - - whenever they want .
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18 A They do not - - I am not sure what you are
19 asking. If the meeting is called -- typically a meeting
20 is called for a set time like our -- we have two
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21 meetings a month. Our day meeting begins at 9 : 00 A.M.
22 which is the third Monday of the month and our night
23 meeting begins at 6 : 00 P.M. There are occasions where
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IMO: Brian Berger
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1 we have either a work session or a closed session or a
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2 special meeting before or after those so those could
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3 possibly start at what you call an odd time .
4 Q Okay. So -- so do you remember -- I do not
5 know if you have any knowledge of this or you remember
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6 this . Do you remember the August 15th, 2011 meeting?
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7 And this is going to be where the meeting started at
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8 12 : 56 . Do you know why it started at that odd time? j
9 A I do not, sir.
6
10 Q No. And would you -- and would you know why
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11 this would have started at any other of the odd times?
1
12 At any -- like any of the times like 4 : 34 . So it just -
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13 - it just -- does it just vary by the - - does it just
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14 vary meeting to meeting really?
15 A I do not -- I cannot tell you why the meeting
16 started when it did. It is when the Chairman called the I
` 17 meeting to order.
18 Q Okay. And are there ever any instances where
r 19 they will wait for a meeting to start until someone
f
a 20 shows up other than the -- other than the Chairman?
21 A Not to my knowledge .
22 Q Not to your knowledge . So there was a closed
23 session from May 21st, 2012 or excuse me . Yeah, May
IMO: Brian Berger
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1 21st, 2012 that started at 3 : 09 P.M. Do you know - - do
2 you know who they were waiting for to show up at that {
r 3 meeting if anyone?
4 A I do not remember, sir.
5 Q You do not remember. Okay. And if you could
6 please turn to our Exhibit 4 . Do you recognize this? I
7 believe that this is an Attendance Report that -- that
8 Commissioner Berger -- Berger asked you to prepare; is
9 it not?
10 A I do not believe this was something that was
i
11 done at his request . I am not sure whose request it was
12 done at but it was done by one of my Deputy Clerks at
3 13 the request of one of the board members .
b
14 MR. ANGLIN: At this time, we would -- Commissioner
15 Berger would request - - would request that Exhibit 3 of
16 our -- of the exhibits which have been presented be
17 accepted into evidence .
18 CHAIRMAN WHITE: It is accepted.
19 MR. ANGLIN: Thank you.
20 MR. ANGLIN:
21 Q So in the - - I guess this is - - the 2011
22 Attendance Report . this would have just been for their
23 attendance at -- at special committee meetings but not
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IMO: Brian Berger
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1 general meetings of the Wake (sic) County Board of
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2 Commissioners .
3 A No, sir. What this is, is every December, the
4 Board of Commissioners appoint one of them to certain
5 board -- to serve on certain boards and committees and
6 this is what that is stemming from. we do not keep the
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7 attendance .
8 Q Okay.
9 A We do not keep the attendance for these
10 committees . The committees themselves are charged with
g 11 that . We just have -- we were asked -- and like I said,
12 I do not remember which Commissioner -- to compile this .
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13 Q And I would just ask the - - I will not ask you
14 anymore questions about that and I would just ask the
15 board to take note that under these - - under the 2011
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16 Attendance Report, Mr. Berger actually missed fewer
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17 meetings than any of the other -- he was absent either
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18 at the same times or fewer times than any of the -- than
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19 any other of the Commissioners . At this point, I guess
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20 we would ask that Exhibit 4 be accepted into evidence .
21 CHAIRMAN WHITE : Mr. Anglin, anything you would
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22 like to be offered into evidence is -- is going to come
23 in without objection unless . . .
3
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1 MR. ANGLIN: Okay.
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2 CHAIRMAN WHITE: . . . there is a legal objection
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3 which I cannot imagine . I mean, again, this is quasi
3
4 judicial .
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5 MR. ANGLIN: Okay.
6 CHAIRMAN WHITE : We would rather consider more as
7 opposed to less evidence so. . .
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8 MR. ANGLIN: Okay. Well, then, I will not . . .
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1
9 CHAIRMAN WHITE : . . . this is all into evidence . You
10 can just go ahead and. . .
11 MR. ANGLIN: Okay. I will - - I will do away with
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12 the request for admission into evidence .
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13 MR. ANGLIN:
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14 Q And Ms . Schult, can you please turn to -- can
15 you please turn to Exhibit -- it is going to be Exhibit
16 -- it is going to be Exhibit 10 of the -- it is going to
r 17 be - - it is going to be -- or do you know the - - do you
18 know when the policy was adopted about the -- about the
19 travel? Do you know the date of the travel policy that j
20 was adopted by the New Hanover. . .
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21 A I believe it was June 18th, 2012 .
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22 Q Okay. And that -- and that policy, it was
23 adopted after the trips that Mr. Berger had taken in €
IMO: Brian Berger
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1 2011 ; was it not? °
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2 A If indeed I was correct on the date, then yes .
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3 Q Yes, I believe you are . It was adopted in I
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4 July of 2012 so it was adopted after those two trips
5 that he took; correct? j
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;{ 6 A Yes, if it was adopted on when I said.
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7 Q Okay. And. . .
2
8 CHAIRMAN WHITE : If anybody has any cell phones and j
9 they have not realized at this point that they need to
10 be silenced, let' s take this opportunity to do that;
11 shall we? Thank you.
12 MR. ANGLIN:
13 Q And Ms . Schult, a lot has been made of the --
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14 of what has been described by Mr. Berger as a harassing
15 behavior and by kind of the -- I guess like the
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16 consistent badgering of the staff so now I am just going
17 to review some of the e-mails that the - - that I guess
18 were -- were exchanged between you and him over the
19 course of the -- over the last two and a half years .
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20 COMMISSIONER BARFIELD: Mr. Chairman. Can you {
21 raise our microphone u so we can hear you better,
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22 please? Thank you.
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23 MR. ANGLIN: Okay. I will - - I will lean a little
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1 bit more when I -- when I speak.
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2 MR. ANGLIN:
;y
3 Q And can you please to turn to the exhibit,
9
4 Exhibit 18 that -- that is in the evidence that has
9
5 already been submitted by the Board of - - by the County
6 Attorney?
7 A I am there .
8 Q Okay. Well , can you -- can you point out to
d 9 me any of the exchanges? And feel free to read through
10 this . I know it is three separate pages of e-mails .
11 Can you point out to me in -- in Exhibit 18 any requests
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12 of Mr. Berger which you feel you were harassing?
13 A Yes , I can. It is on the first paragraph on j
' 14 that first page . "I ' ll bite my tongue regarding the
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15 conduct and legalities, largely instigated by you,
16 violating North Carolina General Statutes and even more
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17 basically, simple principles of good government,
18 protecting minority viewpoints not stifling dissent and
19 prying into the lives of -- to exploit anything or
3
20 anyone for politics . " And this e-mail was addressed to
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21 Rick Catlin and myself .
22 Q Well, in the e-mail , he did not threaten you
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23 at all , did he, physically?
IMO: Brian Berger
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1 A Physically?
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2 Q Physically, did he threaten any violence
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3 toward you?
` 4 A No, sir.
3
5 Q And could this not be seen -- and even though
6 you might see it as harassing, could not Mr. Berger have
7 seen this as just a -- could he not have seen it as just
8 a general disagreement about - - about the legalities of
9 what was going on with the Commissioners?
10 A Sir, I work for five members of the board.
11 They are my employers . On the flip side, New Hanover
x 1
12 County government assures me of a harassment free, safe
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F 13 workplace and I do not believe that this is the manner
14 in which a New Hanover County boss would speak to a New
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15 Hanover County employee .
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16 Q There is no curse words used in this e-mail ;
17 are there? !
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18 A They do not have to be curse words to be
19 threatening.
20 Q So that is a no; that there are no curse
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21 words ; are there?
' 22 A There are, in the broader sense, no curse
23 words, no, sir.
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1 Q Okay. And then can you please turn to Exhibit
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2 -- can you please turn to Exhibit 22 of -- can you
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3 please turn to Exhibit 22 that was submitted into
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4 evidence by the County Attorney? And then in this let -
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5 - and I guess this is a Memorandum that was created.
6 This was a Memorandum that was created by you to the
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7 County Commissioners ; was it not?
8 A Yes, on September 26th, 2012 .
9 Q Okay. And I just have some questions about --
10 well, I guess as a -- as a -- as a County Clerk, can you
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11 please just give a quick description of your general --
? 12 of your general - - of your job in general and what your
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13 -- and what they expect you to do?
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14 A As County Clerk, I am in charge of overseeing
a 15 the official action of the board; that it is recorded in
16 a timely and correct fashion and I keep all the
3 17 historical records that have to do with anything with
1
18 the County Commissioners and their decisions . My office
f 19 houses records back from the 1800s to the present day.
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20 Q Okay. And then does one of your -- do the
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21 Commissioners commonly ask you and your staff to partake
22 in certain activities concerning these records?
23 A You will have to be more specific than that .
IMO: Brian Berger
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1 Q I mean is it - - is it common for a
2 Commissioner to request you to por -- to porcure (sic)
3 some type of records or lists from the - - from the
4 records that you have on hand?
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5 A If it is under my jurisdiction. If it is not
1
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6 under my jurisdiction, I -- I request it for them under
{
7 the agency where it is housed.
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3 8 Q Okay. So if you do not have it, you tell them
9 to -- you will refer them to another party then.
s 10 A Correct .
11 Q Okay. And Commissioner Berger -- do they --
12 are they -- is the County Commission - - are they -- they
13 are responsible for determining who the County Clerk is;
14 are they not?
15 A They do.
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16 Q Okay. '
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17 A They appoint -- I am appointed.
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18 Q So they are -- so the five of them are
19 essentially your -- they are your employers .
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20 A They are . 1
21 Q And they have the authority to remove you at 1
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22 anytime .
23 A They do.
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1 Q Okay. So -- so it would be - - it would be in
2 the role that Commissioner Berger had, would it not be,
3 to -- to raise concerns about - - it would be within his j
4 purview as a County Commissioner to raise concerns about j
j
5 your effectiveness at this position; would it not be?
6 A Typically, that is done during our Performance
{ 'F,
7 Evaluations and I have had one since Commissioner Berger
x
8 has been a Commissioner and all my scores were very a
9 high.
10 Q That still does not answer the question. But
3 i
11 it would -- but it is within his purview as a County
I
12 Commissioner, is it not, to raise concerns about your
13 ability to perform your position? 1
14 A With me personally, yes, or with the
a �
15 Commissioners, yes, personally.
16 Q Okay. And I would - - and I would direct you
17 to -- I would direct you to a letter - - and I would
!
i
18 direct you to a letter that was sent to you -- that you
19 created and can you please - - and can you please
I
'4 20 indicate in there where it says -- can you please
}
21 indicate to me where in that letter you let the County
22 Commissioners know that you felt that he was harassing
23 you or doing something inappropriate?
3 �
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IMO: Brian Berger
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Page 48
1 A I have spoken with them privately; with this
2 board and with the previous board.
i
3 Q So in this letter - - I mean, I understand that
4 it says that Mr. Berger in the first sentence has made
' 5 serious allegations against you and then on the third
3
6 line, it says that you take these allegations very
I
7 seriously but you did not say that you felt that his
i
8 requests were harassing, did you, in this memo that was
t
9 created to the board?
f
10 A No, sir, it is right there .
11 Q Okay. And you did not say, did you, that he
f
12 had physically threatened you anyway?
I
t
a
' 13 A No, sir, it is not written down.
14 Q Or that he had ever physically assaulted you.
15 A No, sir, it is not written there .
r
16 Q And you also indicate -- and you also indicate
I
i
17 - - did not indicate that you have any -- that you had
18 any concerns over your personal safety in this memo; did 1
19 you?
20 A Not in this memo, no, sir.
21 Q Okay. And then a couple more questions . And
22 are you familiar with the New Hanover County policies
23 regarding the Commissioners using their offices? I mean
s
3
F IMO: Brian Berger
f
6
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Page 49
i
1 the actual office use when they - - are you familiar with f
` 2 those policies?
a
3 A There is no written policy.
i
4 Q Okay. So there is no written policy governing
i
y
5 when the County Commissioners can come -- can go to and
6 from their office; is there?
F
7 A No, sir, no written policy.
8 Q Okay. So a County Commissioner could
9 theoretically -- they are allowed to use their office
10 twenty-four hours a day seven days a week; are they not?
' 11 A There is no written policy against that .
3
12 MR. ANGLIN: Okay. And at this time, Mr. Berger
13 has no further questions for this witness . 1
j
r 14 CHAIRMAN WHITE : Thank you, Mr. Anglin. Any j
a
15 redirect (sic) from the County?
16 MS . HUFFMAN: A couple of questions, please .
i
17 CHAIRMAN WHITE: If you will just step up to the
3 �
1
18 microphone, Ms . Huffman. Thank you.
k
19 CROSS EXAMINATION
s
20 MS . HUFFMAN:
21 Q Ms . Schult, would you turn to Exhibit 1 which I
22 was the first exhibit that Mr. Anglin asked you about?
23 A Yes, sir -- yes, ma' am.
z
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IMO: Brian Berger
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R Page 50
1 Q The Attendance Record. . .
E �
2 A Uh-huh.
3 Q . . . that you stated that you prepared when j
4 asked to do so by the Board of Commissioners and in
1
5 answer to his question of when you did that, I recall
6 you said that you had done it sometime over the last few `
7 months, you prepared it .
S
8 A Uh-huh.
r
9 Q The last column has across the top "Berger' s
f i
{
10 Arrival Time" and I note that the manner in which you -- j
11 you respond to that line item is either on time, tardy, '
1
z �
12 absent . I think that is it; on time, tardy or absent .
f
i !
13 How many tardies are on this Attendance Record?
14 A I have not counted.
i
15 Q How about doing that for us, please, ma' am?
16 Do you have it in front of you?
I
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17 A I do.
1
18 Q Okay. Well , why do you. . .
i
k 19 CHAIRMAN WHITE : I think -- I think the record can
F
A
{
20 reflect that there are fifty-eight indicated as tardy.
{
21 MS . HUFFMAN:
j
22 Q Does fifty-eight sound like that might be
23 correct?
i
IMO: Brian Berger
x
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Page 51 j
1 A It sounds reasonable .
2 Q You have no reason to dispute that . I
F 3 A No, ma' am. I
i
4 Q And Mr. Anglin asked you -- I had jotted down
5 three different dates . Do you recall whether there were
6 three or four? I jotted down three . I may have missed {
7 one .
8 A I think there were four.
k
9 Q Okay.
i
10 A One was - - because there were two meetings on j
11 a certain day.
12 Q So there were -- there were three dates that
t 13 he asked Y ou about .
3
14 A I believe there were four.
15 Q Okay. Two meetings on one date and then two -
r
16 - that is okay. Let me -- let me just - - let me ask you
17 generally. In -- in putting this Attendance Record
4
d
18 together, explain to me again how you were able to
i
19 determine if Mr. Berger was tardy for purposes of -- of
{
20 your formulating this record. '
21 A we had to go through every set of minutes and
` 22 compile the list judging from the Attendance Records in
i
23 the minutes .
F
IMO: Brian Berger
a }�}
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Page 52
s
1 Q Okay. And so of - - of the fifty-four or
i
2 fifty-five dates that your record indicates Mr. Berger
4 3 being tardy that Mr. Anglin did not ask you about . . .
4 A That is correct .
t �
5 Q . . .would it be your belief then that those
6 agenda minutes indicate that he was tardy accurately?
7 A Yes, ma' am.
I
8 Q well , the ones that Mr. Anglin did not ask you
9 about that are indicated here as being tardy, is it your
i
10 testimony that those agenda minutes should indicate that
i
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11 he was tardy?
i
12 A Yes .
I
13 Q Okay. The -- the -- the several that Mr. I
14 Anglin asked you about, there was no notation about
t j
15 anyone being tardy; is that correct? j
I
16 A That is correct .
17 Q They simply indicated that he was present . !
s
18 A Correct . 1�
19 And so is it our testimony that it is either
Q Y Y
20 possible or not that Mr. Berger may have been tardy on
21 those occasions and it simply was not indicated in your
22 minutes?
23 MR. ANGLIN: OBJECTION; leading.
g
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IMO: Brian Berger
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s"
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Page 53
3
1 THE WITNESS : It could have been.
2 MS . HUFFMAN:
3 Q You do not know.
t
4 A I do not know.
z
5 Q Okay. Would you turn - - would you turn to
6 Exhibit 20 that Mr. Anglin just asked you about? I am
7 sorry. I may have the wrong number. Hold on.
8 A 22 .
9 Q 22 . How many pages are there to that exhibit?
10 A Including the cover memo, there is five pages .
5
i 11 Q And the cover -- the cover is a memo from you,
12 Clerk to the Board, to the Board of Commissioners; is
13 that correct?
14 A That is correct .
t �
15 Q And would you -- would you read the first line I
i
16 after Commissioners? I
17 A I will . "On numerous occasions, Commissioner !
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18 Berger has made serious allegations against me in my j
19 role of Clerk to the Board and my office staff that we
20 are not responding to his requests for information. "
21 Q Go ahead, please .
22 A "I take these allegations very seriously and
23 in an attempt to address his allegations, I have 4
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3
J �
IMO: Brian Berger
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Page 54
1 attached a list of all the requests for information my
I
� I
2 office has received from Commissioner Berger. You will
3 note that the list reflects the date the request was
4 received and the date and format in which the
5 information was provided. "
6 Q And so attached to this cover page, would you
7 just very generally explain what the remaining four
4
8 pages consist of?
I
9 A The remaining of the four pages is split up j
b �
s
10 into the Status of 2011 Information Requests Made by
i
11 Commissioner Berger and Status of 2012 Information
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12 Requests Made by Commissioner Berger and it lists the
13 date that we received the request for information, what
14 the information was and how we fulfilled the request and
15 the date on which we received - - we filled the request .
16 MS . HUFFMAN: Okay. Thank you, ma' am.
17 CHAIRMAN WHITE : Mr. Anglin, please call your next
Y
3
18 witness .
19 MR. ANGLIN: If I could, I just have -- I would
20 like to ask a few more questions .
21 CHAIRMAN WHITE: I am sorry?
22 MR. ANGLIN: I would just like to ask one - - a
23 couple of redirect questions .
{
3
IMO: Brian Berger
s,
3
x
Page 55
1 CHAIRMAN WHITE: Okay. Is it related to Ms .
{ 2 Huffman' s questions?
3 MR. ANGLIN: Yes . Yeah, it will be -- it will be
3
x 4 confined to the scope of her questions .
5 REDIRECT EXAMINATION
i
6 MR. ANGLIN:
I
7 Q So - - so these -- have you ever compiled - - do
i
8 you have any - - have you compiled a list of any of the
j
9 requests that have been made to you by the other County
i
10 Commissioners? I mean, have you compiled a list like
j
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11 this?
12 A Like what?
i
13 Q Like -- like the list you compiled for Mr. - -
14 about Mr. Berger' s requests .
15 A Under this item Number 22 are you speaking
16 about?
17 Q Yes . Yeah; sorry. Under - -have you complied
18 a similar list for any of the other Commissioners?
r 19 A No. The number of requests of Commissioner
20 Berger was very high compared to normally requests we
21 get from Commissioners . Plus , he was also - - there is
t 22 not included in this notebook but this was in response
23 to numerous e-mails where he was accusing my office of
IMO: Brian Berger
;' j
Page 56
i
1 not fulfilling his requests for information. That is
t
2 what this was in response for so it would have been
3 specific to Commissioner Berger' s requests .
t
4 Q So in a -- so for the calendar year -- so you
5 -- you listed by -- these by calendar year; did you not?
