Angier Mayor Investigation Report

Posted
 

Report of Williams Mullen

To

The Board of Commissioners of the Town of Angier, North Carolina

Prepared by Robert J. Higdon, Jr.

Partner

Williams Mullen Clark & Dobbins

Raleigh Office

301 Fayetteville Street

Suite 1700

Raleigh, North Carolina 27601

919-981-4000

Executive Summary

The law firm of Williams Mullen Clark & Dobbins P.C. (“Williams Mullen” or the “Firm”) was engaged to gather and review evidence concerning issues addressed in the January 3, 2017 Censure Resolution adopted by the Angier Board of Commissioners (the “Board”) against Mayor Lewis Weatherspoon. That investigation has now been completed and the firm, as counsel to the Board, has concluded the following: 1. Mayor Weatherspoon incorrectly reported the vote tally on December 6, 2016 during a Board vote to fill a vacant seat on the Town’s Planning Board and he improperly accused a fellow Commissioner of altering the physical ballots subsequent to the vote; there is insufficient evidence to conclude that the Mayor’s actions were an intentional effort to obstruct the majority decision of the Board to appoint a particular candidate to the Planning Board; 2. Mayor Weatherspoon has regularly and repeatedly interfered in the day-to-day operations of the Town of Angier and has both exceeded his own statutory rights and responsibilities and has invaded the statutory rights and responsibilities of the Town Manager to oversee those daily operations; the Mayor’s actions have impeded the proper functioning of Town offices and has placed the Mayor and the Town in compromising positions relative to Departmental oversight and in the honest and transparent conduct of Town business; 3. Mayor Weatherspoon has complied with the Censure Resolution and has vacated his Town Hall office, has surrendered any papers and records he maintained privately in that office, and has refrained from continued interference in the daily operations of the Town following imposition of the Censure; 4. At present there are no “further improper acts” by the Mayor which require a decision by the Board to seek to remove the Mayor from office. The Firm has provided the Board with a complete factual and legal analysis of these issues in the form of this report and further recommends that the Board not proceed with a petition to remove the Mayor from office at this time, and on these facts.

Scope of Engagement

Williams Mullen Clark & Dobbins P.C. (“Williams Mullen” or the “Firm”) has enjoyed a strong relationship with the Town of Angier (the “Town”) as outside counsel in a wide range of matters. This relationship has provided, we believe, an important addition to the services provided by the Town Attorney. Frequently law firms are retained and engaged by municipal corporations and governing bodies in order to deepen the level of expertise and to augment the resources available to the corporation or body through the Town Attorney. On March 7, 2017 the Board of Commissioners of the Town of Angier (the “Board”) engaged Williams Mullen to act as outside counsel with respect to facts and circumstances generally outlined in the Board’s January 3, 2017 censure of Mayor Lewis W. Weatherspoon, as well as events following the censure. See, Exhibit A, Engagement Letter. Specifically, the Firm was enaged to: provide[] an independent, neutral, outside investigation into: (1) the specific facts and circumstances that were previously generally outlined in the ‘Resolution Censuring Mayor Lewis W. Weatherspoon,’ (the ‘Resolution’) unanimously adopted by the Town Board of Commissioners (the ‘Board’) on January 3, 2017; and (2) the specific facts, circumstances and conduct of relevant personnel since the adoption of the Resolution (collectively, the ‘investigation’). Exhibit A at 1. The engagement letter between the Board and Williams Mullen further defined the scope of the investigation as limited to: a. Interviewing fact witnesses identified by the Town, including current and former Town employees; b. Collecting evidence from witnesses with relevant knowledge; c. Preparing summaries of witness interviews and evidenced obtained through the Investigation; d. Presenting the factual findings and information obtained during the investigation to the Board in the form of a written or oral report, or a combination of both, for the Board to consider as its deems fit; and e. Providing such other allied and related services as may be necessary to competently and objectively conduct the investigation. Id. The attorney designated as the primary individual to lead the inquiry is Robert J. Higdon, Jr., a partner in and co-chairman of Williams Mullen’s Investigations Group. Mr. Higdon served for nearly 24 years as a federal prosecutor in the Western and Eastern Districts of North Carolina as well as in other federal districts around the United States. Mr. Higdon has substantial experience in questioning witnesses and in conducting investigations in order to completely and objectively present evidence to tribunals, courts and governing bodies. Importantly, prior to engagement of the Firm in this matter, Mr. Higdon did not know any member of the Angier Board of Commissioners, did not know Mayor Weatherspoon, did not know the Town Manager and had never met any of the Town’s employees. Moreover, Mr. Higdon was not familiar with the issues which have arisen in Angier relative to Town governance or which were committed to Williams Mullen for investigation under this engagement. Finally, Mr. Higdon is not a resident of the Town of Angier.

