Attorney for Berger amotion appeal to cost thousands in taxpayer dollars

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Submitted: Tue, 07/02/2013 - 4:49am
Updated: Tue, 07/02/2013 - 12:24pm

WILMINGTON, NC (WWAY) — While a court is set to hear the appeal of Brian Berger’s amotion, the question arises about how much the county will spend on hiring an attorney for the case.

Monday night, New Hanover County Commissioner Jonathan Barfield told WWAY the county is expecting to spend at least $5,000 of taxpayer money on attorney fees. Barfield didn’t have an exact dollar amount on what the process will cost.

A judge will decide July 16th if the vote to use amotion to oust Berger from office was appropriate.


  • SurfCityTom says:

    Mr. Berger continues to be paid; the county continues his health insurance as well as other monthly allowances.

    I would like to see, if this goes to higher ground, the Commission forced to allow Mr. Berger to resume his seat and place his picture and information back on the County website.

    And of course the longer this drags on, the longer Ward & Smith issues fee bills for service rendered.

    I wonder too, as Woody allowed this and is the mastermind behind this, could he be subject to action by the Bar?

  • Guestobs says:

    Agree with all this political thug is a weasel who should be voted out.
    If there is justice he will be rebuked for his tactics in this matter- but what should we expect from the slime who smeared Bozeman?

  • SurfCityTom says:

    you are misreading.

    Ward & Smith has to do something to show value for the thousands which they will receive.

    Look for a continuance to allow them time to get up to speed — possible.

    IN all honesty, regardless how the Judge finally rules, it will not be the day of the hearing.

    He’s going to take it under advisement for a ruling way down the road. Needs time to consider all apsects of an issue and a topic which has not been in a courtroom in 80 or 90 years.

    Brian will be getting checks for the future. Now, will Berger’s attorney be astute enough to file a brief requiring the Council to allow Berger to resume his chair pending an outcome?

    Something to think about. Berger has been quiet of late; the retired State Senator and his pet Froggy have not been heard from.

    Something needs to happen to give WWAY someting seemy and seedy to report on.

  • Politico AdviseryO'brien says:

    In the educated words Prakash Javadekar once spoke….
    “He (assBERGER)has forfeited his right to occupy the office he holds and we demand that he should resign forthwith”!
    Here! Here!

  • kurt says:

    Your comment stating that Brian will have no appeal is not true. If he loses he will appeal to the NC Court of Appeal, also the county can it to when they lose, if they decide to spend more of the county money.

  • Vog46 says:

    From an earlierstory:

    “An order issued last week by Special Superior Court Judge for Complex Business Cases James Gale granted Berger a July 16 hearing date at the North Carolina Business Court in Greensboro. According to the order, the hearing will address whether amotion was the proper procedure to use to remove an elected county commissioner, whether the procedures the board used in the amotion procedure complied with due process and whether if amotion was a valid procedure, if superior court has jurisdiction or power to consider Berger’s appeal.”

    It would appear as though there are several questions that need to be answered before the amotion process can proceed. The most important is:

    “the hearing will address whether amotion was the proper procedure to use to remove an elected county commissioner,”

    If the judge rules it was not the proper procedure all other apsects become moot – unless appealed by the County. Given the outcry from NH County I would suspect that if the judge ruled amotion is not proper then Woody will stick with censure which is a legal step to follow. If Woody pursues this through appeals, costing taxpayers even more money, he may get lynched.
    The tables have turned completely around on the county commission.
    If the judge rules amotion is improper:
    Woody looks like an ass by pursuing it with even more county funds wasted and
    he looks like an ass for doing it in the first place.

    I think we’ll need more popcorn……..


  • Vog46 says:

    Did you happen to notice Judge Gels title?
    “Special Superior Court Judge for Complex Business Cases James Gale”

    Complex business cases?
    One issue here is does business law trump election law? Or lack thereof?
    One body of people (voters) put Berger in, another body (the county commission) is trying to take him out. If Gale rules in favor of the commission, Berger can, and should argue to a higher court that the election process has been derailed by another party not associated with the election process.
    I suspect and I fear, that this Judge may punt this to a higher court because of the two different law venues involved – election law and business law. His forte is business law as indicated by his title.
    If he punts it to a higher court we could easily see a court date for a preliminary hearing sometime in 2014 – WOODY LOSES because the election is in? 2014 and Brian won’t win if he runs.
    If appealed this could end up at the NC Supreme court and it could be a marvelous case to “hear”.
    Stay tuned…….

  • Vog46 says:

    “A judge will decide July 16th if the vote to use amotion to oust Berger from office was appropriate.”

    I take this to mean two possible things.
    First – it could mean a two part ruling the first ruling being whether the PROCESS is correct and legally binding.
    Second – it could also mean that he could rule that it was a legal process AND he could make a determination of fact at the same time as to whether the county made the case or not.

    This is getting interesting but use of common law for removal of an elected official which over rules election law still seems like a stretch to me.


  • dean bailey says:

    thank you mr good republican

  • SurfCityTom says:

    do not get carried away.

    Nothing says it will be a one day hearing. Do not be surprised if Ward & Smith seeks a postponement to allow them additional time to prepare.

    Once all sides have been heard, do not be surprised if the Judge takes the case under advisement which means he’ll issus a decision at some future date to be chosen by him.