6 A Yes , sir, 2011 and 2012 .
7 Q So in a 365-day period, you took exception to
g
8 eight requests ; is that correct?
9 A I do not take exception to any request for
x
10 information, sir.
11 Q I mean - - I mean you listed eight requests
12 about the status . There is eight different requests
i
13 that are listed on this 2011 sheet; are there not?
x
14 A I have not counted them.
15 Q I mean, you can -- you can take an opportunity
16 to count those . Oh, there is nine; excuse me . So you
17 made -- so over the course of a year, he made nine
18 requests .
z
19 A Sir, the number of requests made by
20 Commissioner Berger is not the issue at all . The issue
21 was that we fulfilled the requests and he kept saying
22 that we were not giving him the information he
23 requested. That was the premise of this memo. It was
IMO: Brian Berger
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Page 57
1 to outline that we had indeed fulfilled all his requests
2 for information. He could have requested a hundred more
3 pieces of information and my office and myself and my
4 staff would have filled those requests . The issue again
s
5 I say was because he kept saying we were not filling his
6 information requests and I - - this was to show him and
7 the other Commissioners that indeed we had filled every
f
8 request that we had gotten from him.
9 Q And is there not a possibility that Mr. Berger
s
10 could have disagreed with you as to whether or not in
11 his opinion you - - there is a possibility that -- there
12 is room on this issue that Mr. Berger could have
13 disagreed with you whether or not what he wanted was sat
14 -- was satisfactory to him and that . . .
15 A well , and that is why - - if you will read the
16 memo, sir, in the third paragraph I said, "Commissioner
17 Berger, if after reviewing the list, you still feel we
18 have omitted information that you have requested, I
19 would ask that you please put the request in writing to
20 me and as previously done, we will fill it as quickly as
21 possible . " And I did not receive any response from
e
22 Commissioner Berger on this .
23 Q But there is room for disagreement, is there
IMO: Brian Berger
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Page 58 i
1 not, as to whether or not you actually filled these
k
2 requests? Two - - two pe - - two reasonable people can
3 differ; can they not?
3 4 A No, sir. In black and white, this is what --
5 this is a -- this is what I filled.
4
6 Q So it is your sworn testimony that another
7 reasonable person could not disagree with you as to j
8 whether or not the request - - whether these requests had
9 been met . Is that your testimony?
10 A Sir, these are the requests for information
J
11 and this is how the information request was filled.
12 MR. ANGLIN: Then no further questions at this
13 time .
14 CHAIRMAN WHITE : Call your next witness .
15 MR. ANGLIN: At this time, Mr. Berger calls Carolyn
16 Bordeaux.
17 CHAIRMAN WHITE: Let the record reflect that Ms .
5
'. 18 Bordeaux was just administered the oath and that her
19 testimony will be under oath. Thank you. Proceed,
20 please .
21 WHEREUPON,
22 CAROLYN BORDEAUX
23 was called for examination by Counsel and, having been
IMO: Brian Berger
Page 59
1 duly sworn, was examined and testified as follows :
2 DIRECT EXAMINATION
ti
3 MR. ANGLIN:
4 Q Ms . Bordeaux, how are you doing today?
5 A I am fine, thank you.
6 Q I would like to thank you for being available
7 as a witness . I ask first can you please -- as a little
8 bit of a background, can you please describe your
9 relationship with Brian Berger?
10 A I am a concerned citizen and have known Brian
11 since 2009 . 1 was involved with his campaign.
12 Q Okay. And do you see him on a frequent basis?
13 A It varies . Sometimes not for months and
14 sometimes frequently within a few -- a few weeks .
15 Q Okay. So -- so since 2009 though, you have
16 seen him maybe not on a completely consistent basis but
17 you have seen him. . .
18 A Every couple months at least .
19 Q You have seen him throughout this period; have
20 you not?
21 A Uh-huh.
22 Q And to your knowledge, has has Mr. Berger
23 ever been convicted of a crime?
IMO: Brian Berger
Page 60 ;
1 A Not that I am aware of .
2 Q And currently, do you know there is only one -
t
3 - so you do not -- he has not - - as far as you know, he
4 has never been convicted of a crime .
5 A Not that I am aware of, no, he has not .
ti
6 Q And do you know the current status of his - -
7 his DWI case is still pending; is it not?
8 A As far as I - - I understand, yes .
i
9 Q Okay. And I would like to take you back to - -
10 to Thursday when you came down here with Mr. Berger to
11 file the Complaint and the request for a Temporary
12 Restraining Order. Do you remember that?
13 A I do.
14 Q Okay. And can you please describe what
15 happened when you initial - - from when you initially got
16 here to file it to when you actually spoke to Judge
17 Cobb?
r
18 A Okay. I -- I went into the Clerk' s Office on
19 the main level to file the - - the motion. Is that the
20 right word? And I had the instructions and I had the
21 check and the appropriate paperwork and I presented it
22 to the Clerk and she indicated that there - - that it was
23 a little bit unusual, I guess , and that there needed to
IMO: Brian Berger
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Page 61 I
1 be a cover sheet and -- and that they did not save some
2 documents . The way it was handled was evidently
d
3 different in North Carolina than in the Raleigh area
4 where . . .
i
5 Q You mean in Wake; the difference in the
6 Wake
i
7 A The Wake County; right .
8 Q Okay. !
I
9 A I am sorry. In Wilmington; New Hanover County
10 versus the Wake County area. And I was able to get her
t
11 the information she needed and then she told me I would
i
12 have to take it up to the Superior Court office, office
i 13 suite, and they would see if a judge was available to --
5 14 to handle the situation. When I first went up there, I
15 gave it to the Clerk; Administrative Assistant . She
16 asked -- said everybody was at lunch and asked us to
17 come back. Twenty minutes later, we came back. We
18 waited until it was time to see Judge Cobb.
i
19 Q And -- and after you - - can you please '
20 describe what happened after you saw Judge Cobb?
i
} 21 A When I went into the office, he had already
22 had the paperwork and I went into the office and he said
23 to me that he had just gotten off the phone with woody
i
IMO: Brian Berger
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Page 62
1 White and that he had some very grave concerns over --
2 over the situation.
3 Q And what were the concerns that he voiced?
4 A That it was an ex parte hearing and did I know
5 what an ex parte hearing was and I said I did not
6 because I was just basically the errand girl . I was not
Q
7 - - he asked me if I worked for the law firm and I told
3
8 him "No; " that I was just simply here to do the
a
t
9 paperwork and he - - he seemed a bit concerned and
10 frustrated by the situation.
11 Q And what were -- and what were his general
12 concerns?
13 A That - - that it was not handled the way it
14 normally would. I guess the attorney normally would
15 have come in with it . I am not certain. He asked
16 questions but I did not - - I did not understand in the
17 context and I explained to him again that I was just
18 simply there trying to do the clerical part and I did
19 not work for the -- for a law firm and. . .
20 Q But just to be clear, he said he had spoken
i
21 with. . .
22 A He did say he had just gotten off the phone
23 with woody white .
1 i
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IMO: Brian Berger
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Page 63
1 Q And did he say what the context of their
2 discussion was?
3 A Yes . He said that they had indicated that if
4 there was to be any hearing that that they wanted to
5 be present as part of that hearing; that if something
6 was going to be heard, then the County Commissioners
7 that were bringing the the charges wanted to be a
8 part of the hearing.
9 Q Okay. And did he indicate to you whether or
10 not - - did he indicate to you whether or not he had been
11 on the phone? Did he ever mention the name of Sharon
12 Huffman or Wanda Copley?
13 A
Not at that time, no.
14 Q Okay. So did he ever indicate to you that he
15 had spoken to them on the phone?
16 A I am sorry. I did not hear you.
17 Q Did he ever indicate to you that he had spoken
18 to them on the phone?
19 A Not -- no, he did not .
20 Q Okay.
21 A He just mentioned that he had been on the
22 phone with woody.
23 CHAIRMAN WHITE: Mr. Anglin, what is what is the
IMO: Brian Berger
F Page 64 '
1 purpose of -- what is the relevance of this line of
5
2 questioning?
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3 MR. ANGLIN: The relevance of this line of
S
9 I
4 questioning is the -- is the impartiality of this -- of
1
5 this board.
6 CHAIRMAN WHITE : Did you file a motion for a
i
7 Temporary Restraining Order request -- and request an ex
8 parte hearing Friday; yes or no?
9 MR. ANGLIN: Yes, I did.
10 CHAIRMAN WHITE: Okay. And for the citizens, what
11 does ex parte mean?
12 MR. ANGLIN: Ex parte means that it can be heard
SO
13 without the other party being present .
i
14 CHAIRMAN WHITE: Correct, it can be but you are
15 aware that the Rules of Civil Procedure require the
3
16 other party to be notified if it is possible; correct?
17 And you had asked for the secret meeting with the judge,
4
18 not the county; is that not right?
}
19 MR. ANGLIN: I would disagree with you on that
20 point, Mr. White . Rule 65 of the North Carolina Rules
i
21 of Civil Procedure - - it is North Carolina General
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22 Statute 1A-1 or Rule 65 . It is Rule 65 (b) . Rule 65
23 governs injunction and Rule 65 (b) governs the
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IMO: Brian Berger
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Page 65
1 requirement for a Temporary Restraining Order and if you
2 will . . .
3 CHAIRMAN WHITE: I am sorry. I am aware of what
4 Rule 65 says . My question to you - - you are the one
5 that asked for the ex parte hearing, not -- not the
6 county; correct?
7 MR. ANGLIN: Yes, I did.
8 CHAIRMAN WHITE : And in fact, you sent Ms . Bordeaux
9 down to file it .
10 MR. ANGLIN: Yes, I did.
11 CHAIRMAN WHITE: Okay. She is not an employee of
12 your law firm and she is not a licensed attorney;
13 correct?
14 MR. ANGLIN: No, she is not .
15 CHAIRMAN WHITE : And in your practice, is it not
16 customary to have members of the bar notify the court of
17 their availability when they know of a hearing that has
18 been requested?
19 MR. ANGLIN: Well, for a TRO, there is no hearing
20 that is requested.
21 CHAIRMAN WHITE: You requested a hearing for a TRO .
22 You do not get it as a matter of right . In fact, the
23 judge denied your TRO; correct?
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IMO: Brian Berger 3
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Page 66
1 MR. ANGLIN: Yes, he did.
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2 CHAIRMAN WHITE : You asked for a hearing and the
i
P
3 county is entitled to attend a hearing so I am curious
4 as to what this line of questioning is - - is for. What
5 relevance does it have to Mr . Berger' s mental health
6 over the last two and a half years and the voluminous
7 proof of things he has done? What relevance does it
I
8 have today. . .
9 MR. ANGLIN: Well, it . . .
10 CHAIRMAN WHITE: . . . that you asked for a hearing
11 and that we wanted to be present for the hearing?
12 MR. ANGLIN: Well, I guess it has a relevance as to
13 whether or not you, in this case, are acting - - you have
14 two licensed attorneys who are - - who are representing
15 you but the relevance, I guess, is that you are making
16 legal arguments to Judge Cobb about why a TRO would be
17 inappropriate in this case .
18 CHAIRMAN WHITE : Sir, I would counsel you against
19 making statements of facts that you do not know about .
i
20 I never said a word about this case to Judge Cobb and
i
21 you -- I should caution you to be careful in the things
22 as an officer of the court that you say publicly.
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23 MR. ANGLIN: So you never made any statements to
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IMO: Brian Berger 9
Page 67
1 Judge Cobb.
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2 CHAIRMAN WHITE : The Clerk of Court faxed us the --
a
3 your request for a Restraining Order. You had asked us
4 for a continuance . I - - I said as the Board Chair with
i
5 Ms . Copley present that we would consider a continuance j
6 if you could abate our concerns as to his mental health
a 7 status . If you could show us that he has gone to a
8 doctor; that he has gotten medication; that he has
9 undergone some kind of psychiatric counseling that would
10 abate concerns that we have about our security and that
I
11 of our staff, that we would consider it . You did not do
12 -- let me finish.
13 MR. ANGLIN: And -- and this conversation happened
14 on Thursday afternoon between twelve and one o' clock.
} 15 CHAIRMAN WHITE : That is correct .
16 MR. ANGLIN: I wrote the note .
17 CHAIRMAN WHITE: That is right and at the same
i
i
18 time, Ms . Bordeaux was asking for a Restraining Order
i
19 down at the courthouse . You did not tell us that so it j
I
20 is faxed to our office while I am still in Ms . Copley' s
i
21 office who is our attorney and we contacted the Trial
E
22 Court Administrator' s office which lawyers do every hour
23 of every day in every county to say "Is there a hearing
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IMO: Brian Berger
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Page 68
1 going to take place? If so, we would like to be
i
2 present . " There was never a discussion with anyone
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3 about the merits of this case so at this point, do you
4 have any further questions for her about anything else?
5 MR. ANGLIN: Yes, I do.
I
6 CHAIRMAN WHITE : Okay. Proceed.
£j
G I
7 MR. ANGLIN: And there will be no - - and I guess
r 8 just for the public and for the court, I would like to
9 read in -- they may not know what the rule of -- what
10 the Rule of Civil Procedure is regarding a Temporary
11 Restraining Order. I would just like an opportunity to
12 read the first two sentences and that is it and this is
13 Rule 65 (b) . "A Temporary Restraining Order may be
14 granted without written or oral notice to the adverse
15 party or that party' s attorney only if it clearly
16 appears from specific facts shown by Affidavit or by
17 Verified Complaint that immediate and irreparable
18 injury, loss or damage will result to the applicant
19 before the adverse party or the party' s attorney can be
20 heard in opposition and the applicant' s attorney
r
21 certifies to the court in writing the efforts if any" --
3
22 that is the key; there is no requirement that any
23 efforts be made -- "that they have made to get -- that
a
IMO: Brian Berger
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Page 69
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1 have been made to give the notice and reasons supporting
2 the claim that the notice should be -- not be required. "
3 And then. . .
4 CHAIRMAN WHITE : So -- so your interpretation of
i
5 that rule and the words "if any" is that although you
6 were on the phone with us Thursday afternoon, with Ms .
7 Copley and myself as the Chairman of the Board, you
8 chose not to tell us about a hearing; did you not? You
4
9 -- you had your own interpretation of that rule;
10 correct?
11 MR. ANGLIN: The correct interpretation.
12 CHAIRMAN WHITE: I understand that is your
13 interpretation. My point is you were on the phone with
14 us and you did not tell us you were asking for a hearing
A
f 15 before a judge; did you? We found out with the Clerk
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4
16 notifying us and we called the judge . Is that not how
17 it happened?
18 MR. ANGLIN: I would also like to remind you during
r
19 our phone conversation, within two minutes of it
t
p 20 starting, you mentioned to me that you knew that we had
} 21 asked for a TRO.
22 CHAIRMAN WHITE: I suggested that you might because
23 that is what I would have done if I were you.
} IMO: Brian Berger
r
i
7 �
Page 70
1 MR. ANGLIN: Yeah.
2 CHAIRMAN WHITE : I said, "Mr . Anglin, if you are
3 going to ask for a TRO, we want to be present . " And
4 what was your response to that statement? You did not
5 tell me that you had filed it; did you?
6 MR. ANGLIN: I admitted to you that we would file
7 it because you already knew.
8 CHAIRMAN WHITE: I did not know. I did not know.
9 MR. ANGLIN: Well , you -- I remember in our
10 conversation you remembered that - - you stated that the
11 TRO -- that when you file the Complaint and a TRO has
12 been filed and you asked me if I had and I indicated
13 "Yes . And then. . .
14 CHAIRMAN WHITE : Okay. Well, moving along, I guess
15 for the citizens so that they understand, lawyers speak
16 a different language sometimes but in some instances
17 lawyers can ask for meetings with a judge when they
18 cannot get up with the other side or they think there is
19 going to be some irreparable harm and you have to give
20 notice and try to give notice and I am suggesting to you
21 that if you think the county did anything improper, I
22 would like to know exactly what it is and I think the
23 citizens deserve to know what your point of view is on
IMO: Brian Berger
s
i
Page 71 1
9
} 1 that . '
2 MR. ANGLIN: Well , I will keep that in mind.
s 3 CHAIRMAN WHITE: Do you want to answer the
4 question?
5 MR. ANGLIN: Well , I would say did you not in your
6 -- did you not when you were speaking on the phone with
7 the judge object to. . .
8 CHAIRMAN WHITE : I did not object .
9 MR. ANGLIN: To it -- to it being held without
10 anyone else being present?
y 11 CHAIRMAN WHITE: I did not . I absolutely did not .
12 I intended to but I did not . I intended to tell the
13 judge that if there was going to be a hearing, we simply
14 wanted to be present . As is customary in a courtroom,
i
t 15 both sides are heard. A judge decides . But we did not
' 16 talk about the merits of the case . There was no
17 discussion of that . It did not get to that . He recused
18 himself, the other two judges did and they assigned it
19 to a judge from Greensboro.
20 MR. ANGLIN: Judge Gale .
21 CHAIRMAN WHITE : Okay. Proceed with your witness,
d
4 22 please .
23 MR. ANGLIN:
IMO: Brian Berger
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E Page 72
1 Q And then Ms . Bordeaux - - and in your time that
r I
2 you have been in contact with - - with Mr. Berger, have
' 3 you ever had any concerns about your safety?
4 A Never.
5 Q Never. And there is a lot that has been made
6 of this in the newspapers and in -- and in their
7 exhibits . Can you -- can you please state the reasons
}
Y
8 why you have never felt threatened even if his behavior
{ 9 has been -- might be described by some as erratic?
10 A Well , that has not been my experience . I
i
s 11 think like most of us, we have times we get frustrated
3
12 but I have not -- I have not seen things that I felt
a
13 were highly unusual or extremely out of the ordinary or
t
14 anything like that .
15 Q So has he - - has he ever physically threatened
a
16 you?
17 A Oh, never.
t
18 Q Has he ever physically assaulted you?
19 A No.
20 Q Have you ever seen him physi-- have you ever
21 seen him threaten anyone else?
22 A Never.
} 23 Q Have you ever seen him -- have you ever seen
IMO: Brian Berger
I
Page 73
1 him physically assault anyone else?
2 A No.
3 Q And are you aware of what and you are
4 are you aware that Mr. Berger has been diagnosed with
5 autism?
6 A Yes .
7 Q And do you. . .
8 VICE-CHAIRMAN DAWSON: Could you speak up? It may
9 be your mike .
10 MR. ANGLIN:
11 Q Oh, sorry. My question was are you aware that
12 Mr. Berger has been diagnosed with autism? That was my
13 question.
14 A Yes .
15 Q And do you know what the what some of the
16 general - - and do you know that when people have autism
17 that they can generally see their communications with
18 other people differently than other people perceive
19 them?
20 A Yes .
21 Q And can you can you see how other people
22 would have mistaken communications from Mr. Berger as
23 being threatening while he did not intend them to be?
IMO: Brian Berger
3
A
x
}
3
Page 74
i
1 A I -- I think it is a possibility. I have not i
I
2 perceived a threat anytime but possibly.
3 Q And can you - - so just to be clear, you have -
}
4 - you have never felt threatened in anyway by Mr.