Methodology

The Engagement Letter between the Town and Williams Mullen clearly contemplates that the Town is the Firm’s client1 and that the scope of the engagement may only be expanded if “specifically authorized by the Board.” Id. at page 1, paragraph 4. Thus, the Firm’s investigation has been conducted on behalf of the Town and the Board of Commissioners.2 Consistent with the terms of the written Engagement Letter, the Firm focused its investigation on the issues outlined in the January 3 Censure Resolution. These issues include: 1) the facts and circumstances surrounding the Board’s December 6, 2016 vote to fill a vacant seat on the Town’s Planning Board; 2) information and evidence concerning allegations that the Mayor has interfered with and disregarded the Town’s council-manager form of Government in the ways enumerated in the Censure Resolution; 3) whether the Mayor has complied with the limitations and directives concerning his conduct as set forth in the Censure Resolution; and 4) whether any “further improper acts” by the Mayor would support a decision by the Board to remove the Mayor from office. In order to conduct it’s investigation the Firm relied on the Town – generally through the Town Manager – to identify and produce witnesses who were believed to have information relevant to these issues as required by the terms of the Engagement Letter.3 Each witness was interviewed separately at the Town Hall or in the Raleigh offices of Williams Mullen by the undersigned. Each interview was memorialized in notes prepared by the undersigned and each witness was given warnings commonly referred to as Upjohn warnings.4 The Firm also interviewed a small number of comparative witnesses – those who can provide credible, relevant insight into the manner in which a council-manager form of government should function. These subject matter experts were utilized to provide a measuring stick against which the conduct of the Mayor and other city officials might be evaluated. These experts were also consulted as to possible solutions for the problems identified. It is important to note that individual members of the Board of were not interviewed as part of this investigation. Their conduct is not a matter falling within the scope of the engagement. It also did not appear to the undersigned that any commissioner possessed personal knowledge of any of these matters and which was not available to the undersigned from some other source, with the exception of the facts and circumstances surrounding the vote to seat a new member of the Town Planning Board. In that instance, it is clear that each member of the Board could theoretically speak to the question of who they voted for and that Commissioner Honeycutt could respond to allegations that he altered the ballots. Those issues, however, are addressed sufficiently by looking at the original ballots themselves and by listening to the recording of the December 8, 2016 meeting between the Mayor, the Town Manager, Commissioner Honeycutt and the leadership of certain Town Departments. Finally, and most importantly, should the Board of Commissioners attempt to remove the Mayor via the Amotion process, they themselves are the trier of fact in that process. Therefore, as a legal and practical matter Board members cannot and/or should not also act as fact witnesses in any such Amotion proceeding. Mayor Weatherspoon asked for and was afforded the opportunity to speak with the undersigned during the course of this investigation. By letter dated March 9, 2017 the Mayor, through his attorney, asked to meet with the undersigned “early” in the process. See Exhibit B. Undersigned counsel, however, chose to formally interview the Mayor after all other witnesses had been interviewed in order to allow a more fulsome discussion of issues with the Mayor at the appropriate time. That decision was communicated to the Mayor’s counsel on March 9 as well. See Exhibit C. Ultimately the Mayor and his attorney met with the undersigned attorney on April 24, 2017. The Mayor responded to all questions put to him by the undersigned and he was given the opportunity to make any statement he wished to make concerning any of the issues entrusted to Williams Mullen through the engagement letter.

Angier’s Council-Manager Form of Government

  1. Present Members of Angier’s Governmental Structure
Mayor Lewis Weatherspoon is a long-time resident of the Town. He first entered local elected public service in 2013 when he ran for and was elected to a four-year term on the Board of Commissioners. In 2015, he challenged incumbent Mayor R. H. Ellington who was then seeking reelection. Then Commissioner Weatherspoon defeated Mayor Ellington in a very close election. Mr. Weatherspoon is currently serving a four-year term as Mayor. That term expires in 2019. Mr. Coley Price presently functions as the Town Manager for the Town pursuant to an employment agreement entered into by the Town and Mr. Price on or about September 5, 2005. See Exhibit D. That agreement authorizes Mr. Price to “perform the functions and duties of the Town Manager as specified in the North Carolina General Statutes. Exhibit D. at page 1. Prior to his appointment as Town Manager, Mr. Price served, inter alia, as Assistant Town Administrator (1996-2003) and Town Administrator (2003-2005). The Town is also served by a four-member Board of Commissioners. Presently those members include: Robert K. Smith, Mayor Pro Tem, Alvis McKoy, Craig Honeycutt and Jerry Hockaday. The terms for Commissioners McKoy and Hockaday expire in December of 2017. The terms for Commissioners Smith and Honeycutt expire in December of 2019.
  1. The Statutory and Charter Basis For Angier’s Council-Manager Form of Government
North Carolina municipalities operate under charters granted by the General Assembly and have powers and authorities given to them by the State Constitution and state statute. An elected board – city or town council, board of commissioners or a board of aldermen – is the governing body of each municipality in North Carolina. The number of members of each board, the method of election and the designation of at-large or district representation is determined by the respective municipal charter granted to each municipality. That charter also sets forth the form of government in the municipality and it may take one of two forms. First, a municipality may be organized as a mayor-council form of government, with or without a designated administrator. Here, the mayor and the council, acting together, make decisions about municipal services, resources and expenditures and all municipal employees and personnel report to the board in some manner. The other major form of municipal government authorized in North Carolina is the council-manager form. Here, the mayor and council set general policy and direction for the municipality and they employ a manager to implement their policy choices. The manager has specific statutory authority under the North Carolina General Statutes, including the hiring and firing of most employees. Article IV, Section 4.1 of the Town Charter (“Charter”) provides that the Town shall operate as a council-manager form of government as provided in Part 2 of Article 7 of Chapter 160A of the North Carolina General Statutes. Section 160A-66 provides that all North Carolina municipalities, regardless of how organized, shall be governed by a mayor and a council of at least three members. Generally, the governing and general management of the municipality is vested in the council with the Mayor serving as the official head of the municipality for purposes of service of process and for all ceremonial activities. N.C.G.S. §160A-67. The Mayor is also authorized to preside over all council meetings and to vote only when necessary to break a tie among the other council members. See, N.C.G.S. § 160A-69. For municipalities, like the Town, which have chosen to operate under a council-manager structure, the duties and authority of the manager are set forth in N.C.G.S. §160A-148: (1) He shall appoint and suspend or remove all city officers and employees not elected by the people, and whose appointment or removal is not otherwise provided for by law, except the city attorney, in accordance with such general personnel rules, regulations, policies, or ordinances as the council may adopt. (2) He shall direct and supervise the administration of all departments, offices, and agencies of the city, subject to the general direction and control of the council, except as otherwise provided by law. (3) He shall attend all meetings of the council and recommend any measures that he deems expedient. (4) He shall see that all laws of the State, the city charter, and the ordinances, resolutions, and regulations of the council are faithfully executed within the city. (5) He shall prepare and submit the annual budget and capital program to the council. (6) He shall annually submit to the council and make available to the public a complete report on the finances and administrative activities of the city as of the end of the fiscal year. (7) He shall make any other reports that the council may require concerning the operations of city departments, offices, and agencies subject to his direction and control. (8) He shall perform any other duties that may be required or authorized by the council. Through its ordinances, the Town has imported these duties and authorities into the governing structure of the Town without any alterations. See, Ordinances of the Town of Angier at § 2-101.