5 Berger.
6 A I have never felt threatened nor have I ever
7 witnessed a situation where I felt somebody else would
8 have been thinking they were threatened. I have never
i
9 seen him in a - - in a hostile or aggressive situation if
4
r 10 that is what you are asking.
it MR. ANGLIN: Okay. At this time, Mr. Berger has no
12 further questions for Ms . Bordeaux.
13 CHAIRMAN WHITE : Ms . Huffman, do you choose to ask
14 Ms . Bordeaux any questions?
15 MS . HUFFMAN: No.
16 CHAIRMAN WHITE:
F 17 Q Ms . Bordeaux, I have a couple of questions .
Y 18 Were you aware that or do you know whether or not Mr.
19 Berger tried to commit suicide on August 29 , 2011?
20 A I . . .
21 MR. ANGLIN: OBJECTION; relevance .
22 CHAIRMAN WHITE :
x
23 Q You may. . .
1
i
i
IMO: Brian Berger
I
I
E
E
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0
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Page 75
E
1 A I have no knowledge . I
2 Q Do you know whether or not Mr. Berger was
c I
i
3 ordered by a Judge Criner to stay away from a female
5
I
q 4 named Heather Blaylock because of acts of domestic
e
5 violence? Do you know that?
6 MR. ANGLIN: OBJECTION; relevance .
7 CHAIRMAN WHITE: Well, Mr. Anglin, you - - you have
i
8 asked her questions about what if any risks he might
4
9 pose to her and I think it is certainly relevant as to
10 whether or not she knows of knowledge of risk and -- and
11 things that he might pose to other people . I do not
12 know how it could be more relevant but I am going to ask
13 her to answer the question.
a
14 THE WITNESS : Like most people in the community, I
15 read about it in the paper.
9
i
16 CHAIRMAN WHITE:
17 Q So he never told you. . .
3
F
18 A I have no personal . . .
19 Q . . . about it?
20 A I have no personal knowledge of that .
21 Q Okay. Do you have any personal knowledge of a
22 police report that exists as to -- where it is alleged
23 he tied the doorknobs together in his home?
i
IMO: Brian Berger
i
i �
i
Page 76
I
1 A No.
x
2 Q You did not know about that?
s
3 A No.
4 CHAIRMAN WHITE : All right . Well , that is all the
5 questions I have . Any other questions from this
3
6 witness?
7 (No response) j
8 CHAIRMAN WHITE : Call your next witness, please,
9 sir.
10 MR. ANGLIN: If I could have one second,
s
11 Commissioner White . I call - - I call Commissioner
12 Berger to testify.
13 CHAIRMAN WHITE : Mr. Anglin, with your -- well ,
s
? 14 what I am going to suggest is that we take about a five-
{
x
15 minute break and proceed with Mr. Berger at the end. Is
x
16 that -- if that is agreeable with everyone .
x 17 MR. ANGLIN: That is fine .
18 CHAIRMAN WHITE : We will convene literally within
19 ten minutes or less . How about that? We are in recess
20 until then.
21 (Brief recess)
22 CHAIRMAN WHITE : I call this meeting back to order.
s
23 Mr. Anglin, please call Mr. -- your next witness to the
I
1
s
0
IMO: Brian Berger
i z
r
a
Page 77
1 -- to the stand. i
2 MR. ANGLIN: At this time, we have decided not -- '
3 not to call Mr. Berger to the stand and. . .
4 CHAIRMAN WHITE: Okay.
5 MR. ANGLIN: And we have no further evidence to
6 present .
fi
7 CHAIRMAN WHITE : Okay.
x
s
8 MR. ANGLIN: Just for clarification, we do get a
9 Closing Argument; right?
s
10 CHAIRMAN WHITE : Yes .
f
11 MR. ANGLIN: Okay.
z
z
12 CHAIRMAN WHITE : Absolutely if you --if you want
13 one and I assume you do and just give me a minute here .
x
14 Mr. Anglin, what I will do is afford you an Opening and
15 Closing Argument even though that is the reverse of how
c
16 our court rules go so if you would like to make your
17 Closing Statement now, Ms . Huffman will then be prepared
18 to make a -- a Closing Statement and if you want to
19 rebut, you certainly can offer any rebuttal and within
n
1 '
20 reason, we will not restrict your time unless you pick
e
21 up the phonebook and start reading names out of the
22 phonebook. With that, we will invite you to the podium
23 to make your Closing Statement . Thank you, Mr. Anglin.
I
i
't
IMO: Brian Berger
i
3
Q i
;IE
Page 78
1 CLOSING ARGUMENT
2 MR. ANGLIN: I know you guys are not too
i
Y I
3 disappointed but I -- I left the wake County phonebook
5 4 in my car today. I would like to - - I would like to
5 thank the County Commissioners of New Hanover County and
6 Ms . Copley and Ms . Huffman for having this hearing today
J
7 and I would also like to thank - - thank you
8 Commissioners for allowing us the opportunity - - for
9 allowing me the opportunity to present our case and then
10 at this point, I am going to go into a -- the first
j
11 thing I am going to do is just kind of a general review
12 of the exhibits that have been submitted by both me and j
13 New Hanover County.
14 And one of the exhibits which I -- which I included
15 with -- with my exhibits, Exhibit 1 - - it is a wake
i
16 Forest Law Review article which from my understanding
17 when the County Attorney and the County Board of
I
18 Commissioners was taking -- was formulating this amotion
19 process, I believe it was taken into account .
20 The title of -- the title of the law review article j
I
i
21 is Removing Local Officials From Office in North
22 Carolina and as a quick breakdown of the article, what
23 it does is it sets forth four hypothetical situations
_i
I
j
IMO: Brian Berger
y €
Page 79
z �
1 and then it discusses the -- the potential ways that
3
2 each of the - - and these are all elected officials and
3 it discusses the hypothetical situations which would
4 allow this person, these people, to be removed from
Y
5 office . j
i
i
6 And one of the things - - and one of the things
7 considered in the article is amotion and if you would
8 give me a little leeway - - sorry about this but in one
i
i
9 of the hypothetical situations which was put forth in
I
10 this article which was written by David M. Lawrence -
11 and this was in the Wake Forest Law Review - - Situation
12 (4 ) , the hypothetical : "Three months ago, Commissioner
13 Green was indicted for allegedly raping a young girl .
14 After a widely publicized trial , he was acquitted of the
P
15 rape charge but convicted of assault on a female, a
16 misdemeanor. Conviction of a misdemeanor does not j
4
1
a 17 disqualify a person from office, and Green has made it
18 clear that he intends to remain a commissioner, even
i
19 though the other commissioners are now embarrassed by
20 his presence . "
21 And the hypothetical that was put forth by David
I
22 Lawrence in this case is somewhat analogous to Mr.
23 Berger' s situation; however, the major difference in --
IMO: Brian Berger
s �
t tt
d
3
Page 80
1 in these two hypotheticals is that Mr. Berger has not
s 2 actually been convicted of any crimes . He received --
s
3 �
3 he received a Prayer for Judgment on one of the charges
4 but after he completed the requirements, there was --
k
5 the conviction or the PJC got rid of that . q
i
6 And then if you go -- and then in considering the
7 amotion process for these different hypotheticals , it
8 discusses the relevant case law in North Carolina and I
3
9 guess a lot of the case law was adopted from a decision
t �
10 by a man named Judge Mansfield from Great Britain and it 1
11 is - - I guess the ca -- from the law review, the case
i
i
12 law is clear that someone can be removed if they are
I
13 convicted of a crime that constitutes - - they can be 1
14 removed if they are convicted of a crime that
s
15 constitutes an -- an infamous crime and now these types
i
16 of crimes are considered to be felonies or other crimes
i
2
j
17 which - - or other crimes which are -- which deal with
18 someone' s ability to be trustworthy or not .
19 And then in the Wake Forest Law Review article, it
t
20 goes on to say that -- that Mr. -- that the man in
21 Hypothetical (3) would not be removed. It says - - it
5
i
t 22 says this on Page 556 of the article . "Nor is amotion
23 available in Case (4) . The only possible basis for
i
IMO: Brian Berger
5
3
Page 81
1 sufficient cause in that case would be a determination
2 that assault upon a female is -- is a crime so infamous
3 that a person convicted of it is unfit for public
4 office . To the contrary, it seems quite clear that
i
5 simple assault is not such a crime . "
i
6 So I would argue to you that any -- that any
7 criminal records which have been forth that - - which
g 8 have been put forth by the New Hanover County Attorney
9 under -- under - - are completely irrelevant to his
10 ability to be - - for his fitness for office as a New
f
11 Hanover County Commissioner because number one, he has
12 not been convicted of any of these crimes and number
13 two, there are no felonies that he has been accused of
9
14 and number three, there clearly - - if -- if assaulting a
15 female is not an infamous crime, then anything that he
' 16 has been accused of is clearly not so and that includes
17 the -- and even if he had been convicted of those, they
18 would not constitute a infamous crime .
i
19 Even if he was convicted of assault upon a female,
20 it is not a felony and it is not an infamous crime and
F
21 it does not impact his ability to be a New Hanover
22 County Commissioner so certainly the misdemeanors - - any
i
23 -- any mention of the Domestic Violence Protective Order
IMO: Brian Berger
j
s I
j
3
Page 82 !
fs
1 is completely irrelevant to this case as is the DWI
2 charge which is still pending that he has not been
3 convicted of . That is not a felony or an infamous crime
4 or the driving while license revoked. That is not an
;
5 infamous crime which - - and he was not convicted of it .
6 So a great deal was made about all these criminal
i
7 charges but it is clear from the - - at least the law I
8 review articles that that does not - - that just an
9 accusation of guilt in and of itself -- even several
I
10 accusations of guilt do not rise to the level that is i
1
11 necessary to remove someone as a County Commissioner
I
12 under this amotion process .
i
13 And also, many of the documents - - and I know we
3
14 are rehashing things that we have already gone over but
j 15 many of the -- I would also just go ahead and voice any
i
16 -- my concerns about the admissibility of these -- of
k
17 this evidence also.
i
18 And then moving forward -- and a lot has been made
19 over what has been described -- and in the -- and in the
20 Petition for Amotion, there is a number of statements
21 that were made which quite frankly I do not think anyone
22 preparing - - I do not - - I do not think when Ms . Copley
f
23 prepared this hearing that she had the - - that she had
I
i
IMO: Brian Berger
t
r ,
x Page 83 {
1 the ability to make such blanket -- the blanket
a
2 generalizations that were put forth in the - - in the
3 amotion hearing.
I
4 And some of the claims that were made about Mr.
5 Berger include his mental fitness to participate as a
6 Commissioner and as far as I know, Mr. Berger has never
1 7 been -- there was no accompanying Affidavits or exhibits
8 that were submitted by the New Hanover County Attorney
s
s 9 which spoke -- which were reviews of him that were done
I
a 10 by a psychologist or a psychiatrist or anyone licensed
i
11 to diagnose mental health issues in this state .
12 And I would -- and I would argue that Mr. - - and I
i
13 would argue that Mr. Berger has not -- and I would argue
14 that just blanket generalizations made about his general
15 health are taken completely out of context and that
j
16 without -- and without a licensed - - and without someone
7
17 with some type of license to treat people for mental
18 health problems in the State of North Carolina that
19 those generalizations - - that these broad and seeping
20 (sic) generalizations should not be allowed and should
21 not be considered.
22 And then also, Mr. Berger -- and we have
23 highlighted through his evidence that the tardy list
{
i
i
IMO: Brian Berger
i
t
E
Page 84
i that was submitted by the County Attorney' s office is
2 inaccurate . There were four separate instances where
3 Mr. Berger was present at the meetings on time and even
4 though the official exhibit that was compiled by the
5 County Attorney' s office indicates that he was not
a
6 present, that he was late, and we -- I am not sure how
` 7 it occurred. It might -- it might have occurred through
8 just mistakes made by the staff of Ms . Schult or maybe
x
9 it was unintentionally. I am not sure but - - but it is
i
10 quite clear from those records that he was not tardy I
11 those four times . j
12 And then as Mr. White indicated that approximately
i
' 13 -- he asked if Mr. Berger had been late approximately
r 14 fifty-eight times and I did not go back through and --
15 well, I did go back through and twenty-five of those
16 tardies, he was less than ten minutes late for some
i
a 17 hearings that a lot of the times would last several
3
18 hours so I do not see how Mr. Berger being less than ten
19 minutes late to sometimes hearings that last for
20 multiple hours on end reflects an inability for him to
21 perform his job as a New Hanover County Commissioner.
22 And just as an example, your hearing today started
23 at 9 : 00 A.M. and it got out after -- after eleven
i
IMO: Brian Berger
j
1
s
{
Page 85
1 o' clock so it lasted two hours so even if Mr. -- so even
2 if Mr. Berger was less than ten minutes late, that does
3
3 not affect his ability to be a New Hanover County
4 Commissioner because from my - - correct me if I am wrong
S i
5 but from my understanding, the local government - - a lot
6 of times at the beginning of a meeting, there is just a
g g g. 7 �
n
7 lot of perfunctory matters that are explained like you
8 go through the agenda, give out awards , you kind of
9 discuss -- you kind of discuss what is going to go on in
10 the day so if Mr. Berger shows up late when you are just
y 11 going through what is going to happen later on in the
12 meeting, that does not impact his ability to
13 meaningfully represent the citizens of New Hanover
} 14 County.
t
i
15 And then on to -- and then on to the event with --
16 and one of the accusations, Accusation 11, is that Brian
17 Berger' s access scanner set off security alarms at the
I
18 New Hanover County Center on three separate occasions
19 after business hours and that is see Exhibit 11 and then
4
20 the rest of it says "Documents left by Brian Berger in
i
21 the County Manager' s Office were stamped with the County
22 Attorney' s Confidential Attorney/Client Stamp found only
23 in the County Attorney Office . "
IMO: Brian Berger
a
� 1
Page 86
1 Well , I would argue that you heard from Ms . Schult,
2 as far as she knew, that there was no - - that there was
3 no written policy for when County Commissioners could go
P
4 to meeting -- could -- could go to their office . She
5 said that as far as she knew, they were allowed access
6 to -- they were allowed access to the government office
3 1
i
x 7 twenty-four hours a day seven days a week and - - and
i
8 even if Mr. Berger liked to work late at night or he
9 might have made some type of mistake when he was - - when
10 he took his access card and put it next to the entrance,
11 I do not particularly how -- see how that is relevant
I
i
12 for his ability to -- for his ability to be a County
13 Commissioner when he is - - when as far as I can tell ,
} 14 there was no violation of the policy. There is no - -
15 there is no documents here which indicate any type of
16 office - - that indicate any type of time limitations on
17 any County Commissioners to be present in the building
18 and I guess if there -- if there were, I would like to
t
19 see those .
a ,
20 And then for the - - and then for the County
' 21 Commissioner meeting or for when Mr. -- Mr. Berger
I
22 attached or when he went to see Governor Pat McCrory on
j
23 March 21st, 2013 , that is -- that is an incident which
IMO: Brian Berger
g3 i
i
s
I
Page 87
j
1 has been in - - which was heavily in the news and many of {
2 the Commissioners, I guess, expressed concern about Mr.
3 -- Mr . Berger' s behavior at that time .
4 And as you can -- but I have not seen anywhere and
!
j
5 then in -- and in articles that quote different
6 Commissioners and the Governor' s office, at no point did
E
s
7 they feel -- did Pat McCrory feel that he was being
8 threatened by Mr. Berger so I would say even if -- even
9 if Mr. Berger made any type of -- I mean, even though - -
x 10 even if he does make accusatory statements against
11 different members of the New Hanover County
12 Commissioners or New Hanover County Judges, I would say
13 that is well within his First Amendment rights as a
{
14 North Carolinian and an American.
E
f 15 And going on to -- I guess it is this Paragraph 13
16 in the Amotion Petition that was submitted by the New
x
17 Hanover County Attorney. It says that he slanders
2
5 I
18 numerous leaders in the community including a sitting
fi
19 judge, the current Sheriff, past and present members of
20 the New Hanover County - - County Board of Commissioners
21 and states "I am keenly aware that in the absence of
22 intervention it is possible, if not likely, that it' s
23 only a matter of time before someone gets seriously
I
IMO: Brian Berger
Page 88
1 wounded or murdered. "
R
2 And going back to - - and going back to him
3 allegedly slandering anyone, I have not seen any
4 Affidavits that have been submitted by any New Hanover
5 County employees or any County Commissioners or the
e
6 judge or the Sheriff that state that any -- that his
2
7 allegations are false and there has not been any
8 testimony. well , I guess there was no testimony that
9 was submitted today by the New Hanover County -- by the j
I
10 New Hanover County Attorney' s office where someone came
11 up here and said, "What Mr. Berger said about me is
12 incorrect" with the -- excuse me -- with the exception
13 of Ms . Schult but no one -- I have -- I have not seen
14 anything that says he lied in this .
x
15 And then -- oh -- and then for - - for the argument
9
t
16 that Mr. Berger incurred indebtedness and has not fully J
17 repaid the monies that were owed to (sic) him, I guess
18 in violation of the travel policy that was adopted on
19 June 18th, 2012 , I would state that even if this was the
20 case -- and we are not contending it is - - Mr. Berger
21 checked in the next night or he checked in late the next
22 -- early the next morning/or before 6 : 00 A.M.
23 We would - - or I am arguing that this policy was
IMO: Brian Berger
s
{
1 Y
t
Page 89
1 adopted on June 18th, 2012 . It was adopted
s
2 retroactively to when these incidents occurred and
3 whatever happened, they occurred in 2011 but it seems as
4 if this policy was retroactively adopted and then I
5 applied back to Mr. Berger.
a j
I
6 I have not seen - - in the evidence that was
7 submitted by the New Hanover County Attorney, there has
8 been no mention that has been made of any violations of
I
3
9 him -- of the New Hanover County travel policy since - - i
i
10 since the date it was adopted on June 18th, 2012 , and --
F
11 and I am not sure whether or not he - - and even if he
12 did violate the - - the travel policy that was enacted on j
13 June 18th, the two events, they happened almost nine
F
14 months before and I will give you - - here, let me - -
i
15 give me one second to get the exact dates . One of the
16 dates would have been August 18th of 2011 and then the
i
17 other date was - - was March -- was March 5th and 6th. I
i
18 guess March 4th, 5th and 6th, 2011, so one was over a
r j
19 year before that and one was approximately ten months .
i
20 And moving right along -- and then it says that Mr.
I
21 Berger has created a hostile work environment in his
i
22 communications with New Hanover County Staff from the
23 beginning of his term as a County Commissioner until the
i
IMO: Brian Berger
a
I
i
Page 90
1 present time . And today we have just seen e-mails that
f
2 have been sent by Brian Berger to and from employees of
g
i
3 New Hanover County and -- but there has not -- they are
4 just e-mails that were - - that have occurred over --
d
5 since approximately December of 2010 .
s 6 And there was -- there were no Affidavits that were j
7 submitted today that stated that people felt threatened,
8 harassed or that they felt unsafe when - - when Mr.
3 9 Berger was working. It just -- it just seems as if you
a
10 are making it - - well , there are assumptions being about j
t 11 -- being made about how people took these e-mails but j
j
12 there has been no testimony today that has been offered
s
13 by Bruce Shell or Chris Coudriet about how they took --
14 about how -- about why they considered the e-mails to be
15 so harassing.
16 To me, it seems like a lot of these e-mails -- why
I
17 they may have been - - the e-mails submitted by Mr.