Background and Timeline

As noted above, Mayor Weatherspoon commenced elected public service in 2013 when he ran for and was elected to a four-year term on the Town’s Board of Commissioners. In 2015, he challenged the incumbent Mayor and was elected to a four-year term in that office. Throughout 2016, tensions between the Mayor, the Board of Commissioners, the Town Manager and the permanent employees of the Town grew and began to affect the delivery of Town services. Those tensions culminated in the adoption of a Resolution of Censure against the Mayor on January 3, 2017 by the Board of Commissioners. The Censure Resolution, a copy of which is attached hereto as Exhibit E, first recites several basic principles governing and defining the roles of the Town Board, the Mayor and the Town Manager. Exhibit E at page 1. Most importantly, the resolution reaffirms the Board’s commitment to the council-manager form of government as authorized in the Town’s Charter. Id. To that end, the resolution acknowledges that the Town Manager is responsible for administering all Town affairs, including the direction of all departments, offices and agencies of the Town, subject to the general direction and control of the Board. Id. The resolution then recites the ways in which the Board found the Mayor to have violated the principles of council-manager government and lists concerns about the manner in which the Mayor has executed specific duties associated with his position. The resolution criticized the Mayor for: - calling for a secret ballot for the election to fill a vacant seat on the Town’s Planning Board and “substitut the vote a tie” - interfering with the council-manager form of government by: - maintaining a private office at Town Hall; - maintaining public records in Town Hall under lock and key without providing access to same to the Town Clerk; - interrupting and interjecting himself into personnel and administrative meetings; - directing citizens to bring routine matters normally directed to Town administration directly to him; - unnecessarily and improperly involving himself in the day-to-day routine business at Town Hall which has impeded the efficient administration of Town business and created an environment of uncertainty and instability for Town Staff; - directly questioned employees regarding job performance and attendance, bypassing the Town Manager, and with disregard for Town personnel procedures. Id. at 1-2. The resolution then censured the Mayor “in the strongest terms” and directed that he must observe all statutory requirements for the conduct of meetings, shall maintain the integrity of Board votes and shall respect the clear direction of the Board. Id. at 2. The Mayor was further directed to vacate his office in the Town Hall and to surrender all public records in his position to the Town Clerk. Id. Finally, the Mayor was directed to observe and abide by the council-manager form of government and to avoid any interference in the daily administration of Town business. Id. And, finally, the Board reserved the right to seek the Mayor’s removal from office if it found there to be any “further improper action.” Id. at 3. The Mayor acknowledged and signed the Censure Resolution. The Board engaged Williams Mullen on or about March 7, 2017, as a followup to the Censure Resolution, for the purposes outlined above.