.p
3
18 Berger may have been lengthy. It seems a lot of the
19 times, it is - - it is just a personal disagreement 0
20 between Mr. Berger and New Hanover County staff and
S
X 21 employees and he is not - - and he is not -- and while he
3
22 may make more requests to Ms . Schult than most of the
23 other Commissioners on the board, as a New Hanover
k
IMO: Brian Berger
i
i
t
i X
Page 91
2
IL
1 County Commissioner, she - - she stated that he is k
'F G
2 essentially one of her five bosses and he is able to do
3 that and in the cases where she feels that his requests
4 were unreasonable or she did not have those records, she
E
5 could refer him to someone else .
6 And you pointed out -- and in - - and in the memo
7 that was created by Sheila Schult in response to all the
8 communications, in 2011 there was only approximately
9 nine requests that he made of her or that she took
a - I
10 that she took exception with and then in 2012 , I think
l
11 there were slightly more but they were - - but they were
-t
12 less than twenty, I believe, or less than fifteen so
Y
f
13 they -- she is -- you are - - so evidence was introduced
14 that over a two-year period, this man sent less than --
15 there were less than thirty requests that they took
16 exception with and over a twenty-four-month period, that
3 17 is approximately one request every - - less --
g 18 approximately once every three or four weeks so it is --
19 it is really not that excessive .
f
20 And then going on to the -- and also, I would at
21 this time like to renew my concerns about the evidence {
22 that was submitted by Embassy Suites . Those are bills
i
23 that were sent by Embassy Suites and Bank of America to
i
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IMO: Brian Berger
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y
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9
7
1 the New Hanover County Commissioners office and they are j
2 not -- and there has been no one here to testify about
3 that they are kept in the regularly recorded - - and that
4 they are kept by someone and there has been no person
5 that has come up here to testify today about their
Y 6 authen - - authenticity.
7 And then - - and then the text messages which were
8 submitted by -- that were submitted to you between Brian
9 Berger and Chris Coudriet . I guess there is an
10 Affidavit where he indicates that those - - that those --
9
11 that those messages are truthful but as far as I know,
i
12 there has been no evidence submitted that -- that these j
F 13 e-mails or that these text messages were to - - were --
d
14 that they were taken off by someone who worked for AT&T
z j
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i
15 or Verizon or any type of phone company so they would be
16 -- I would also -- so they should not be considered.
17 And then kind of to summarize what my main concerns
# 18 with this hearing have been, with what - - what has
19 transpired at this hearing, under the - - under the --
20 Mr. Berger has a right under the due process afforded
s �
21 him by both the U. S . Constitution and the North Carolina
22 Constitution. He has due process rights in order - - to
23 a fair and impartial hearing and one of my main concerns
z
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IMO: Brian Berger
:l
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A E
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Page 93
1 is that this is - - that while this is a quasi judicial
i
4 2 body - - I am not going to argue that -- I think that a
3 quasi judicial body when you are possibly interfering
4 with someone Consti -- someone' s Constitutional rights
5 to be an elected public official in the State of North
k
6 Carolina, I think due process would require that there
s
7 are evidentiary standards which are followed by the
8 board.
i
9 So I would say the fact that Mr. Berger - - the fact
' 10 that the board -- even though I did voice my objections
1
11 that the board did accept into evidence the - - did
12 accept into evidence the exhibits without allow - - with
a 13 -- they disallowed -- you overruled my objection and it
14 is completely unfair and arbitrary and does not allow
15 him -- and it did not allow him an opportunity to be
16 heard on the evidence .
5
1
17 Mr . Berger' s -- essentially Mr . Berger' s guilt or
18 responsibility if you will was determined without -- 1
a
{ 19 without the County -- County Attorney having to put on
s ,
20 any evidence besides the exhibits . It was just accepted 4
21 and then the burden was shifted to Mr. Berger and I do
' I
22 not see -- and in - - and in the Campbell Law Review
i
23 article that has also been relied upon for this and the
s
IMO: Brian Berger
i I
5
{
Page 94
3
1 Wake Forest Law Review article, it suggests - - in the
2 case law, it does suggest also that - - in the case law
i
3 that was relied upon for this hearing, it suggests that
s
4 Mr. Berger should be given a full - - like a full -- a
5 full and fair hearing and be given an opportunity to. . .
's
6 CHAIRMAN WHITE: Mr. Anglin, will you yield to a
i 7 question?
i
I
8 MR. ANGLIN: Yes, I will . �
1
9 CHAIRMAN WHITE: Has - - have we prevented you or
10 Mr. Berger from presenting any evidence that you wish us
11 to consider today?
12 MR. ANGLIN: No, you have not .
I
f 13 CHAIRMAN WHITE : Okay. Would you like to call any
a
14 other witnesses? We -- I will let you continue your
3
15 Closing Argument if you would like but the statement j
16 that he has not been afforded a full and fair hearing - -
i
j
17 we will entertain any witness that you wish to call I
18 forward if you feel like you have been deprived that
} 19 opportunity including Mr. Berger.
20 MR. ANGLIN: Well , unless I am given an opportunity
E
i
21 to -- to question any of the other Commissioners . That
3
22 is where the -- then I have no other witnesses that I
23 would wish to call at this time .
s
IMO: Brian Berger
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Page 95
i
1 CHAIRMAN WHITE: So -- so the record should reflect
I
4 2 that you have been given ample opportunity to present
4
3 any evidence - - documentary, verbal testimony -- and you
F 4 have opted not to present anymore evidence other than
5 what you have presented today.
{
6 MR. ANGLIN: But we were not given -- but we were
a
I
7 not given an opportunity to cross examine the
F 8 admissibility of the documents . That is my central
i
s
9 concern with this . They were just accepted into
y 10 evidence over any type of objections I -- I might have .
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11 CHAIRMAN WHITE: I understand. So is it your
f
12 position that you question the authenticity of the text j
13 messages? Is Mr. Berger denying being the author of
3
3
14 those test messages?
15 MR. ANGLIN: Well , I would question the
16 admissibility of the lot -- a lot of the documents that
17 are being considered here as . . .
18 CHAIRMAN WHITE : Which documents would you -- which
i
19 documents would you ask us not to consider? We will
20 certainly take it under advisement and -- and consider -
6
21 - you know, we can consider some, all or none of the
I
22 evidence that has been presented by the county.
23 MR. ANGLIN: Okay.
E
E
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IMO: Brian Berger
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Page 96
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1 CHAIRMAN WHITE: And so which documents would you j
e
I
t 2 like us -- is it your position that are inauthe or
d
3 unauthentic, whatever that word is, and not accurate;
4 the text messages, the manifesto, Number 13 , Exhibit
i
5 Number 13? Mr. Berger admitted authorship of that
6 document at a previous meeting on television. The text
7 messages . Mr. Coudriet testified under oath in his
I
8 Affidavit that they are all valid; that he corresponded
9 routinely with Mr. Berger and that they were accurate .
i
10 I mean, if there is inaccuracies, please share it with
11 us .
12 MR. ANGLIN: Okay. Well, some of -- some of the --
13 some of the objections to the admission of the evidence
j I
14 is not going to be -- is not going to be just the
15 authentification (sic) . It is going to be hearsay,
16 relevance, prejudicial . I mean, there is a whole list
17 of objections .
3
i
18 CHAIRMAN WHITE: I understand the Rules of Evidence
y
19 application, sir. What I am saying is just in common
r
20 sense, which things . . .
21 MR. ANGLIN: Okay.
22 CHAIRMAN WHITE : Which writings that we - - that the
23 county has attributed to Mr. Berger is it your. . .
e
IMO: Brian Berger
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3
S
1 MR. ANGLIN: Okay. Well . . .
2 CHAIRMAN WHITE : . . .position that he did not
3 author?
i
4
4 MR. ANGLIN: Well , I am going to state that the
5 text messages in Exhibit 28 . Those -- my objection to
j 6 that is that they could not be - - well , first of all , I
s
4
7 am going to object to the fact that it is -- the fact
8 that - - that there has been no authentication made .
{ 9 CHAIRMAN WHITE : I understand that . I -- I
t
6
10 understand. I want to distinguish between
11 authentication and basic common sense here . Did Mr.
s
12 Berger author these text messages or not?
13 MR. ANGLIN: I am not sure . We do not . . . j
I
s
14 CHAIRMAN WHITE : We - - we have a statement under
y 15 oath from Mr. Coudriet that he received them from a
f
16 phone number purported to be Mr. Berger and my question
17 -- so we can rely on that and infer permissibly certain i
t 18 facts from that Affidavit and m question to you is what
Y Y
q
19 have you offered to rebut that testimony?
20 MR. ANGLIN: We are offering to rebut that
t
21 testimony that for you to get these text messages into
z
22 evidence, you just cannot rely upon a statement from Mr.
23 Coudriet . You. . .
IMO: Brian Berger E
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1 CHAIRMAN WHITE : Yes, we can and in a quasi
i I
2 judicial , my - - my question is - - Mr. Berger has the
x �
3 opportunity to take the stand and deny authorship of
3
4 them if he would like . He had that opportunity. He
5 waived it and -- and for you to then question the
i
6 authenticity of it - - if -- if they are inaccurate, we
x
7 want to know how you contend - - I am not talking about j
i
8 their admissibility. I am talking about their accuracy.
f
a 9 MR. ANGLIN: Uh-huh.
10 CHAIRMAN WHITE : Do they accurately depict his
11 mental state when he is sending them?
k
12 MR. ANGLIN: Well, Mr. White, I am a little bit
F I
13 confused at this point because earlier you stated that j
14 all the -- that all the evidence was accepted in -- had
9 1
15 been accepted into evidence and that we were not going
i
16 to be able to make evidence objections but now you are
17 changing your mind and allowing me to go back and do so.
t
18 CHAIRMAN WHITE: No, no, no. I . . .
19 MR. ANGLIN: So what do you mean. . .
20 CHAIRMAN WHITE : I just said that really. . .
1
21 MR. ANGLIN: . . .Mr. White?
22 CHAIRMAN WHITE : . . .more is - - is better. I - - we
1
23 have basically allowed anything and everything to come
s
IMO: Brian Berger
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1 into evidence . We want to know the full story. ?
2 MR. ANGLIN: So are you now allowing me -- just to
3 be clear, are you going to allow me to voice objections {
4 to the individual exhibits about their admissibility or
5 just whether or not they are accurate? I mean or
i
6 whether or not . . .
3
7 CHAIRMAN WHITE : Do you not see -- do you not see
i
t
i
8 there is a difference there?
S 9 MR. ANGLIN: Yeah, I see the distinction but I - - I
10 just want to clarify what I am going to be allowed to
11 do.
I
12 CHAIRMAN WHITE : Why do you not proceed with your
13 Closing Argument .
14 MR. ANGLIN: Well, then I guess . . .
i
15 CHAIRMAN WHITE : I guess my point is if you think
16 that Mr. Coudriet or anybody on the part of county staff
17 fabricated these text messages, fabricated any of these
18 documents and attributed them falsely to Mr. Berger, I
t 19 want to hear - - I think we would all like to hear the
i
20 evidence that that is your position.
21 MR. ANGLIN: Well . . .
22 CHAIRMAN WHITE: Not an authentication or a legal
f
23 maneuver about admissibility or not but just really if j
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1
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IMO: Brian Berger
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1 you think that they are -- they are false, how -- show
2 us that .
a
3 MR. ANGLIN: Well , I think we are skipping a -- you
4 are skipping an important step, Commissioner White . We
a 5 should have been allowed to object to their -- to their
6 admissibility in the first place and then before I go
f
} 7 and accuse Mr. Coudriet of - - I am not going to accuse
a
8
3
8 Mr. Coudriet at this point -- at this point of
I
9 fabricating these text messages but also, while this is
10 a quasi judicial proceeding, the North Carolina Rules of
11 Evidence should fully apply and these should not allowed
k
12 to have been - - and these should not have been allowed
13 into evidence but I will -- I will proceed forward with
g 14 my Closing Argument . j
15 COMMISSIONER BARFIELD: Mr. Chairman, I just want
i
16 to make a comment .
17 CHAIRMAN WHITE: Commissioner Barfield.
18 COMMISSIONER BARFIELD: I guess my concerns that I
19 spoke at the beginning of this meeting are - - are such
4
20 that I truly believe that this thing is going to air out i
i
f I
21 in court in either Superior Court or the Supreme Court
22 in our state and in my opinion, we should bring forth
23 everything that we can to embolden the county' s position
I
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IMO: Brian Berger
33t
3
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s
1 one way or the other so that when you get to the next
3 �
2 level, what is presented here is not shot with a bunch
t
3 of holes in it and in my opinion, this thing is going to
i
4 drag out for a moment . We are going to be no closer to
{
5 a conclusion in November of 2014 than we are now and we
6 are going to waste - - waste a lot county taxpayer
"s
Y 7 dollars in the process because I have heard --
f 8 everything that has been presented here today can be
9 construed one way or the other. I just think that we
10 are going down the wrong road.
3
11 MR. ANGLIN: And then -- then - - then also, my
12 concerns about the - - about really -- this is - - this is
13 a very unusual setting that we are in right now because
3 14 essentially it is a process that has not been
15 successfully used against a North Carolina publicly
I
16 elected official since 1935 so there was not a lot of
17 really information about how to - - about the best way to
18 go about that and I understand that .
19 And it is also an unusual situation because -- I
i
20 because - - because in this case, the Commissioners which
!
21 are you, you are essentially the judge and jury but you
22 have your employee working as a prosecutor and you are
23 also -- and you also made the Rules of Evidence about
I
IMO: Brian Berger
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1 what -- what can be admitted and who can be questioned
2 so I question how that can be -- I question how this
3 whole proceeding can be fair when Mr. Berger -- when Mr.
i
4 Ber -- when Mr. Berger even though he has - - we have
5 been allowed to present evidence, there was no j
6 opportunity to cross examine the documents and there was
o �
7 also no opportunity for us to question any of the
5 8 Commissioners who a lot - - who a lot - - who have a lot
t
9 of factual evidence about - - about this case and I guess
a
10 at this point, any -- any examination of any of the
s
a
11 Commissioners will just occur -- will just possibly
12 occur on appeal .
13 And then the -- and then just the evidence that has
14 been submitted that showed he created a hostile work
3
15 environment . That is just sweeping generalizations
i
16 about how people should feel . I have not heard any
3 17 testimony about how they actually did feel ; if they felt
18 threatened by him. It says the staff felt threatened;
19 that they felt that he might be violent .
20 where it has been - - I read through this ; the
21 exhibits . There is no exhibits listed there that states
22 that people felt that they were in any imminent danger
23 from Mr. Berger. It was just - - it was just statements
yt
IMO: Brian Berger
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1 that have been made to the press and if there - - and if
2 there were specifics, I would -- would like to show €,
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3 those . '
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r
4 And then also - - and then also, I would like to say
f
5 that I also object to this entire proceeding because it
g
6 is unclear -- well , in my opinion, it is clear that this
7 is no longer -- this is a question of law for a court as
8 to whether or not the amotion proceeding even exists any
f
9 longer in the State of North Carolina and I would like -
{
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10 - and I would like to differentiate Mr . Berger' s
11 situation from between the two cases that are mentioned
12 in the law review articles and also that were mentioned
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13 -- that were mentioned in the amotion, the amotion
14 motion essentially, that was submitted by the County
7 I
15 Attorney.
16 And the differences are in the case of -- I believe
}
17 -- and it was in the Ellison, the Aldermen of Raleigh,
18 which is the case from the 1880s . It allowed -- it
19 allowed for the removal of Mr. Ellison because he was
20 incompetent to hold office not -- not because of any
3
s
21 mental incapacity or anything but because he simul --
f
22 simultaneously held office with the United States
23 Government so I guess under the North Carolina i
k q
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IMO: Brian Berger
a
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g Page 104 +
1 Constitution at that time, he - - he was unable to hold
x
2 office and he was successfully removed.
3 And then -- and then in the 1908 Supreme Court case
4 which is State ex rel v. Jenkins, they removed him from
i
5 office because - - while it may seem analogous to this
6 situation, I would -- I would say that it was not . He
7 improperly spent money and they gave him multiple �
j
8 opportunities to pay it back and they said if he did
9 not, he would - - he would be removed so even if
a
10 allegedly Mr. Berger did anything inappropriate in 2011,
11 that policy was not adopted at that time so it was just
j 12 retroactively applied to him which is completely unfair.
a 13 And then under the North Carolina Constitution
f
14 which defines what can be reasons for disqualifications
15 from office, I will read to you the three different
16 things that can be - - result in disqualifications .
17 First is any person who shall deny the being of Almighty
18 God. The second one is with respect to any office that
i
19 is filled by election of the people, any person who is
20 not qualified to vote in an election for that office and
s
21 the third -- and this is going to be slightly
22 abbreviated -- is any person who has been adjudged
i
23 guilty of treason or any other felony against the state
5F S
k
i
IMO: Brian Berger
a
4
1
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Page 105
1 or the United States or any person who has been adjudged
2 guilty of a felony in another state that would also be a
3 felony if it had been committed in the -- in this office j
4 or any person who has been adjudged guilty of corruption
5 or malpractice in any office or any person who has been
F
i 6 removed by impeachment from any office and who has not I
i
7 been restored by their right of citizenship in the
3
8 manner prescribed by law.
9 And I would state that it has been - - and in any of
10 the evidence that has been submitted about the alleged
11 crimes of Mr. Berger, he has not - - and in the State of
i
12 North Carolina and in the United States , there is a
:a
13 presumption of innocence and any of the crimes - - and
14 Mr. Berger has not been convicted of any of those crimes
15 and he has also not -- and even - - and even if he was
a
16 convicted, they are not so-called infamous crimes which
17 are felonies and you can see from the Wake Law Review
18 that -- that none of the crimes he has been accused of i
19 were infamous crimes .
i
20 And also getting back to the authority of - - of
21 whether or not an amotion proceeding even exists in the
22 State of North Carolina anymore, I would say that it
4
23 does not . In the Wake Forest Law Review article, it
IMO: Brian Berger
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7
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Page 106
1 states -- it states while it still remains good law,
2 they do not know that that - - there is a - - they do not
3 know if the Supreme Court, if it was appealed to them,
4 if they would uphold the amotion process because what {
R 5 they are relying on is a -- is case law that is over 100
� E
t.
6 years old and I would state over the last thirty years,
a
7 there have been a number of statutory enactments by the
8 North Carolina General Assembly or by the State
9 Legislature which have applied to - - that have been
10 applied to County Commissioners . f
11 So if the -- so if the State Legislature wanted
12 there to be a process to remove - - to remove sitting
13 government officials, I think they would have - - they
14 would have passed something that allowed -- that allowed {
15 for it and the bill - - and the bill -- and just to
i
s
16 highlight that proposition, the bill that was submitted
17 by - - by former County Commissioners at the State
18 Legislature within the last year failed. It did not
19 pass when they tried to create some statutory enactment
E 20 to enable this board to remove Mr. Berger as was
3
21 mentioned by Mr. Barfield.
i
S {
22 So in summation, I would just -- it seems to me {
' 23 that -- that really the decision to remove Mr. Berger
9 Y
IMO: Brian Berger h
k
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Page 107
1 was made well in advance of this hearing and that he has
2 not been offered - - and that he has not been offered a
3 fair opportunity to present his case with just the
4 general admission of evidence and the fact that the
5 burden shifted to Mr. Berger at the outset and even
6 and even if it was a fair hearing, I would - - I would
7 state that the County -- the County Attorney has failed
8 to meet the standard of just cause which -- for good and
9 just cause which is required for Mr. Berger to be
10 removed from office .
11 The -- a lot of the evidence is completely
12 inadmissible but going on from that, he certainly any
13 of the things that he is accused of committing, the
14 infamous crime standard is not met . There were no
15 felony objections or convictions and none of the -- and
16 none of the things he was accused of - - and none of the
17 things that he was accused of, even the assault, it has
18 nothing to do with his ability for honesty or trust
19 or trustworthiness .
20 And then also, the so-called all of the so-
21 called e-mails that are back and forth between Brian
22 Berger and other staff members . It seems - - it seems
23 more to me like just one it seems there are
IMO: Brian Berger
Page 108
I disagreements between between these parties and I do
2 not see how Mr. Berger e-mailing Mr. (sic) Schult or Mr.
3 Coudriet or any other county employees in - - in a manner
4 that they view - - that they take exception to it or the
5 fact that you take exception to it, I do not see how
6 that gives -- how there is any ability through those e-
7 mails to remove him as a County Commissioner.
8 It just says - - so what? The guy sends -- the guy
9 sends e-mails and asks a lot of -- of the staff . It
10 sounds to me more like he is not - - that he is not
11 adequately discharging his job but he is just -- that he
12 just potentially is an overbearing - - overbearing boss
IL
13 and as far as I know, that is not -- being an
14 overbearing boss and requesting too much of your
15 employees does certainly not allow him to be removed
16 from public office .
17 And then at this time I am sure you are aware of
18 this . This is the New Hanover County Board of
19 Commissioners resolution adopting a Code of Ethics which
20 was taken into account on December 6th, 2010 , and
21 Section 2 , Letter H, says that you need to be careful ;
22 being careful not to reach conclusions on issues until
23 all sides have been heard so I would ask you that it is
IMO: Brian Berger
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f
f
Page 109
f,
1 your duty as -- as County Commissioners and as the
5 7
7
}
2 policies -- I guess what your previous board has adopted
i
3 and which are apparently still in effect today that the
' 4 only evidence that you should consider today should be
5 the evidence that was put forth before you by the County
6 Attorney' s office and Mr. Berger and myself and that you
7 should not - - and I know this is very difficult but I
' 8 would ask you to try to -- if you in your mind can
F
9 separate your experiences with Mr. Berger from the last
10 two and a half years and try to be as impartial as you
{
11 can.
j 12 And I know we are only human beings and that is
R
5
13 very difficult but as we have mentioned, this is a quasi
14 judicial body and it is essentially you the five - -
15 including Mr. Berger, the five judges . You should only
16 be considering matters that were put forth to you today
17 and I would ask that you not -- that you not take into
18 account any personal disagreements you have had with Mr.
19 Berger since he became a County Commissioner and that
C
A
20 you put away any - - any notions that you may have felt
21 and what you felt should have happened prior to this
22 hearing and I would ask that you - - that you -- that the
23 New Hanover County Commissioners office has not met its
{
IMO: Brian Berger
7
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3 pf
3
f
1
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Page 110
F
1 burden of proof and that you vote against the amotion
i
3
2 and that Mr. Berger be allowed to serve out his term as
3 a New Hanover County Commissioner and that you follow
4 your responsibilities to the public, to the New Hanover
5 County electorate, and that you do not remove a seated
6 official who in -- when it should really be up to the
k
7 electorate to do so. Thank you very much.
8 CHAIRMAN WHITE : Thank you, Mr. Anglin. Ms .
9 Huffman.
s �
10 CLOSING ARGUMENT
3
11 MS . HUFFMAN: Mr. Chairman and other members of the
12 Commission. Am I close enough to this? When the County
13 Attorney' s office was directed to prepare this Petition
14 in Amotion, we sat down and -- and summarized a variety
15 of concerns over about eight pages of -- of summation
16 and then attached twenty-eight exhibits to that and
t
17 after doing that, we simply ask that you sit and as a
18 board consider whether there is reasonable and just
!S
3 y
19 cause to remove Mr. Berger from this board and - - and
20 that is all the County Attorney' s office has done . We
s
21 have prepared the documents, we have submitted them to
22 you and ask you to take that information and consider
.5
23 whether it is appropriate .
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IMO: Brian Berger
} 77
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(W
1 There has been quite a bit of - - of comment by Mr.
s
2 Anglin about the appropriateness of the documents being
3 placed into the record; being placed into evidence or
4 being placed in the record. That is somewhat different
5 language but for purposes of this quasi judicial
6 hearing, we have used the phrase placed into evidence .
7 Really what is happening is that a record is being
s
8 built for you to consider different documents whether it
I
9 is exhibits that have been submitted to you, whether it
10 is testimony that you have heard, and that you use all
f
11 of that information and determine in your own mind what
i
12 you should appropriately consider and based on that,
E
13 then you will make a decision and it is possible that
14 whatever you decide, depending on what you decide, that
t 15 Mr. Berger will ask for a Superior Court Judge to review
16 all of that and that judge will determine whether your
i
17 decision was appropriate, whether documents and
3
18 testimony that you considered were appropriately
19 considered but for purposes of this hearing, this quasi
20 judicial proceeding, the different documents that are in
s
i
21 the -- the notebook with the twenty-eight exhibits have
22 been with regards to each one of those authenticated by
23 the appropriate person whether county staff or otherwise
IMO: Brian Berger g
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a
1 and they are -- for purposes of this hearing, they have
s
2 been appropriately authenticated and placed into
3 evidence or the record and I would ask you to consider
4 them. a
5 The -- the eight-page petition and then all of the
3 6 exhibits does discuss within the petition the concerns k
4
1
7 that the County Attorney' s office had. As -- as we
8 sitting listening, watching, hearing from all of you, we
9 determined that there were different concerns that ought
3
10 to be addressed in this petition and I will mention
y
11 several of them.
a
12 That it is incumbent that this Board of
13 Commissioners and each individual Commissioner maintain
6
14 the highest ethical standards and local officials must
15 have the complete trust and confidence of the citizens
16 that they represent . That is -- obviously, that is
17 pretty basic and that was an immediate concern as -- as
t
18 we sat and began to prepare this petition; that the
19 citizenry must have complete confidence and trust in
20 their local officials and there seems to be some
21 question of that with regards to Mr. Berger.
k
22 There also was a concern that you as a board have a
i
i
23 duty as a board to remove from this board a person who
6
1
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IMO: Brian Berger
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1 seems demonstratively -- demonstrably unfit and
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2 incapable of being a functioning member of this board.
{
3 You must decide that yourself ; whether it appears to you
F
4 based on all the evidence that has been submitted to you
s
5 in this petition as well as the testimony and not just
6 that but based on your own observations . I mean, that !
7 is basic that your own observations would -- would be a
8 part of your -- of your deliberation and that you as a
9 member of this board have a duty to decide whether it is
c 10 necessary to remove someone who you feel is unfit and
11 incapable of being a functioning member of the board.
12 And you also need to decide -- and it was something
�✓ 13 that the County Attorney' s office felt was important
14 they include in the petition; that you as the board need
a
15 to determine whether you must take some action to secure
16 staff, to secure New Hanover County government staff and
17 yourselves from a hostile work environment and any other
18 security and safety concerns that have come to the
1
19 surface over the last year or so.
20 It seemed to the County Attorney' s office as we
i
21 prepared this petition taking into account all the
22 different documents that -- that we went through and --
} 23 and I am sure all of you understand this petition and
IMO: Brian Berger
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Page 114 f
1 this notebook only contains selected things . There are
2 many documents . There are many different circumstances
3 and times that could be mentioned but we chose
4 particular ones and we simply included selections but it
5 appeared that over the course of recent months that Mr.
6 Berger' s actions and his mental awareness showed a
7 continuing deterioration; that the Attendance Record
8 shows that over the last number of three to six months
9 that there has been a continuing deterioration in his
10 attendance; that over the course of the last year or so,
F 11 there seems to be a continuing at least escalation of
12 what appears to be conspiracy theories or a delusion in
t
13 the correspondence that he has with county staff .
< 14 MR. ANGLIN: OBJECTION to that qualification as
15 diversional .
p 16 MS . HUFFMAN: And in the e-mails that were attached
17 and also even in meetings, there are often rambling
18 tirades, monologues that accuse staff of illegalities
19 and criminal behavior and unethical behavior and I --
20 and I really had no intention of speaking any longer
21 than this but I feel I must because I did not have the
22 opportunity to ask Mr. Berger any questions and
23 certainly it was not incumbent upon him to testify but a y
IMO: Brian Berger
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# Page 115
a
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1 month ago, he was given the notebook that had all of the
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' 2 specific violations that we chose to include and he had
,
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3 the opportunity here today to refute any of those that j
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4 he wished to do so and my intention was to ask him about
5 these different things when he testified and since that
s
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i 6 was not brought forth during the course of the hearing,
� 1
7 I feel it necessary to make some mention of some of
i
8 these things and at whatever point you do not want to
i
9 hear me anymore, then you can suggest that I step down.
10 But some of the things that are included in this
11 notebook in this Petition in Amotion are security and
12 safety concerns that have taken place involving Mr.
;
13 Berger over the last couple of years . These include 911
i
14 calls where a -- a girlfriend and her children felt
15 unsafe and the police were called; a 911 call where
16 police came because according to all documentation, Mr.
i
17 Berger attempted suicide . Included in this notebook is
18 a filed Domestic Violence Order issued by our District
19 Court . There are numerous criminal violations ; the
20 arrest records in the file . Some have been disposed of
21 and some are still pending but I was looking forward to
22 asking Mr. Berger about the particular details of each
23 of these criminal violations .
o
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IMO: Brian Berger
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Page 116
1 There is also within the Petition in Amotion a
n
2 document that indicates that Mr. Berger came into the
3 Government Center during the early morning hours several
f 4 different times over the space of several hours and as
5 Mr. Anglin asked Ms . Schult, obviously there is no
6 restriction on his ability to come in and out of the
7 Government Center but on this particular evening -- and
8 this -- this particular event was only chosen because of
a
9 what took place during this particular evening. It
10 probably could have included many dozens of scanner
11 entries showing Mr. Berger coming in and out at odd
12 hours and there is nothing improper about that .
13 But on this particular occasion, one of the
r '
14 exhibits within the petition shows his coming into the
15 Government Center during the early morning hours and the
16 next morning, the County Manager found - - finding in his
17 chair a -- a fairly thick document that had again
18 tirades and monologues and accusations of criminal
19 behavior and unethical behavior and included on the
20 front of that document sent to the County Manager was
k 21 the County Attorney' s Confidential stamp indicating that
22 when Mr. Berger came into the Government Center during
23 the middle of the night that he was in the County
IMO: Brian Berger
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Page 117
1 Attorney' s private office; that he was in the County
2 Manager' s private office and during this time had put
a 3 together a document again accusing staff of being
f
4 criminal and unethical and illegal .
5 Shortly after this particular occasion is the
6 occasion referenced by Mr. Anglin and an exhibit within
7 the petition showing - - and Mr. Berger has admitted
8 this; approaching the Governor when he came to
f
{ 9 Wilmington and handing him a very interesting document
10 that he also, he admitted, handed out - - handed out in
t 11 Washington, D. C . and the -- this document is disturbing
IL12 if you go through it and wonder what it is all about but
13 the particular reference within the document that was
4
14 particularly disturbing in light of everything else
15 going on with Mr. Berger was the - - was the phrase that
F
16 Mr. Anglin read to you earlier that Mr. Berger in -- in
E
17 his -- in his dialogue within this document said that
E
18 "In the absence of intervention it is possible, if not
19 likely, that it is only a matter of time before someone
20 gets seriously wounded or murdered. "
21 Also included in the petition are numerous e-mails
22 and text messages between Mr. Berger and staff . I am
23 not going to stand here and read to you from those e-
IMO: Brian Berger
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: 1 mails and those text messages . You have had them for a i
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2 month. Mr. Berger has had these selections for a month.
3
3 He certainly could have testified himself about them and
4 what they meant . He could have called any of these
5 people that they were sent to and -- and asked them
6 about them.
7 I would simply suggest to you that you can read
8 them yourself just as Mr. Berger, I am sure, has and you
9 can make your own decision about whether the - - the
10 content of these e-mails and text messages show a
i
11 hostile work environment that Mr. Berger was creating
12 for staff ; whether it is completely inappropriate for a
13 local official to within these e-mails and text messages
14 accuse staff of doing things that are unethical , doing
t 15 things that are criminal , doing things that are illegal
16 and within these e-mails and these text messages just
17 long, rambling tirades that make absolutely no sense and
18 obviously create safety and security concerns on the
19 part of the recipients of these e-mails and text
20 messages .
t
21 Mr. Berger' s case that he presented here today was
22 as follows : There were four things that we learned here
23 that we did not already know and that came out during
i
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? IMO: Brian Berger
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a Page 119
IL1 Mr. Berger' s case-in-chief . Number one, that his friend
2 Ms . Bordeaux does not feel threatened by him. Number
3 two, that he says he showed up at one of the hotels
s
4 during the early morning hours . Number three, that the
S
5 Attendance Record might indicate that several agenda
t
6 minutes had some inaccuracy in them and number four,
7 that he has been diagnosed with autism. Those are the
F
8 four pieces of information that you know now or that has
{ 9 been suggested to you now that you did not know before
j
10 we started and that is it . The remainder of all of this
11 information that is in the Petition in Amotion has not
x
12 been refuted in anyway by Mr. Berger.
13 Again, when the rules of procedure for this hearing
r
14 were set forth a month ago and given to Mr. Berger, it
15 was made very clear to him that -- that this board and
16 this County Attorney' s office wished for this hearing to
17 be a full and fair hearing and that Mr. Berger would be
i
18 given the opportunity in -- in any reasonable way to
19 refute each and every one of these violations or
20 suggested violations that have been made a part and
y 21 incorporated into this petition and he has not done
22 that . He had the opportunity to do that today.
23 Again, the only thing he has refuted or attempted
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IMO: Brian Berger
P
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Page 120 i
1 to is that perhaps there were several inaccuracies about
2 whether he was or he was not tardy to a meeting. He may
i
3 have possibly come in during the early morning hours to
4 a hotel ; that the Clerk received a bill saying he did
i
5 not show up so it was owed but again Mr. Anglin went on
i
6 and on and on about this travel policy and I never
i
7 really understood what he thought he proved.
8 There is a travel policy that Mr. Berger voted for
9 that says when you incur expenses for meetings that you
10 do not attend, then until you pay that money back you
11 cannot travel on county -- on the county card and that
} 12 is all that travel policy is about and Mr. Berger is the
13 one that has made that an issue over and over and over
14 and over again and I am not sure what Mr. Anglin thought
i
15 he proved. Again, the only piece of information that we
16 have is a suggestion that maybe one of those bills that
i
i
17 was in violation of the travel policy - - maybe he did
18 show up in the middle of the night . I do not know.
z
19 Again, this hearing is simply based on yes, an old
E
20 case where the City of Raleigh removed one of their own
21 for what the court called reasonable and just cause and
22 that is all we have to go on. The County Attorney put
23 together this documentation and we are suggesting to you
I
s IMO: Brian Berger r
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9
{
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Page 121
1 that that documentation until it is refuted is just
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2 cause why you should consider finding that Mr. Berger
3 has not conducted himself in such a way that the
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4 citizens have complete confidence and trust in him; that
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5 it suggests that he is unfit and incapable of being a
6 functioning member of this board and that unless you
7 take action that he is exposing staff - - he has and will
I
8 continue to expose staff to a hostile work environment .
9 I think we were all hoping that Mr. Berger would
10 come here today and that he would present to us
11 testimony in some form or fashion that would allay our -
12 - all of our concerns . That has not been done in any
E
13 shape or fashion and so I think it is safe to say that
S i
14 it is reasonable that none of us feel any better now
15 than we did when we started at 12 Noon today. Thank
16 you. j
I
17 CHAIRMAN WHITE: Thank you, Ms . Huffman. At this
18 point, do you wish to be heard anymore? I will -- I
19 will allow you to be heard. Even - - even though the i
i
20 rules do not account for that, I will - - we will let you
21 say whatever you would like to say, Mr. Anglin, that is
i
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22 somewhat confined to new -- new statements or
23 information.
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6{{
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IMO: Brian Berger :
Page 122
1 MR. ANGLIN: Yeah, I will try. I will limit my --
x
2 any rebuttal arguments to the arguments brought forth by
3 Ms . Huffman.
4 REBUTTAL ARGUMENT
' 5 MR. ANGLIN: Well, I guess one of the first -- one
6 of the first things I would like to address in her
7 Closing Statement -- she said -- she said an important
8 fact and that was that Mr. Berger was under no
9 obligation here today to present any evi -- to testify
t
10 or to present any - - any evidence at all and I want you
i
11 to remember that even though the burden was -- was
12 shifted to Mr. Berger by Commissioner White, originally
13 and what I think should -- it should be -- the burden is
14 on the County -- is on the County Attorney to prove
15 using some - - using some -- I guess the just cause
16 standard that there is just cause to remove Brian Berger j
17 and I feel that they have obviously not met the just
18 cause standard that is required for removal whatever
19 that may be . It is unclear from the case law and it is
20 unclear from the facts presented here today.
21 And then another thing is that Ms . -- Ms . Huffman
22 stated that we did - - that we did nothing to allay your
4
23 concerns about Mr . Berger' s behavior and I would -- and i
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IMO: Brian Berger
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Page 123
1 I would say that is irrelevant . It is not our job. It
i
2 is not my job as his attorney or Mr . Berger' s job as the
3 Defendant here to allay any concerns that you might
4 have .
5 Ms . Huffman is trying to take the focus on who the
i
I
6 burden is really on in this case and that is the County
{ 7 Attorney. It is on the -- the burden of proof is on the
8 County Attorney to prove that Mr. Berger is unfit for
9 office and that is important to remember. Remember we
4
3 10 do not - - we do not have to prove that he is fit for
11 office . The County Attorney has to prove that he is --
12 we do not have to prove he is fit for office . They have
13 to prove he is unfit .
14 And then getting to the exhibits, she said that we
t
15 proved four things today and I guess one of the things
16 that she mentioned was that he said that he did not show
3 17 up late to the hotel and that we did not -- and then
18 besides that, we did not offer any evidence and I would
19 counter the only -- the only evidence they have offered
20 that he did not show up at the hotel that night -- there
21 is no sworn statement from any employees from any of the
Y
22 hotels .
23 CHAIRMAN WHITE : Mr. Anglin, I do not think this
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IMO: Brian Berger
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Page 124
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1 board is going to consider whether or not he did or did
f
2 not show up. If he is removed, it is not going to be
3 because of that . I am speaking for myself but if you
4 will continue .
5 MR. ANGLIN: Yeah, I am just -- I am just
's
6 addressing what she has put forth in her argument and I a
7 would say whether or not he showed up at the hotel , that
f
8 is just an employee of the Marriott stating - - stating
E
a
9 that he showed up.
` 10 And then the inaccuracies that were highlighted in
11 the documents prepared by Ms . Schult . I would say that
a
12 she -- that -- that -- that Ms . Huffman focused on that I
13 there were four times out of - - that four of them were
14 inaccurate out of how many ever many meetings there were
t
15 in that time period. Well , I would say when my staff
16 went through how late he was, in twenty - - in twenty-
F
17 five of the -- of the tardies , he was less than ten
3
18 minutes late and I do not -- and I do not see how being
19 less than ten minutes late to a hearing which is
i
20 potentially going to last several hours prevents him
i
21 from discharging his duties effectively as a New Hanover
22 County Commissioner and I brought this up earlier.
23 Especially in the first ten minutes, there - - a lot of
6
s IMO: Brian Berger
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Page 125 !