Factual Findings

  1. The Vote to Fill the Vacant Planning Board Seat
Chapter 12 of the Ordinances of the Town of Angier provides for a Planning Board to “promot the health, safety, morals and the general welfare of the community . . . “ through the powers and duties set forth in § 12-69 of those ordinances. In late 2016, one of the four seats on the Planning Board fillable by appointment from the Board of Commissioners came before the Board for consideration.5 The matter was taken up by the Board during its December 6, 2016 meeting.6 According to the minutes from that meeting: When the nominations were opened, Commissioner McKoy nominated incumbent Paul Strohmeyer. Commissioner Hockaday made a motion for the nominations to be closed; however, Commissioner Honeycutt interjected, asking to nominate challenger Junior Price. When the nominations closed, Mayor Weatherspoon stated the vote conducted would be by secret ballot. Mayor Weatherspoon collected and counted the ballots, informing the Board and the public that the election results were tied with each candidate receiving two votes. He said that, as Mayor, it was his duty to break the tie to which he informed the Town Clerk to contact Junior Price with the news that he had been elected to the Angier Planning Board. Minutes of Board of Commissioner Meeting, December 6, 2016, attached hereto as Exhibit F, at 7(C). Following the Board meeting, questions were raised by members of the Board, the Town Manager, Town employees and members of the public concerning the balloting process. The questions centered around whether it was proper for the Board to conduct the election by secret ballot and whether the votes had been tabulated correctly. Some members of the Board discussed the issue amongst themselves; many questions were put to the Town Manager. When the Board meeting concluded, according to all the witnesses interviewed, the actual ballots – unsigned pieces of paper which had been torn from a larger sheet of paper by the Town Clerk when the Mayor directed her to prepare ballots – were left on the Board dias.7 Commissioner Honeycutt, who had originally nominated Junior Price, collected those ballots and took them from the Board’s meeting room. According to both the Town Manager and the Mayor, there was some extended effort by the Mayor to locate and retrieve the ballots from Mr. Honeycutt as questions were raised about the method of voting and the tabulation of the votes. Later that evening, after several phone calls between them, the Mayor met with Commissioner Honeycutt and obtained the four ballots. The Town Manager contacted the Mayor on Wednesday, December 7, 2016 in an effort to arrange a meeting to discuss the voting process and to determine whether the Mayor had properly counted the votes. The Town Manager asked the Mayor to meet with him that day. However, the Mayor declined and explained that he was not feeling well. The Mayor and the Town Manager eventually met at Town Hall on Thursday morning, December 8, 2016. They were joined by several members of the Town staff members of the Town staff confronted Mayor Weatherspoon about the vote to seat Junior Price on the Planning Commission specifically and as part of what they deemed to be a pattern of inappropriate and dishonest conduct. They asked for an explanation as to why he had ordered a secret ballot and why he had incorrectly reported the vote as a 2-2 tie between Mr. Strohmeyer and Mr. Price. The Mayor indicated that prior to conducting the vote he had asked the Town Attorney8 if the vote could be conducted by secret written ballot. According to the Mayor, the Town Attorney told him that the vote could in fact be conducted in that way. Thus, the Mayor ordered the use of secret ballots and directed the Town Clerk to prepare the ballots in that manner. Whether the Mayor sought advice from the Town Attorney on this point is not reflected in the official minutes of the meeting. See, Exhibit F. However, no witness interviewed by the undersigned disputed the fact that the Mayor sought the advice of the Town Attorney prior to the conduct of the vote. The Mayor then told the group that when he counted the secret written ballots he was unsure how Commissioner Hockaday had voted and he consulted with him. He advised that Commissioner Hockaday told him he had voted for Mr. Strohmeyer. The Mayor then reported a 2-2 tie which he said he believed to be the case at the time. He then effectively broke the tie – as would be his right as Mayor – by directing the Town Clerk to notify Junior Price that he had been elected to the Planning Board. The Mayor, at the conclusion of the December 6, 2016 Board meeting, left the ballots on the dias as he departed the meeting room. In the December 8, 2016 meeting the Mayor further explained that about 10 minutes after he arrived home from the December 6 Board meeting, he received a call from Commissioner Honeycutt who told him that he (Honeycutt) had not voted for Junior Price and he asked how, therefore, the vote had been a 2-2 tie. Following the phone conversation, the Mayor then returned to the Board meeting room to retrieve the ballots. They were not on the dias. Later that evening, according to the recording of the December 8 meeting, the Mayor met up with Commissioner Honeycutt and obtained the physical ballots used earlier that evening. The Mayor produced the physical ballots to the Town Manager during the December 8 meeting. The Town Manger, in turn, produced the physical ballots to the undersigned when Williams Mullen was retained in this matter. They are attached hereto as Exhibit G. When presenting the ballots to the Town Manager during the December 8 meeting, Mayor Weatherspoon explained: “One of these two ballots was not there when I counted the ballots.” The Town Manager countered: “You are telling me it was 2-2 when you counted? Verbatim?” The Mayor: Yes, sir.” The Town Manager: When you got these ballots at 9:30 it was 3-1? The Mayor: Yes.” members of the staff questioned the Mayor aggressively following the above statements and directly accused him of a pattern of dishonesty, including issues surrounding the Planning Board vote. In response, the Mayor suggested that Commissioner Honeycutt had altered the ballots following the vote count and before he (the Mayor) had retrieved the ballots from Honeycutt later that evening. As the Mayor was pressed over and over again on this issue, he eventually stated that he may “have made a mistake” but offered no explanation as to how such a mistake might have occurred. Approximately 24 minutes into the December 8 meeting, Commissioner Honeycutt joined the group. He identified his own ballot from the Decmeber 6 vote and pointed to a clear marking in favor of Mr. Strohmeyer. He told the Town Manager that he (Honeycutt) collected the ballots from the dias following the December 6 meeting because he knew “they weren’t right.” The discussion continued for a considerable period of time during which the Mayor eventually said: “I screwed up.” When the undersigned counsel interviewed Mayor Weatherspoon on April 24, 2017, he (Weatherspoon) explained the process which he followed during the December 6 Board meeting. He then advised that he relied on the Town Attorney concerning whether a secret ballot was appropriate and stated that he was not sure why he had miscounted the vote total that night. He explained that he was under a good deal of personal stress that week but ultimately did not know why he had incorrectly tabulated the votes.
  1. General Interference in the Day-to-Day Work of Town Departments and Employees
A majority of Department heads and other Town employees who were interviewed by the undersigned described a significant level of involvement/interference in the day-to-day operations of the Town by Mayor Weatherspoon throughout much of 2016. The employees reported repeated questioning by the Mayor concerning the manner in which they performed their duties, regular criticism of their job performance and efforts by the Mayor to take on leadership and managerial responsibility which is otherwise vested in the Town Manager by statute and/or by the Town Charter: -As discussed below, Public Works employees complained about the Mayor’s role in the bidding process for a sidewalk improvement project; -Employees of more than one Department reported that the Mayor repeatedly inserted himself into citizen public service complaints and would attempt to direct the work of Town employees in addressing those complaints; -Employees of more than one Department alleged that the Mayor became the “go-to guy” for disgruntled employees who were unhappy with the decisions made by Department Heads and/or the Town Manager regarding personnel, training and work assignment issues; - employees advised that the Mayor directed that he be provided a physical office in the City Hall and that he regularly spent 35-40 hours per week in the office “overseeing” the work of Town employees; -Town employees complained that the Mayor regularly attended employee staff meetings and interjected himself into these discussions; - employees of the Public Works Department advised that the Mayor would regularly take meetings with real estate developers and discuss substantive and project-specific issues; some of these meetings were taken with the Town Manager present; other meetings were conducted without the Town Manager present; -Public Works employees reported that the Mayor would involve himself in specific water and sewer and signage issues; -Officers of the Angier Police Department advised that the Mayor would make daily “walk throughs” of the Police Department and inquire of individual sworn officers with regard to what type of work they were doing and question them generally about their case work; -Police officers also complained that the Mayor sought to set enforcement priorities related to parking in the downtown business district; - - 9 These complaints have also been raised by the Town Manager and Town employees in recent meetings with the Mayor and with the Board. During the Special Board Meeting held on January 21, 2017, the Town Manager addressed some of these issues generally. The Manager reported a dramatic increase in the stress level for Town employees in response to the Mayor’s involvement in daily Town business as well as the result of ongoing tension between the Mayor and the Manager. During the same meeting, the Town’s Finance Officer and the Chief of Police complained about the difficulties created by the Mayor’s role in daily Town affairs and by the failure of the Mayor and Town Manager to resolve these issues. Mayor Weatherspoon has responded to these allegations in several different forum. First, during the January 21 Board meeting, the Mayor admitted that he had “interfered” with the work of Town employees. Indeed, when the issue was specifically put to him by Commissioner Alvis McKoy, the Mayor agreed that he had improperly interfered with Town business and Town employees. During the undersigned’s interview with Mayor Weatherspoon on April 24, 2017, the Mayor again acknowledged that he had overstepped his role, had “interfered” in Town business and had invaded the role of Town Manager. He did, however, in this interview, argue that some of his involvement had been invited, or at least acquiesced in, by the Town Manager and/or the Board. Specifically, the Mayor suggested that the Manager, early in the Mayor’s term, had encouraged the Mayor to interact directly with employees and to take his concerns directly to the relevant Department Head or employee. Moreover, he suggested that the Town Manager had encouraged him to attend employee staff meetings and to take meetings with developers and others interested in Town growth. Likewise, he advised that he had alerted the Board to his possible involvement in development projects at an early Board meeting or retreat and that Board members had encouraged him to continue his efforts and involvement.10