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1 it is perfunctory and there is really not that - - there
i
2 is really not that much that goes on in the first ten
3 minutes .
` 4 And then if I could read to you the - - the exhibit
5 that -- it is Exhibit 13 and I am - - I am just going to
6 go ahead and read the entire paragraph and this is -- I
` 7 believe this is the document that was given to the
j 8 Governor so the end -- the end of the sentence is the
t
9 one that is mentioned in the petition -- that is
10 mentioned in the petition and that is also into
11 evidence . "I would welcome the" -- and this is the
i
12 start of the paragraph. It is the second paragraph of
13 that page . "I would welcome the opportunity to provide
t
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14 substantive supporting evidence and will travel to you.
15 Please bring outside intervention to New Hanover County
16 or demeaning, misogynist and painfully out of touch
17 elected officials have become so confident that they
18 exist above the law that outside intervention and
i
19 holding any official acting under color of law or
20 abusing their office for personal agendas is very
21 necessary. I am keenly aware that in the absence of
` 22 intervention it is possible, if not likely, that it is
23 only a matter of time before someone gets seriously
j
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IMO: Brian Berger
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1 wounded or killed. " And this sounds in this case . . .
3 i
2 CHAIRMAN WHITE: It does not say killed. It says
3 murdered.
4 MR. ANGLIN: Oh, sorry. Seriously wounded or
5 murdered. And I do not read anywhere there where Mr.
f
6 Berger - - he is just - - he is making -- he is thinking
7 about or he is mentioning possibilities of what - - of
8 what may happen and even if they are highly inaccurate,
9 I do not see from this paragraph how he is threatening
t
10 to do this to anyone; the Governor or the -- or the
4
i
11 citizens of New Hanover County or other employees .
3
12 And then also moving on, I am almost done . And the
13 fact that he - - that he may or may not have handed out
8
r, 14 these documents in Washington, DC, I do not see how that
15 is particularly relevant . I mean, almost if you look at
F
16 it, it is probably good if he did hand them out in
17 Washington, DC, because he did not hand them out in New
18 Hanover County. I mean, it is not being noticed down
19 here . I do not see how who. . .
f
20 CHAIRMAN WHITE : He did hand it out in New Hanover
21 County.
1
22 MR. ANGLIN: Well . . .
23 CHAIRMAN WHITE: In a state of shaking, red eyes
1
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IMO: Brian Berger
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Page 127
(W 1 and drool down his mouth, he handed it to the Governor l
2 of North Carolina in my presence . I witnessed it as did
3 a lot of other people so. . .
4 MR. ANGLIN: Well . . .
5 CHAIRMAN WHITE : . . . if you - - if you have got
6 anything else of a factual nature to say - - it is
i
7 unfactual to say that he did not hand it out to anybody
3
8 in New Hanover. He did. It is on television and he
9 answered questions about it at a meeting about a month
t
10 ago.
11 MR. ANGLIN: Okay.
i
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12 CHAIRMAN WHITE: For about forty minutes . j
13 MR. ANGLIN: Well , then I guess he did hand it to
14 the Governor of North Carolina in New Hanover County but
15 I would say as long as he is not threatening anyone
16 injury -- and I would say he is not - - he is well within
17 his First Amendment rights to state - - to state what he '
18 wants . You know for there to be any - - any type of
I
19 successful lawsuit by an elected official or a
i
20 government official for slander or libel , there is a
s
21 very high standard that the U. S . Supreme Court has set
22 out and if anyone feels that Mr. - - Mr. Berger has made
23 -- has made comments to them which are untrue, I would -
IMO: Brian Berger
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Page 128 f
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1 - I would state that there is a civil legal 'remedy for
2 them to pursue against him for defamation and that they
3 should go ahead and pursue it but he was well -- he was
4 just stating -- and then it is for a court to determine
i
5 whether or not he is liable for any of these statements .
6 And also, she made a point of why - - why I made
f
3
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7 such a big deal about the travel policy and that is easy 1
a
6
8 why I made -- why I mentioned it multiple times . The
9 travel policy was adopted for one trip that occurred
x
10 more than a year before and one trip that occurred
11 approximately ten months before . It was adopted on June
12 5 , 2012 , and the policies -- my problem with the policy
i
13 is that it is being applied retroactively so it looks
14 that -- why -- why was there no - - why were there no
15 concerns that were brought forth before the travel
' 16 policy was enacted when they were asking for their money
17 back?
18 It seems like all the -- that anything that went
19 wrong -- that you felt that there -- well , oh, I know.
20 There were - - apparently there was -- I do not know if
21 there was a policy, a travel policy, in effect at the
22 time he traveled but if there was not, he was not in
i
23 violation of the travel policy at the time that he
�+ 1
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IMO: Brian Berger
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1 traveled if this was the original travel -- travel
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2 policy. The travel policy does not say it has been
3 amended. And - - and at this time, I have no further
4 statement . Thank you very much.
5 CHAIRMAN WHITE: Thank you. At this time, I am
r
6 going to declare that this public hearing and this quasi i
i
{ 7 judicial process is now closed and before we entertain
s
8 what the pleasure of the board may be, we are going to
3
9 take a ten-minute break.
3
10 (Brief recess; Mr. Berger
i
11 resumes seat on board)
IMP
12 CHAIRMAN WHITE: Thank you. We are back from 1
S
13 break. The hearing is now closed. Evidence has been
14 heard and argued from both sides . What is the pleasure
15 of the board?
z
t 16 COMMISSIONER WOLFE: Mr. Chairman.
i
17 CHAIRMAN WHITE : Commissioner Wolfe .
i
18 COMMISSIONER WOLFE: Yes, sir. At this time, based
19 on the evidence we have heard, I make a motion to remove
x
20 Brian Berger as County Commissioner of New Hanover
s
21 County.
22 CHAIRMAN WHITE: There is a motion on the table .
23 Is there a second?
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IMO: Brian Berger
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1 VICE-CHAIRMAN DAWSON: Mr. Chairman, for the
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` 2 purpose of discussion, I will second that . {
3 CHAIRMAN WHITE: There has been a motion made and
4 seconded. Discussion.
5 VICE-CHAIRMAN DAWSON: Mr. Chairman, members of the
6 public, folks that are here today, to our staff, my
7 fellow Commissioners . I took my oath of office to serve
8 the citizens of New Hanover County on December the 3rd
3
7
9 of last year. I have only been in this office
10 representing the people for five and a half months .
? E
11 Most of these occurrences that have been filed in this f
12 amotion hearing and petition today occurred prior to my
t
13 taking office . However, I have personally experienced
14 many occurrences since December the 3rd.
15 We have fairly listened to all sides of this issue
16 as we do in every quasi judicial proceeding that may
17 come before this Board of Commissioners . We all have
18 taken this extremely seriously. We never took anything
i
19 very lightly at all when we even made the decision to
I
20 proceed with this - - with this function, with this
21 amotion process, so it has been a process that we each
22 and every one of us has taken very seriously.
23 We have listened to both sides of the issue coming f
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IMO: Brian Berger
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Page 131
1 in here without any predetermined outcome hoping to
2 learn new evidence . We have as our County Attorney
3 summarized learned several new things about our fellow
4 Commissioner and I appreciate the opportunity and your
5 time in making sure that we knew all of this
{
6 information.
7 I understand the sacredness so to speak of the
I
8 electoral process . I have run as a candidate . I have
a 9 reached out to garner the support of the citizens of New
10 Hanover County. I understand how important it is to --
i
11 for our citizens to have the respect of their elected
12 officials . It is quite clear in our Code of Ethics ; the {
13 resolution of the Code of Ethics that was adopted. I
' 14 believe it was actually Commissioner Berger' s very first
15 meeting, December the 6th of 2010 , which we still abide
16 to today.
17 "Whereas, the New Hanover County citizens deserve
18 to be served by public officials who maintain the
19 highest ethical standards and whereas, the stability and
4
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20 proper operation of the democratic representative
21 government depends upon public confidence in the
22 integrity of the government and upon responsible
23 exercise of the trust conferred by the citizens upon
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IMO: Brian Berger
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Page 132
1 their elected officials . Board members must act in a
3
2 manner that maintains their integrity and independence
t
3 and be responsive to the interest and needs of those
4 they represent . " I could go on and on but just wanted
i
5 to highlight those first few paragraphs .
i
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6 So therefore, I can say quite -- quite sincerely
i
7 that I have taken this process extremely seriously and I
8 am glad we have had the opportunity to listen to both
{
9 sides of all -- all of the evidence and be able to come
10 to a determination today. This has -- this has not been
11 a very easy process at all .
12 One of the very first things I learned when I first
1
13 was -- took office here to represent the people of New 1
i
14 Hanover County was that the County Board of
15 Commissioners is responsible for three employees ; our
i
16 County Attorney, our County Manager and our County
17 Clerk. Those three employees report directly to the
f
18 Board of Commissioners . We are responsible for them.
19 I also learned in one of our first training
i
20 classes; the UNC School of Governments Essentials of
21 County Government . One of the first things I learned;
{
a 22 that one Commissioner has absolutely no authority.
23 Alone we have absolutely no authority to represent this
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IMO: Brian Berger
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9 gg
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Page 133 4
1 Board of Commissioners . As a board and with the y
i
2 consensus of the board is the authority by which we act
3 and can direct our staff to do certain things so,
4 therefore, one Commissioner does not have the right to
i
5 monopolize the time of any member of the staff making
6 many, many unnecessary requests for information.
4
7 With consensus of this board, the majority working {
8 together, we accomplish things for New Hanover County in
i
9 making decisions acting as a board so that is extremely I
10 important . One -- one member has no more authority over
11 any other. It takes the majority of us to represent the
12 board of New Hanover County. 9
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13 As I mentioned, we are responsible for our -- for
I
14 our employees . According to the New Hanover County
I
15 Personnel Policy - - Policies and Procedures, Section
16 6 . 15 , New Hanover County recognizes its responsibility 1
t 17 to build and maintain a respectful workplace for all
18 employees and citizens to enjoy an environment in which
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19 the dignity and self-respect of every person is valued
0
20 and which is free of offensive remarks, material or
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21 behavior.
3
22 This policy establishes a standard for appropriate
23 workplace conduct . This policy covers all county
IMO: Brian Berger
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1 employees including regular, temporary contract workers,
2 volunteers and anyone else on county property or engaged 1
3 in county business with a county employee whether or not
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3 4 on county property. Violation of this policy by any
5 individual will be subject to appropriate corrective
6 action. Violation of this policy by a county employee
9
7 may lead to disciplinary action up to and including
i
8 dismissal .
9 My friends , this policy does not exclude County
10 Commissioners . If we are on county property, we are
i
it doing business with county employees, we are expected to
12 abide by these policies as we do any number of our
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13 thousands of ployees -- of employees across this -- this
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9
14 county. Respectful workplace policy goes on into the
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15 next section. Supervisory Management Responsibilities :
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{ 16 Supervisors and managers are responsible to immediately
17 act upon any situation involving disrespectful behavior
18 and it goes on and on.
1
19 The bottom line is coming aboard new here in
i
20 December to represent the citizens , I take my
21 responsibility extremely seriously and knowing that I am
22 responsible for three employees and, therefore, they are
23 then responsible for other employees , if there are
1
IMO: Brian Berger
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Page 135
1 reports of harassment in the workplace - - and it does
3
3
2 not have to be physical . Harassment can take many
F
f
3 shapes ; verbal , written, et cetera, and if there have
4 been reports going on that I learned having only been
5 here five and a half months or the first of the year,
3
6 this has been going on for a couple of years that our
7 employees have been enduring harassing workplace
8 environmental issues and nothing had been done about it,
9 I felt it was my responsibility to take action and look
10 into it .
11 I have the -- we have the responsibility for the
I
12 safety and security of our employees . Not only j
13 harassment free but safe and secure environment where
14 they can work and do the -- do what is necessary to
15 serve the citizens of New Hanover County so I take this
i
i 16 extremely seriously.
t
17 If we did not do something, if we have not taken
18 any action to allay the fears of our employees to
i
19 provide for a respectful and safe workplace environment
20 and if something had happened, we would be responsible .
i
f 21 We are responsible for these employees . We are
22 responsible for providing a safe workplace . If
23 something had happened and we had not even tried to do
9
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7
IMO: Brian Berger
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3 =
2
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i 4
1 anything about it, it would be extremely irresponsible
2 on our part . I
1
3 So yes, I take this very seriously. I am glad we
1 4 had the opportunity to hear all sides of this issue but
5 the safety and security, representing the citizens -- of '
6 our employees as well as representing the citizens of
£
7 New Hanover County is first and foremost . I honestly `
s
I 8 wish that we were not here talking about this today.
9 Quite frankly, talking about tardiness , all of these
i
1
10 little petty things, those are just - - those are petty
{ 11 quite frankly when it comes down to the serious issues
12 of safety and security.
13 I mean Mr. -- Mr. Berger did not even show u for
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14 agenda review last Thursday. Many times we have
i
15 finished our meetings before he has even occurred so
16 being a couple minutes late in your opinion may not be a
,
17 big deal but we can get a lot of business done on behalf
I
18 of New Hanover County in a few minutes time . He did not
I
19 even attend last week' s meeting.
a I
20 You asked that we put our -- any -- I am j
3
21 strangling. You asked that we put anything -- any
22 issues aside that we may have coming into this . Quite
f
23 frankly, I have never had an argument with Mr. Berger;
3 j
IMO: Brian Berger
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a
1 never. As a matter of fact, I have talked to him one
2 time since I became installed in office .
i
{ 3 November the 29th after agenda review, Commissioner
i
4 White and I sat down with you before we were installed
1
5 so we were still Commissioners-Elect so we could all I
4
6 three meet together and we talked about the benefit of
7 turning a new leaf; turning a new page . Let' s all work
8 together. We are starting fresh. We have a new board.
9 Let' s work together, come to meetings on time, go to
x
10 your committee meetings, make your commitments like you
f
11 are supposed to and we -- we were doing our best to }
12 reach out and to let him know that we wanted to work
3
13 together for the good of New Hanover County.
y 14 What happened a few days later? Showed up in the
a
I
15 Star News statements by Mr. Berger saying that Mr. White
f
16 and Ms . Dawson just would not sit down and talk to him. ,
17 Okay. I am here . You told me that none of these !
a
18 accusations - - nobody is here to attest to this . I am
E
19 attesting to you right here and now and from that day
20 forward, I made a policy not to be around Mr. Berger
i
I
21 because you do not know without a witness or without
22 being in a public meeting what he may do or say so I
23 felt like it was better for me to be able to do my job
{
IMO: Brian Berger
a
4
4
Page 138
1 that the people elected me to do is to only communicate
' 2 in a public open meeting and that is what I have done
I
3 for five and a half months so I can tell you he goes to j
4 the press and says things that are not true and you have
i
i
5 said no one in these - - supplying these Affidavits was
6 here to testify. I am here to attest to that fact .
7 That has happened.
8 Again, I wish that we were not here needing to deal
i
9 with this . I honestly -- we have tried to work with Mr.
10 Berger. He has been a safety risk to our staff and
i
I
it quite frankly to himself . I wish that he would get the
12 help he needs if he needs help . Today is the first I
13 had ever heard of that he had been diagnosed with I
i
14 autism. No, I had never learned that so yes, I have
15 learned a lot of things today in this -- in this
16 hearing.
i
17 I wish that he would understand how he could be of
18 help to the citizens that he was represented - - that he
19 was elected to represent . I wish that he would resign,
20 take it upon himself to get help, to surround himself
f
3
21 with his family, get the help that he needs so the
t
22 citizens of New Hanover County can then be represented
23 by a five-member board.
i
s �
IMO: Brian Berger
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a t
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1 In the meantime, I want the citizens of New Hanover
2 County to understand that you have four dedicated public
3 servants here ready, willing and able and have been �
4 representing the citizens of New Hanover County doing
5 the work; four doing the work of five . That is fine .
t
6 We are -- we are willing to do that . We have been doing
7 that so the citizens of New Hanover County' s business is
8 going to be done . We are going to be representing them
9 and in the best of our ability so thank you, Mr.
10 Chairman. I believe that is all of my comments at this
g
11 time .
12 CHAIRMAN WHITE: Thank you, Vice-Chairman Dawson.
13 Commissioner Wolfe, Barfield or Berger, any comments or
14 discussion?
1
15 COMMISSIONER BERGER: Yes, Mr. Chairman.
16 CHAIRMAN WHITE: Commissioner Berger.
I
17 COMMISSIONER BERGER: You certainly heard a lot
i
18 today. Unfortunately, a lot of it has been '
I
9
't
19 excruciatingly dishonest and that is largely why we are
20 in this situation to begin with because I was elected.
21 I did not buy my seat . My seat was not purchased like
s
22 some seats up here . I was elected by the people to
e
23 reform government because they were sick and tired of
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IMO: Brian Berger
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Page 140 f
1 being lied to by the people sitting up here . They were
2 tired of back room deals like what happened with Titan
a
3 Cement and when I ran my campaign. . .
4 CHAIRMAN WHITE: Will you yield to a question? I
5 COMMISSIONER BERGER: Sure .
6 CHAIRMAN WHITE: What -- what happened with the
7 back room deals with Titan Cement and what -- what if
i
8 any criminal wrongdoing are you aware of that any four
I
9 of us have engaged in, sir? We -- we did this a month
I
4
10 ago. Now is a great opportunity for you to offer }
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8
3 11 comments about that .
n
12 COMMISSIONER BERGER: I . . .
i
13 CHAIRMAN WHITE : Not just statements but facts;
i
14 evidence .
15 COMMISSIONER BERGER: If you -- let me correct me .
16 I was referring back to when I campaigned for office
a
17 which was, if I am not mistaken, two years before you i
18 did so my reference was not to you. I know you were not �
I
19 sitting on the board at that time and I did not mean to
i
20 imply that you were . I was talking about the situation
1
21 when I ran and how important it is to keep my pledges
22 which -- I have not been perfect .
23 Certainly, my personal life has not been perfect
IMO: Brian Berger
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Page 141
_ s
1 but when I am up here and I vote, I vote as consistently
s
2 with what I promised when I ran as I possibly can and I
i
3 take that very seriously and I find it extremely
4 insulting to have my honor and ethics questioned by
5 somebody who has been here for - - up here for maybe a
,
I
6 month and there is not a single combination that - - the
i
' 7 four of you combined have not sacrificed nearly as much
8 as I have to keep my word and I take that so seriously
9 that people that know me know that I will live on the j
i
10 street to keep my word before I would ever get up here
i
11 and do something that was morally wrong or dishonest
i
i
12 relative to the promises that I made when I ran.
y 13 And it is unfortunate that my views are not always j
14 consistent with the four other members of the board. I
15 wish it could be . I wish every vote could be five to I
i
16 zero. I do not see how four - - a four to one vote is so
17 extreme . I mean, I know there is efforts to try to keep
18 things under wraps and distract people from coming tax
19 increases and increased utility rates and I am a great
a
20 distraction.
i
,
21 I recognize that but the one thing that I want to
22 be most clear about and then I will finish and be gone
23 but when it comes to the duress and referring to things
;
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3
3
IMO: Brian Berger
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4
' S
Page 142
1 I have written as manifestos , it is very easy to take a
2 forty-page detailed letter to the Federal Bureau of
3 Investigation, the FBI , the United States Department of I
i
4 Justice, and I could be wrong but my understanding is j
I
5 that these law enforcement organizations take lying very
i
6 seriously.