  1. The Mayor’s Involvement in a Sealed Bidding Process.
During the course of the instant investigation, and as the undersigned interviewed Department heads and employees, the undersigned met with members of the Public Works Department. As noted above, these employees generally complained about the regular and repeated interference by the Mayor in the day-to-day operations of their Department. However, some of them also described a more specific and concerning event in which a project bidding process was compromised. During the summer of 2016, the Town decided to seek bids from local contactors for the installation of an iron railing along a sidewalk in downtown Angier. The planned railing was to be located generally in front of “Ed’s Family Restaurant” on East Depot Street. Several years earlier an individual fell in this location due to the relatively steep drop off from the sidewalk to the street and had sustained serious injuries. According to the Town Manager, the Town’s insurance carrier advised that the location should be marked with a yellow warning strip along the walk and with appropriate written warnings painted within the stripe. Mayor Weatherspoon told the undersigned that he felt that the warning stripe was inadequate and that he had pushed the Board of Commissioners and the Town Manager while he (Weatherspoon) was a Commissioner to improve the location by installing some type of railing or barrier as an added safety measure. Ultimately, the Public Works Department was instructed to seek bids from local contractors for the safety railing. During July, 2016 Public Works sought those bids through an informal, but confidential, process whereby each individual bidder did not know the value or details of any competing bid.11 Public Works employees, interviewed during the course of this investigation, reported that at some point in the bidding process Mayor Weatherspoon directed them to show him the bids “as they came in.”12 According to these employees, the Mayor did not explain why he needed access to the bidding information. Initially, they did not advise the Town Manager of the Mayor’s directive and began providing the Mayor with real time information concerning the bids received. The Public Works staff advised that when a bid is announced it is customary for potential bidders to meet with Department staff to review the parameters and requirements of the bid and to ensure that they understand the scope of the work to be performed. Oftentimes the consultation also involves a visit to the site of the project to ensure the potential bidder understands the environment in which the project will be constructed and utilized. For the East Depot Street project, Public Works staff reported that two of the three formal bidders met with staff to discuss the details of the proposed project and to visit the site. Thereafter, the staff advised that Mayor Weatherspoon predicted entry of a third bidder with a bid of around $4200.00. A third bid was in fact received. However, that bidder never consulted with Public Works staff and never, to the knowledge of the staff, visited the project site. The bid was, coincidentially, the low bid at $4,212.00. At this point, the Public Works Director advised the Town Manager of the results of the bidding process and told the Manager that he (the Director) had been required to provide information concerning the bids to the Mayor. The staff also advised the Town Manager that the Mayor had predicted the filing of a bid and had forecast the value of that bid within a very close margin. The Director also advised the Town Manager that this bid was the low – and therefore, the winning – bid.13 Upon learning of the alleged interference in the bidding process, the Town Manager directed the Public Works Department to repeat the bidding process. However, this time the Manager directed that the bidding be through a sealed bid process akin to that found in the formal bidding procedures set forth in N.C.G.S. 143-129. This process, he believed, would prevent anyone on the Town Board or any staff member from knowing the value of any specific bid before the process was concluded. The sealed bid process was conducted in October, 2016. At least four bids were received and the project was awarded pursuant to those bids without any suggestion of interference or impropriety.14 When Mayor Weatherspoon was interviewed by the undersigned, he was asked about the bidding process for the railing project. The Mayor acknowledged that he asked the Public Works Department to provide him with bid information “as it came in.” He also acknowledged encouraging a local contractor to bid on the project. The Mayor did, however, flatly deny sharing any information about specific bids with any other bidder or potential bidder.
  1. The Mayor’s Conduct Since Imposition of the Censure
During the interviews with each Town employee, the undersigned asked about their work environment and their interaction with the Mayor since imposition of the Censure Resolution by the Board of Commissioners. They all reported that following his censure, the Mayor did vacate his Town Hall office, surrendered whatever records he had maintained in that office and that he had not contacted any employee or attempted, to their knowledge, to involve himself in the daily operations of the Town. They collectively reported a dramatic improvement in their working conditions and environment. And, many of them asked that the terms of the censure remain in place so as to ensure continued positive progress.
  1. Personnel Issues