7 I do not know if it is myth or not that lying to
8 the FBI carries a mandatory twenty-year sentence in a
i
9 federal prison but anybody that thinks I am that crazy
i
10 does not know me, has never talked to me and anybody
11 that has knows that I take the business that occurs up
- 1
12 here extremely seriously, more seriously than I take my
13 own well being, and one look at Page 1 of just one
14 letter from December 2011 makes it very clear that when
15 I talk about duress, I am talking very specifically
16 about fears about my own safety, not a threat to anybody
17 else but the threat that I felt from -- and I dismiss,
18 you know, that threat and I dismiss conspiracy theories .
19 I made that very clear but I also made it clear that
20 there were things going on that made me concerned that
21 if they continued to escalate that my safety was in
22 danger so when I talked about threats, it was about my
i
3
23 own safety.
1
1
IMO: Brian Berger
5
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Page 143
4
1 It was in no way - - and I think it is disgusting
i
2 that anybody would imply that I was in anyway inferring
3 or implying that I would ever harm somebody else and I
4 have not . I would not and to even assert accusations
5 that in a domestic environment, a public environment,
6 that I have ever harmed anyone physically, threatened
7 anyone, made an aggressive gesture towards anyone, those
8 are absolutely 100% false, untrue and anybody that would
I
9 get up in front of you and suggest that I threatened
i
10 them, I posed a threat to them, particularly those who
11 have not even spoken to me in two years and have not
12 even seen me outside of an environment where there have !
13 not been fifty other people around because when I am at
1
14 the county offices before I was locked out, I would
i
15 typically go and get my mail at off hours when there was
16 nobody there to threaten but for anybody to make that
17 kind of an assertion is apprehensible (sic) to me and it
18 is time to restore some honesty to New Hanover County
19 government and I am hopeful that this will not be the
i
20 end of this process . i
21 I know it is rigged. I know what will happen today
22 has already been determined. I know my predecessor was
23 determined five months ago. I could tell you who that
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IMO: Brian Berger
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Page 144
1 is and it is that choreographed behavior that I ran
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2 against, I continue to oppose and until such time as I
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3 am formally and within the bounds of the law which I do
4 not think will happen because it is unconstitutional but j
I
5 until that time, I am going to continue to stand up and j
6 resent the truth and when I am wrong, when I make
P g,
7 mistakes, I will do my best to admit it .
8 I am not perfect but what the board is doing is
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9 wrong. The lies and deceptions that have been presented
r
10 today are wrong and I hope that with more than two days
11 to prepare a response to those lies that the picture j
i
m 12 will become clear about what actually has happened
3
i
13 within the last two years that I have been on the board
14 and the last five months as well . Thank you, Mr.
15 Chairman. i
16 CHAIRMAN WHITE: Mr. Berger, what lies and
i
I
17 deceptions have occurred here today in your opinion?
i
18 COMMISSIONER BERGER: First and foremost, the idea
19 that I would threaten anybody else when it is very clear
20 in my correspondence which has been cut and paste and !
21 supposedly into some type of manifesto; that it is very j
3
22 clear that I am talking about fears about my own safety
23 and the safety of those close to me, not in any way,
IMO: Brian Berger
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Page 145
1 shape or form anything even remotely threatening anybody
t 2 else in any manner whatsoever and if I question the
3 conduct of -- and we are talking about maybe five
B'
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4 employees tops in two years . Let' s not make it out like
5 it is a thousand employees that I have had contact with.
6 We are talking about a few employees at the highest
7 levels who have engaged in unethical or illegal
8 behavior.
3 f
9 CHAIRMAN WHITE : Such as?
10 COMMISSIONER BERGER: Such as lying in public
11 meetings about . . .
q
12 CHAIRMAN WHITE : Who? Who?
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.? 13 COMMISSIONER BERGER: . . . general statutes .
14 CHAIRMAN WHITE: Who?
i
15 COMMISSIONER BERGER: Well , in that case, I would
�{ I
16 have to say that the County Attorney misrepresenting a
j
17 general statute regarding appointments and removal of
s �
18 members of the Board of Social Services . It is very
a
19 clearly spelled out . There is no gray area. It is
20 about the clearest law I have ever seen and I am not a
21 lawyer but it is very clear and to sit here and listen
22 to a dialogue between the Vice-Chairwoman and the County
23 Attorney about how that settled matter and it is settled
s
5
f IMO: Brian Berger
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Page 146
1 and complete disregard and completely opposite to what
i
2 the law says . It is wrong and somebody needs to get up
3 and say "Look, I do not know where you are getting your
i
4 information from but here is the law. Where is your
5 interpretation coming from that you would actually get
6 up in front of a public meeting on TV and tell the
3
7 people of New Hanover County that the law regarding
8 removal of Social Service Board members is entirely
7
9 different from what the general statutes state?"
10 And that is just one example of many and I do not
11 like being in this position. You know, I prefer to work
t
12 quietly and certainly when I feel that being called out
13 publicly on an issue where the environment is
14 necessarily appropriate like our back and forth on the -
15 - I guess the manifesto question you had asked me a few
16 meetings ago. I did not feel that was the appropriate
I
17 time or place to address that .
18 I think today here, this was a much more
i
19 appropriate time and place for that and I hope that has
f
20 been clarified at least to some extent that -- and I g
i
i
21 hope it has also been clarified at this point that I did
22 not attempt to assassinate the Governor of North
23 Carolina with drool . I happen to like the Governor of
6
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IMO: Brian Berger
1
5
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Page 147
i
1 North Carolina. I support Governor McCrory and I think r
2 he is a rising national star politically and I did not
3 try to assassinate him with drool as some have alleged.
4 I want to be very clear about that .
5 CHAIRMAN WHITE : If today is not an appropriate day
6 or April 8 was not an appropriate day to talk about
7 these things, I do not know when is . The citizens are
8 watching and, you know, you looked at all this stuff . s
9 You got it a month ago. Did you author these text
10 messages or did you not? Did you send all these text
11 messages to Mr. Coudriet; yes or no? I mean, you do not
i
12 have to answer but . . .
13 COMMISSIONER BERGER: I have not reviewed them. I
f
14 will not dispute them.
15 CHAIRMAN WHITE : Anything else?
16 COMMISSIONER BERGER: Well , if you are giving me
i
1
17 the opportunity then yes . I would point out that much
18 of what has occurred for the last year-plus has been
I
19 based on an extremely discriminatory policy where every
a
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20 single county employee falls under one policy and there
j
i
21 is one other policy that applies to only one individual ,
i
22 one county employee, and that would be me .
23 There is a policy for some 1600 county employees
a !
IMO: Brian Berger
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{
1 and then there is one for me and if that is not the f
2 definition of discrimination, then I am not entirely
c
i
3 sure what discrimination means when you pick out one
4 person and without justification other than a long-
i
i
5 harbored dislike of somebody because of things they said
6 when they ran for office a few years earlier as was the
¢i
7 case with the individual Chairman at the time who signed g
8 that particular discriminatory policy.
9 You know, that is the problem and it is unfortunate
10 that -- if it was up to me, that -- my witness list
11 would have been several hundred people long and I was
12 told that was too many so it was narrowed down to twenty `
13 and to what, maybe one or two that were actually here
14 but there is a lot more individuals that have a lot more
15 to offer and it is unfortunate that they did not have
16 the opportunity on both sides whether they despise me or
17 not just -- just to have an opportunity to get up and
18 speak the truth as they have experienced it and
i
19 understand it and I do not think that two days to 4
20 prepare was either fair or sufficient for myself and my
t
21 counsel to over the course of one weekend be able to
22 prepare for this .
i
{ 23 CHAIRMAN WHITE : Did you start preparing Saturday?
i
IMO: Brian Berger
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Page 149
1 COMMISSIONER BERGER: The . . .
2 CHAIRMAN WHITE : That was two days ago. E
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3 COMMISSIONER BERGER: It might have been three days j
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4 ago. It might have been. . .
5 CHAIRMAN WHITE : Friday?
3
f
6 COMMISSIONER BERGER: . . . last week.
7 CHAIRMAN WHITE : You started preparing Friday.
8 Anything else?
1
9 COMMISSIONER BERGER: That is it and I thank you
10 for the time, Mr. Chairman. I do thank you.
i
11 CHAIRMAN WHITE: Yes, sir. Any other questions or
12 comments from members of the board?
13 COMMISSIONER BARFIELD: Mr. Chairman. {
14 CHAIRMAN WHITE: Commissioner Barfield.
_S
i
15 COMMISSIONER BARFIELD: I would like to say -- and
i
16 answer a couple of questions but would I like for '
j
17 Commissioner Berger to not be on this board? Yes . In
18 2011, I sat in your seat as Chairman of this board. I
1
i
19 called a press conference and asked Commissioner Berger
20 to resign. Have I experienced some of the things that
21 our staff has said? Yes . Do I share their concerns and
I
22 understand their concerns? Indeed I do as I am the only a
23 Commissioner that has been here since Commissioner
IMO: Brian Berger
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Page 150
1 Berger got elected in 2010 .
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2 My concern is simply this process and the process E
E
4
3 and the road that we are going down. Trying to do the
s
4 right thing by the wrong means still has the word wrong
5 in it and in my opinion, I believe that this is
6 something that is going to come and bite the county on
7 the foot and everywhere else that it can bite the county
4
8 long-term.
9 I have been on this board long enough to see
10 situations where Commissioners have sat here and for one
11 reason or another make decisions and then in hindsight
12 wish they could have made a different decision and in
13 many cases -- in a few cases, they did go back and
14 actually reverse the decision that was made .
15 As Commissioner Dawson was talking about the role I
i
16 of a Commissioner, I am actually serving on the State ?
17 Board of Directors for our County Commissioners
18 Association chairing our President' s mentoring
19 initiative and one thing that I can tell you is that
20 each Commissioner does have the ability to represent the
21 citizens of our community. I
i
22 It is not that we cannot make board decisions . we
23 can go out and represent you all every day. I do that
ale
IMO: Brian Berger
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Page 151
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1 every day that I wake up. I go and speak on behalf of
}
2 the board. I do welcomes throughout our community on
3 behalf of the board and that is one reason why I was
4 chosen by our President to lead this particular
t
3
5 initiative and serve as a one-year appointment to our
6 Board of Directors . 3
7 I know that from a state level , many people are
8 watching the decision that we make here . I was in
9 Raleigh last week attending the Tax & Finance Committee '
10 meeting for our State Association and asked some of our
11 top executives there and other Commissioners their
g
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12 thoughts on this process and it is scary because it is
13 untested and it is untried.
14 What should have happened in my opinion again is
15 our local delegation should have passed a local bill
t
16 allowing the citizens to remove Mr. Berger. You know, i
17 to me it is too much power put into four people' s hands
18 and my question as I asked before is who is next?
1
19 If you are not a part of the right political party,
20 if you do not have the right color or skin, if you are
21 not this particular sexual persuasion, who is next is my
22 question and in a country where we have seen a flux and
23 people having the ability to vote, those questions in my
}F4'
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IMO: Brian Berger
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Page 152
1 opinion are very real .
F
2 My father sat in the seat where Mr. White is
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3 sitting and I have sat in that seat as well as Chair of
4 this board and we have had to make tough decisions . My
i
5 question again is who is next? As I said earlier, the
6 old saying absolute power corrupts and in my opinion, s
j
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7 this is too much authority and power to put into four
F
8 people' s hands that may have a bent one way or another
i
9 on any particular issue .
i
10 Again, Sheila and your staff, I understand your
i
` 11 concerns . I have been here . I have had some of the
4
12 same concerns . My wife and children have had some of
I
13 the same concerns . My children have voiced those things
14 to me . I understand where you are coming from but
i
I
i
15 separating the emotional part from reality in terms of
16 my role as a County Commissioner and my role as a leader
a
17 within this community, I cannot see that this is the
4
f
F
18 right thing to do.
i
19 Again for the citizens out there, I am in agreement
. 20 that Mr. Berger needs to be off of this board. I j
0
21 understand he has issues and I would love for those
22 issues to be addressed by someone that can help him get
23 the help if he needs . From a personal standpoint, I
i
IMO: Brian Berger
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Page 153
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1 love every person sitting on this board. I am -- I have
2 no other choice but to do that but with that being said,
i
3 this process in my opinion -- I think if this thing goes
4 to another level in terms of a court, I think that our
i
5 staff is going to be challenged at best to defend what
f
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6 has been said here today.
i
7 Again, when you have a quasi judicial board -- and !
8 I have been on this board for four and a half years . I
i
9 have done a whole lot more of these than this current
i
10 board has . I understand the standard that was said
I
11 about not having your mind made up before you get to
12 this dais and I do not know what is in other people' s
i
13 hearts . I can only tell you what is in mine . I do not
s
14 have the ability to predict what is in someone' s heart
i
15 but I can know from past conversations that in my
i
16 opinion, there was a foregone conclusion before we got
a
1
r 17 here of what was going to happen on this day. Be that
E i
18 as it may, as I said before, I am not in agreement of
19 this process but I am in agreement that Mr. Berger needs
20 to step down off of this board and continue life in some
i
21 other form, shape or fashion. Thank you, Mr. Chairman.
j
22 CHAIRMAN WHITE: Commissioner Wolfe .
i
23 COMMISSIONER WOLFE: Thank you, Mr. Chairman. I
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3
° IMO: Brian Berger
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Page 154
1 have had during the last three years the joy and
' 2 privilege of being a public servant, the last five of
E
3 which have been as a County Commissioner, and I was
4 given some advice three years ago by former County
5 Manager Bruce Shell when I asked what to do when I got
6 into a situation where politics might be involved and
F
f
s
7 ideas were different and he said, "You have to look
8 inward and do what is right . "
9 I have never forgotten that . It was an important
I
10 lesson that he gave me and one that I have tried to live 1
11 by and I can say that while Brian' s tardiness and
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12 missing important meetings shows a -- in my opinion a
13 serious breach of his responsibilities and while he may
E
'e
14 have flaunted the county' s policies, Personnel Policies
15 and Procedures, shows a sign of being unethical, these
9
16 are not sufficient cause for him to be removed from
17 office that the voters elected him to.
18 However, I am concerned about his erratic behavior
E
19 and he can say he has not hurt anyone . I looked at
r
20 Restraining Orders . I see these . More importantly, I
21 have been in the office . I have seen senior staff �
22 ladies cry in fear. I have -- I am seventy-three years
23 old. I have run major corporations and the fact that I
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IMO: Brian Berger s
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Page 155 `
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1 have only got five months of political experience, maybe
2 that is a blessing but I have had responsibility for
i
3 6 , 000 employees nationwide and there is no way I would
4 allow this type of behavior to be taking place in a
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5 corporate level ; a private corporate level . It is just
6 not done but somehow we think it is okay because someone
7 was elected by the people to violate human dignity and
9i
k
8 their rights . ?
I
9 Mr. Barfield, this may go down the road. We may be
i
10 involved in a horrendous lawsuit and spend a lot of
11 money but sometimes you have to stand up and say "Do
12 what is right . Be ethical . " These are my standards .
E
13 This is my way; perception of doing business . This is
14 my life and this is what I stand for so if I err, I will
15 tell you again I cannot apologize for I would rather
16 fail in this endeavor by not doing right . It is
17 important that we do what we think is necessary and if
r 18 we fail , then take those consequences and I am prepared
19 for it .
20 Mr. Berger, I wish -- I wish that what we tried to
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3
21 do via the censures that we had from the Republican i
1
22 party and from this august body that we beg basically
23 for your resignation but that is not in- the cards for
. i
IMO: Brian Berger '
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Page 156 E
1 you and I assume - - I can only assume that that might be
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2 part of your autism; however, I do not know. I am not
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3 qualified to say that but in the final analysis, I can
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4 look the public in the eye and I can look in a mirror
5 and I can say unequivocally without secret evasion of
6 mind that I am doing what I think is right and that is
7 the only excuse I can offer.
8 CHAIRMAN WHITE: Thank you, Commissioner Wolfe .
9 Serving in office is not a right . It is not a piece of ?
10 property. It is a privilege and it is a privilege that
11 is revokable some would argue simply by the will of the
12 people at the next election but with the exception of
13 Mr. Wolfe, the rest of us were also elected and when
14 they elected us, they elected us to make the best
15 decisions we could given the information that we were
16 given.
17 I came here today, contrary to what Mr. Barfield
18 would suggest which I take great and extreme objection
19 to, with an open mind. I was hopeful that I would hear
20 that Mr. Berger was under the care of a doctor; that he
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21 was getting help, being medicated and he was confronting
22 his problems as I have seen countless clients of mine,
3
23 countless members of my community, do.
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Page 157 t
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1 There is always a path forward whether you have got f
2 autism, whether you have got schizophrenia, whether you
3 have got paranoid delusional disorder or a combination
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4 of all of those compounded with substance abuse;
5 whatever. There is always a path forward and I have
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6 seen the success stories over and over and over again so
7 when I came here today, I was hoping to hear those
8 things .
9 I was hoping to hear that "Guys, fellow
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10 Commissioners and citizens" -- if I am Commissioner
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11 Berger, I would have wanted to hear or say "I am sorry
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12 for the misunderstandings . I do have a condition. I f
13 have some mental health concerns . It is evidenced in
14 these irrational and rambling monologues and text
15 messages and I am doing something about it . I have got
16 all these people here in the audience with me . They
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17 love me . They drive me around. They campaigned for me
18 and I am -- I am using hem as my support system and I
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3 19 am getting help and I want your help, fellow
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20 Commissioners . " I did not hear that . I heard nothing
9
21 in rebuttal to offer us any assurance or to abate our g
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22 concerns at all that something bad is not on the horizon
23 with Mr. Berger.
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Page 158
1 COMMISSIONER BERGER: The only one up here in any
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2 danger is me .
3 CHAIRMAN WHITE: We see it over and over again from
4 people all around the country that do things that are
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5 unpredictable and we also see Mr. Berger today dressed
6 up in a suit . Oftentimes he looks fine and he is - - he
7 is composed and -- and doing well and then we receive e-
2
8 mails and text messages at two and three and four in the
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9 morning with a completely different perspective . It is
10 like it is a different person. Sometimes we see that
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11 person during the day. Our staff sees it a lot more and
12 so we have an option to do nothing or to do something.
13 COMMISSIONER BERGER: Could you refer to one of
14 those e-mails in the last five months since you have
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15 been in office? Could you reference an e-mail that
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16 would fit that?
17 CHAIRMAN WHITE: Mr. Berger, there are e-mails
3. 18 after e-mails that you send that say things that are
19 irrational and delusional and untrue and it depicts a
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20 mental picture for me and others that we are concerned
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21 about our safety and the safety of our staff . This . . .
22 COMMISSIONER BERGER: Like drooling on the
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23 Governor.
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IMO: Brian Berger i
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1 CHAIRMAN WHITE: No one suggested you drooled on
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2 the Governor.
3 COMMISSIONER BERGER: You did.
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4 CHAIRMAN WHITE: You were -- you were drooling. . . $
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5 COMMISSIONER BERGER: You did.
6 CHAIRMAN WHITE: You were drooling out of your
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i 7 mouth in the presence of the Governor. It did not get
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8 on him.
9 COMMISSIONER BERGER: The photographs I have seen
10 look like all the other photographs taken that day by s
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11 New Hanover County.
12 CHAIRMAN WHITE: In any event, we afforded Mr.
13 Berger an opportunity to speak and be heard in April .
14 We served him with these documents and exhibits twenty-
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15 eight days ago. He claims he had two days to prepare .
6
16 He has had two and a half years to prepare . He has had
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17 a few months to conform his behavior and the decision
18 point for me in the absence of hearing what I wanted to
0
19 hear today about him doing what so many other people do
20 which is seek help and surround themselves with friends
21 -- it reached a critical point for some reason in
22 February and March and April . We are not sure why. I
23 do not know why but it did so there is a motion on the
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IMO: Brian Berger
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Page 160
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1 floor. It has been properly seconded and I will restate
2 it and it is not something that -- that any of us do
3 lightly. Like Vice-Chairman Dawson, I have never had a
4 cross word with Mr. Berger. I have never had a
5 disagreement with him. I met with him on November 29th
4
6 in his office, in his office with the Vice-Chairman, at
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7 the time Commissioner-Elect Dawson. I have text
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8 messaged him.
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9 I offered to help him for free myself . I -- I do
10 this for a living. I try to help my clients and it is
11 not always successful but many times it is and so the
12 suggestion that we are doing this to put somebody in his
13 place instead of doing what we feel is necessary is
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14 absurd. He votes our way on everything. Why in the
15 world would we want to replace somebody that is - - votes
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16 our way on everything.
17 COMMISSIONER BERGER: Because I voted for Derrick
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18 Hickey and that is when this started.
19 CHAIRMAN WHITE: There is a motion to remove Mr.
20 Brian Berger from office . It has been seconded. All 5
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21 those in favor, please indicate by saying aye . Aye .
COMMISSIONER WOLFE • Aye .
22 CO �
23 VICE-CHAIRMAN DAWSON: Aye .
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IMO: Brian Berger
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Page 161 €
1 CHAIRMAN WHITE : All those opposed.
3
2 COMMISSIONER BARFIELD: Nay.
3 COMMISSIONER BERGER: No.
4 CHAIRMAN WHITE: It passes 3 to 2 . Therefore, 1
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5 effective immediately, Mr. Berger is removed from being
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6 a member of the New Hanover County Commission. Having
7 no further business to come before this Commission, this
8 special meeting is adjourned. County staff is directed
9 to prepare Findings of Fact and Conclusions of Law
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10 expeditiously so that we can sign it and serve it on Mr.
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11 Berger.
12 (Whereupon, the proceedings
13 were concluded at 3 : 56 P.M. )
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Page 162
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1 STATE OF NORTH CAROLINA )
2 COUNTY OF NEW HANOVER ) }
} 3 CERTIFICATION
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4 I , PETER BROWNE RUFFIN, III , Notary Public, Court
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5 Reporter and President of AURELIA RUFFIN & ASSOCIATES,
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6 INC. , do hereby certify that the foregoing transcript
7 constitutes a true and correct record of the proceedings
8 held before the New Hanover County Board of
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:j 9 Commissioners, the same having been taken down by me on
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10 the date and at the place set forth in the record and s
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11 before those persons named therein, and that said
12 proceedings were transcribed by MARY HEIDEN;
13 FURTHER, that prior to the taking of their
14 testimony, all witnesses were duly sworn by Deputy Clerk
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15 to the Board Teresa Elmore;
16 FURTHER, that we are not related to any of Counsel ;
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17 we are not employed by any of Counsel or parties to this
18 proceeding, save and except for the explicit purpose of
19 taking down the proceedings herein and transcribing
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20 same; and that we, in no way, are interested in the
21 outcome of said proceeding;
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22 FURTHER, that the original of this transcript will
23 be bound and will be forwarded to MS . SHEILA L. SCHULT,
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IMO: Brian Berger
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Page 163
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1 Clerk to the New Hanover County Board of Commissioners,
2 at 230 Government Center Drive, Suite 175 , Wilmington,
3 North Carolina 28403 .
4 This the 29th day of May, 2013 .
5
6
7
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9 Notary Public, #19971470080
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IMO: Brian Berger
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Page 164
A accomplish (1) adequately (1) afforded (6)8:14 allowed (16) 18:20
abate (3)67:6,10
133:8 108:11 12:2 18:17 92:20 49:9 83:20 86:5,6
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157:21 account(5)78:19 adjourned (1) 94:16 159:12 98:23 99:10 100:5
abbreviated (1) 108:20 109:18 161:8 afternoon (2)67:14 100:11,12 102:5
3 104:22 113:21 121:20 adjudged (3) 69:6 103:18,19 106:14
3 abide (3) 13:9 accuracy (1)98:8 104:22 105:1,4 agency (1)46:7 106:14 110:2
131:15 134:12 accurate (3)96:3,9 administered (1) agenda (9)32:12 allowing (5)78:8,9
ability (17) 15:12 99:5 58:18 34:11,14 52:6,10 98:17 99:2 151:16
47:13 80:18 81:10 accurately (3)6:3 administrative (1) 85:8 119:5 136:14 almighty (1)
81:21 83:1 85:3 52:6 98:10 61:15 137:3 104:17
85:12 86:12,12 accusation (2)82:9 administrator (1) agendas (1) 125:20 amended (1) 129:3
107:18 108:6 85:16 67:22 aggressive (2)74:9 amendment(2)
116:6 139:9 accusations (5) admissibility (14) 143:7 87:13 127:17
150:20 151:23 82:10 85:16 10:2,3,5,16 12:3,9 ago (14)9:4 16:2 america (4)22:20
153:14 116:18 137:18 12:23 82:16 95:8 79:12 115:1 23:2,2191:23
able (10)20:2 35:3 143:4 95:16 98:8 99:4 119:14 127:10 american (1)87:14 i
51:18 61:10 91:2 accusatory (1) 99:23 100:6 140:10 143:23 amotion (30) 1:10
` 98:16 132:9 87:10 admissible (1) 146:16 147:9 5:13 6:7,9 8:18,19
137:23 139:3 accuse (5)7:1 10:12 149:2,4 154:4 9:8,21 12:14
148:21 100:7,7 114:18 admission (6) 159:15 15:10 78:18 79:7
aboard (1) 134:19 118:14 12:19,22 19:17 agreeable (1)76:16 80:7,22 82:12,20
absence (4)87:21 accused (6)81:13 41:12 96:13 107:4 agreement(3) 83:3 87:16 103:8
117:18 125:21 81:16 105:18 admit(1) 144:7 152:19 153:18,19 103:13,13 105:21
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159:18 107:13,16,17 admitted (6)9:13 ahead (6)23:16 106:4 110:1,14
absent(7)26:2 accusing (2)55:23 70:6 96:5 102:1 41:10 53:21 82:15 115:11 116:1
28:1129:14 36:12 117:3 117:7,10 125:6 128:3 119:11 130:12,21
40:17 50:12,12 acquitted (1)79:14 admitting (1)20:4 air (1) 100:20 ample (1)95:2
absolute (2) 15:23 act(4) 13:21 132:1 adopted (19)6:9 alarms (1)85:17 analogous (2)
152:6 133:2 134:17 30:15 41:18,20,23 aldermen (1) 79:22 104:5
f absolutely (6) acting (3)66:13 42:3,4,6 80:9 103:17 analysis (1) 156:3
71:1177:12 125:19 133:9 88:18 89:1,1,4,10 allay (4) 121:11 andre (1)28:10
118:17 132:22,23 action (7)45:15 104:11 109:2 122:22 123:3 anglin (138)2:15
143:8 113:15 121:7 128:9,11 131:13 135:18 2:16 5:18 7:14
absurd (1) 160:14 134:6,7 135:9,18 adopting (1) allegations (8) 8:3,7,9,13 9:3,22
abuse (1) 157:4 actions (4)7:4,8 108:19 18:19 33:23 48:5 10:1,9,21 11:5,18
abusing (1) 125:20 11:21 114:6 advance (1) 107:1 48:6 53:18,22,23 12:5,7 13:4,5 19:7
accept(2)93:11512 activities (1)45:22 adverse (2)68:14 88:7 19:9 20:22 21:3
accepted (11)3:9 acts (1)75:4 68:19 alleged (4)6:15 21:20 39:14,19,20
' 17:17 19:3 20:11 actual (1)49:1 advice (1) 154:4 75:22 105:10 40:2141:1,5,8,11
39:17,18 40:20 additional (1)9:4 advisement (1) 147:3 41:13 42:12,23
93:20 95:9 98:14 address (5)7:21 95:20 allegedly (4)22:6 43:2 49:12,14,22
98:15 10:18 53:23 122:6 affect(1)85:3 79:13 88:3 104:10 51:4 52:3,8,14,23
access (4)85:17 146:17 affidavit(4)68:16 alleges (5)6:18,21 53:6 54:17,19,22
86:5,6,10 addressed (3) 92:10 96:8 97:18 6:23 7:4,7 55:3,6 58:12,15
accompanying (4) 43:20 112:10 affidavits (8)8:23 allow (9) 15:16 59:3 63:23 64:3,9
6:14 7:11 17:3 152:22 9:5,6,12 83:7 88:4 79:4 93:12,14,15 64:12,19 65:7,10
83:7 addressing (1) 90:6 138:5 99:3 108:15 65:14,19 66:1,9
124:6 afford (1)77:14 121:19 155:4 66:12,23 67:13,16
IMO: Brian Berger
Page 165
68:5,7 69:11,18 appears (3)68:16 19:3 33:17,18 asking (9) 11:13 51:17,22 114:7,10
70:1,2,6,9 71:2,5 113:3 114:12 34:10,19 35:17 25:10,1137:19 119:5
71:9,20,23 73:10 applicable (1) 36:21,23 147:6 67:1869:1474:10 attending (1) 151:9
74:11,2175:6,7 11:20 159:13,22 115:22 128:16 attention (6) 19:6 E
76:10,13,17,23 applicant(2)68:18 arbitrary (1)93:14 asks (1) 108:9 22:2 23:22 35:16
77:2,5,8,11,14,23 68:20 area (3)61:3,10 assassinate (2) 35:17 36:19
78:2 94:6,8,12,20 application (1) 145:19 146:22 147:3 attest (2) 137:18
95:6,15,23 96:12 96:19 argue (8) 12:3 81:6 assault(6)73:1 138:6
96:2197:1,4,13 applied (5)89:5 83:12,13,13 86:1 79:15 81:2,5,19 attesting (1) 137:19
97:20 98:9,12,19 104:12 106:9,10 93:2 156:11 107:17 attorney (61)2:10
98:2199:2,9,14 128:13 argued (1) 129:14 assaulted (2)48:14 2:12 3:12 5:18,19
99:21 100:3 applies (1) 147:21 arguing (1)88:23 72:18 5:20 6:6 7:13
101:11 110:8 apply (7) 12:1,12 argument(11)77:9 assaulting (1) 13:1 14:6 18:12
111:2 114:14 17:21 18:2,7,8 77:15 78:1 88:15 81:14 18:23 19:22 20:18
116:5 117:6,16 100:11 94:15 99:13 assembly (2)5:3 21:23 25:7 27:2
120:5,14 121:21 appoint(2)40:4 100:14 110:10 106:8 28:8 31:2132:18
122:1,5 123:23 46:17 122:4 124:6 assert(1) 143:4 43:6 45:4 62:14
124:5 126:4,22 appointed (1) 136:23 assertion (1) 65:12 67:2168:15
127:4,11,13 46:17 arguments (3) 143:17 68:19,20 78:17
answer (8) 11:19 appointment(1) 66:16 122:2,2 assigned (1)71:18 81:8 83:8 84:1,5
17:1147:10 50:5 151:5 arkinson (1)9:1 assistant(6)2:9,12 85:22,22,23 87:17
71:3 75:13 147:12 appointments (1) arrest(1) 115:20 5:19 7:13 28:10 88:10 89:7 93:19
149:16 145:17 arrival (2)28:20 61:15 103:15 107:7
answered (2) 17:22 appraisals (1) 50:10 associates (3) 1:14 109:6 110:13,20
127:9 13:18 arrivals (1)30:12 5:8 162:5 112:7 113:13,20
anybody (12)20:23 appreciate (1) arrive (2)23:12 association (2) 116:21 117:1
' 42:8 99:16 127:7 131:4 26:2 150:18 151:10 119:16 120:22
142:9,10,16 143:2 apprehensible (1) arrived (1)26:3 assume (4)8:18 122:14 123:2,7,8
143:8,16 144:19 143:17 arriving (1)28:22 77:13 156:1,1 123:11 131:2
145:1 approach (1)27:1 article (12) 19:20 assumptions (1) 132:16 145:16,23
anymore (5)40:14 approaching (1) 19:2178:16,20,22 90:10 attorneys (1)66:14
95:4 105:22 115:9 117:8 79:7,10 80:19,22 assurance (1) attributed (2)
121:18 appropriate (14) 93:23 94:1 105:23 157:21 96:23 99:18
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anytime (2)46:22 7:18 15:4 18:7 articles (4) 19:19 assures (1)44:12 audience (2)5:21
74:2 60:21 110:23 82:8 87:5 103:12 att (1) 1:18 157:16
anyway (4)48:12 111:17,23 133:22 aside (1) 136:22 attached (6)9:12 august(5)37:2
74:4 119:12 143:2 134:5 146:14,16 asked (33)8:3 54:1,6 86:22 38:6 74:19 89:16
apologize (4)30:20 146:19 147:5,6 10:14 17:22 39:8 110:16 114:16 155:22
33:2 34:8 155:15 appropriately (3) 40:1149:22 50:4 attempt(2)53:23 aurelia (3) 1:14 5:7
apparently(2) 111:12,18 112:2 51:4,13 52:14 146:22 162:5
109:3 128:20 appropriateness ... 53:6 61:16,16 attempted (2) authen (1)92:6
appeal (3) 19:12,13 111:2 62:7,15 64:17 115:17 119:23 authenticated (2)
102:12 approved (1)30:19 65:5 66:2,10 67:3 attend (3)66:3 111:22 112:2
} appealed (1) 106:3 approximately (8) 69:2170:12 75:8 120:10 136:19 authentication (3)
appeals (1) 19:15 84:12,13 89:19 84:13 116:5 118:5 attendance (17) 97:8,1199:22
appearances (2) 90:5 91:8,17,18 136:20,21 146:15 13:10 25:21,22 authenticity (4)
2:13:3 128:11 149:19 151:10,18 26:18 39:7,22,23 24:20 92:6 95:12
appeared (1) 114:5 april (13)6:5,8 154:5 40:7,9,16 50:1,13 98:6
IMO: Brian Berger
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authentification ... bank(4)22:20 23:2 100:20 103:16 106:23 107:5,9,22 62:9 98:12 111:1
96:15 23:2191:23 125:7 131:14 108:2 109:6,9,15 bite (3)43:14 150:6
author(4)95:13 bar(2)35:165:16 139:10 150:5 109:19 110:2,19 150:7
k 97:3,12 147:9 barfield (27)2:4 benefit (2) 16:7 111:15 112:21 black (1)58:4
authority (7)46:21 13:12,14,15 14:1 137:6 1 14:6,22 115:13 blanket(3)83:1,1 t
105:20 132:22,23 15:5 16:16,21 bent(1) 152:8 115:17,22 116:2 83:14
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133:2,10 152:7 17:9,2128:4,6 ber (1) 102:4 116:11,22 117:7 blaylock (1)75:4 I
authorship (2)96:5 31:19 32:16 34:23 berg (1)35:5 117:15,16,22 blessing (1) 155:2
98:3 42:20 100:15,17 berger (239) 1:6 118:2,8,11,21 blue (1)31:9
autism(7)73:5,12 100:18 106:21 2:6,15 3:12 5:13 119:1,12,14,17 board (108) 1:2 2:2
73:16 119:7 139:13 149:13,14 5:17 6:7,10,16,18 120:8,12 121:2,9 2:8 5:2,20 6:5,7
138:14 156:2 149:15 155:9 7:8 11:10,21 122:8,12,16,23 6:17 7:15 8:17
157:2 156:17161:2 12:2214:617:11 123:2,8126:6 9:3,1011:8,9,11
availability (1) barrett (1)2:17 17:13 18:10,16 127:22 129:10,20 12:14 17:15 19:1
65:17 based (6) 111:12 19:2,6 20:1,6,15 131:14 136:13,23 19:4,6 26:1,8,10
available(5)29:15 113:4,6 120:19 20:22 21:3 22:5 137:15,20 138:10 26:15 28:9 30:7
;
30:9 59:6 61:13 129:18 147:19 23:23 24:12 25:3 139:13,15,16,17 31:2132:18 39:13
80:23 baseless (1)6:21 25:6,12 27:4 28:7 140:5,12,15 40:1,4,5,15 43:5
availed (1)2 1:1 basic (3)97:11 28:13,17 31:14,20 144:16,18 145:10 44:10 45:15 48:2
awards (1)85:8 112:17 113:7 32:4,13,17 34:1 145:13,15 147:13 48:2,9 50:4 53:12
aware (12)60:1,5 basically (4)43:17 34:1135:1,6 147:16 149:1,3,6 53:12,19 64:5
64:15 65:3 73:3,4 62:6 98:23 155:22 36:2139:8,8,15 149:9,17,19 150:1 67:4 69:7 78:17
73:1174:18 87:21 basing (2) 19:21,22 40:16 41:23 42:14 151:16 152:20 87:20 90:23 93:8
108:17 125:21 basis (5) 10:7,9 43:12 44:6 46:11 153:19 155:20 93:10,11 106:20
140:8 59:12,16 80:23 47:2,7 48:4 49:12 156:20 157:11,23 108:18 109:2
awareness (2)7:8 beg (1) 155:22 50:9 51:19 52:2 158:1,5,13,17,22 110:18,19 112:12
114:6 began (1) 112:18 52:20 53:18 54:2 159:3,5,9,13 112:22,23,23
aye (8) 17:5,6,7,8 beginning (5)5:3 54:11,12 55:14,20 160:4,17,20 161:3 113:2,9,11,14
? 160:21,21,22,23 25:1 85:6 89:23 56:3,20 57:9,12 161:5,11 119:15 121:6
ayes (1) 17:10 100:19 57:17,22 58:15 best (6) 101:17 124:1 129:8,11,15
begins (2)37:21,23 59:9,22 60:10 137:11 139:9 130:17 132:1,14
B behalf(3) 136:17 66:5 72:2 73:4,12 144:7 153:5 132:18 133:1,1,2
b (3)64:22,23 151:1,3 73:22 74:5,11,19 156:14 133:7,9,12 137:8
68:13 behavior(15) 75:2 76:12,15 beth (1)2:3 138:23 140:19
back(23)33:2 42:15 72:8 87:3 77:3 79:23 80:1 better (4)42:21 141:14 144:8,13
45:19 60:9 61:17 114:19,19 116:19 83:5,6,13,22 84:3 98:22 121:14 145:18 146:8
61:17 76:22 84:14 116:19 122:23 84:13,18 85:2,10 137:23 149:12,17,18
84:15 88:2,2 89:5 133:21 134:17 85:17,20 86:8,21 big (2) 128:7 150:9,17,22 151:2
98:17 104:8 144:1 145:8 87:3,8,9 88:11,16 136:17 151:3,6 152:4,20
105:20 107:21 154:18 155:4 88:20 89:5,21 bill (9) 15:16,20 153:1,7,8,10,20
120:10 128:17 159:17 90:2,9,18,20 92:9 23:15 24:10 162:8,15 163:1
129:12 140:2,7,16 beings (2)34:5 92:20 93:9,17,17 106:15,15,16 boards (2)25:22
146:14 150:13 109:12 93:2194:4,10,19 120:4 151:15 40:5
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