Legal Analysis

  1. The Amotion or Removal Process
  1. Amotion as a Tool for Discipline and Removal of a Municipal Officer
In the final paragraph of the its January 3, 2017 Censure Resolution (Exhibit E), the Board reserved the right to file a petition “seeking removal from office.” However, while North Carolina statutory law creates certain elected municipal offices, it does not specifically provide for the removal of those officers serving in those positions. Thus, the removal of such an official is, under proper circumstances, accomplished through the common law process of “amotion.” Amotion is the inherent power of a governing body of a municipal corporation to remove an elected official for reasonable and just cause based on evidence of misconduct or unfitness to hold office. See, State ex. rel. Burke v. Jenkins, 148 N.C. 25, 61 S.E. 608, 609 (1908) (“the power to remove a corporate officer from his office for reasonable and just cause is one of the common law incidents of all corporations”); Ellison v. Alderman of Raleigh, 89 N.C. 125, 128 (1883) (municipal corporation has the inherent power of amotion, to be exercised by its governing board). While used sparingly around the State in the last one hundred years or so, the applicability and vitality of the amotion procedure has been affirmed by North Carolina courts periodically: See, Stephens w. Dowell, 208 N.C. 555, 181 S.E. 629 (1935); Russ v. Board of Education, 232 N.C. 128, 59 S.E. 2d 589 (1950); Berger v. New Hanover County Board of Commissioners, 13 CVS 1942 (September 5, 2013)(copy attached as Exhibit L). If utilized, the amotion process must include notice, an adversarial hearing, and fact-finding by an impartial decision-maker relying only on facts and evidence presented to it through the noticed hearing process. Russ, 232 N.C. at 129-30, 59 S.E. 2d at 590-91. Moreover, the evidence presented must be adequate to support the cause asserted in the notice as grounds for removal. Id. The key question for our analysis as to whether the Board should attempt to remove Mayor Weatherspoon through the amotion process turns on whether there is “just cause” for his removal. North Carolina law provides little guidance as to the “just cause” standard and the few courts which have considered the question resist bright line rules or rules which severely limit the authority of the governing board acting as the trier of fact. Judge Gale, in his Order in Berger summarized the following principles gleaned from the limited prior case law: -“a court called upon to make final review will necessarily be faced with achieving the balance between the extraordinary concept of overturning the results of an election and a set of facts which can also be extraordinary in its presentation of how an elected official has acted or failed to act as to hamper the proper function of the office to which he or she was elected or create safety, security or liability concerns arising from his or her action or inaction in office . . . . Berger at 25; -“’just cause’ or ‘reasonable just cause’ . . . is consistent with the language of the North Carolina Supreme Court decisions . . . . “ Id. at 26; -“the notion of ‘cause’ should not flex solely on the whims of political winds . . . must be flexible enough that the governmental body has a reservoir of power to respond to that extreme set of facts that challenges the integrity of the governmental process.” Id. -“a finding of cause to remove an elected official from office will depend upon conduct that is sufficiently tied to duties of the elected office from which the official is being removed.” Id. -“.” Id. at 26-27; -“The tie between the evidentiary record and the duties of office upon which the fact finder perceives should be more express than implied . . . . {The] fact finder . . . make clear how it has measured the underlying evidence as against the duties and abilities expected of the office. Id. And it is noteworthy that in Berger, Judge Gale did not definitively rule on the sufficiency of the evidence in light of these principles, but, for other reasons, left fairly broad discretion with the governing body/ trier of fact, the New Hanover County Board of Commissioners. B. Analysis and Application to the Instant Situation

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