    Meanwhile the County pays Ward & Smith. They would continue paying Berger.

  • Vog46 says:

    It will be a one day hearing if he decides amotion is not the proper procedure to use.
    I don’t think that ruling could be appealed


  • Guestnit says:

    Woody White is a weasel and a waste. He is plain wrong on the law. this is an action that never should have taken place and County should pay for White’s incompetence. Voters elect and remove- not political thugs like White. If we have an honest(?) Court system- this man is reinstated immediately. Like him or not- we should remove White the Weasel for acting like he was Joe McCarthy.

  • Vog46 says:

    Return Berger to his seat?
    In essence he never lost it. If he returns is he still censured? I don’t think the courts can over rule that as it was voted upon by the commission – and the policies they used as a basis for the censure are New Hanover county policies.

    It is a curious case but if Gale rules that business law does NOT apply (and amotion is steeped in business law history) then the Commission would have to appeal THAT ruling to a higher court – meaning they are hell bent on removal at all costs. To me this is a lose lose for Mr White and crew.
    But if Gale rules that he doesn’t feel that his court is the proper court to make such a decision he punts it “upstairs”. The higher you go the longer it takes to get hearings.
    I believe that Gale is in a pickle right now as he’s dealt with business law, but this pits business law up against election law – which is far outside the realm of his court. He could as you say, take it under advisement, but if I had to venture a guess I think he has 2 choices only:
    Rule that amotion does NOT apply here, or
    Rule that the case involves election law and cannot be ruled upon by his court.

    But if the county pursues this real hard the cost will easily go 6 figures.


  • SurfCityTom says:

    and assume the Judge will rule on the amotion process as being the correct tool for use to remove an elected official. That opens up a can of worms many elected personages would like to see never open.

    Again, there is nothing which requires him to issue a decision that day.

    By his own words, he acknowldges there are many issues.

    Having spent a significant amount of time in courts, I will be greatly surprised to see a quick ruling on this. Look for him taking this under advisement with a decision way down the road.

    What would be neat will be an order issued requiring the return of Berger to his seat while this is pending.

    On another note, no way will Barfield’s estimate of $5,000 be anywhere near the actual costs for Ward & Smith.

  • Guest611 says:

    You were removed from office. Right or wrong, i dont know. But you ran on the platform that you would be a voice for the taxpayers and not spend their money. Now this has all just gone off the tracks. You may have been removed unjustly, but in the process of you trying to get back your “good name” your actions are costing the tax payers money. Not to mention that you are suing the county. Who do you think will foot the bill? The tax payers that you swore to defend. Its time to do something for the greater good and fulfill the promise you made to me and others. Drop this lawsuit. People know what it was and know that it wasnt what should have happened. But now it is you that holds the power. You can either cost your loyal tax payers thousands of dollars to try to publically get your reputation back, or you can take one for the team. Drop the suit for those you swore to protect. Thats when your true intentions will really be shown and you can show people what you stand for. If not, you are just a double speaking politician who is only concerned with yourself. In other words, you will be no better than them.

  • Peyton Garrett says:

    $5,000.00……..a day. What is Barfield smoking? Probababy closer to 7-8K a day plus expenses.

  • SurfCityTom says:

    not likely. That would fund about 10 hours of work by Ward & Smith. They likely have already incurred in excess of 10 billable hours.

    In the event Mr. Barfield is unaware, and I assume he is from his comment, billable hours include drive time from the New Bern office of Ward & Snith. Matters not whether they drive to Wilmington to consult with their client; take statements, or drive to Greensboro for the hearing. Those are billable hours as are the hours spent returning to New Bern. They’ve likely already gone over 10 hours.

  • jj says:

    The cost will rise when the court finds in favor of Berger. I see him sueing to get his attorney fees and other expenses.

  • Political AdvisertObrien says:

    Berger should agree if he legally loses his appeal, he (betides agreeing never to run for a political position in this state) should sign a contractual agreement to repay the tax payers the exact total cost of the proceedings.) but he will not, because he is not right in the head, and is a political coward.
    One would think he could be removed because of his mental health history of destructive and sporadic behaviors alone, if the disability would or could prohibit him from effectively and professionally holding an office of a position of power but on the flip side Woddywood is too lazy to do something correct the first time around. With politicians like this, no wonder traffic on s. college and oleander is so screwed up. They can’t fix anything or do anything correct, but back to the story this bergermoronicahole needs to GO. Berger you’ve cost the citizens in our county too much money AND embarrassment. You need help. Take a prolonged sick leave of absence to spare yourself further humiliation and leave. No one wants you in office, and no one likes you, but you are too SICK in your own mind to even realize it. This aint a fairy tale bub. You are worthless to this county. GO. You’ve wasted enough money and time. If you truly cared about anything or anything else other than yourself, you would just drop the issue and leave while you still had the chance to retain any dignity, but Berger ONLY cares about Berger. If he cared about the citizens, he would stop wasting time and money but since Berger only cares about Berger he will continue to be selfish and waste tax payer money and time.

  • Guest-o-matic says:

    You can’t even hire a decent divorce attorney without putting at least 5K on retainer, much less a public legal wrangling as is about to happen here.

    The longer this goes and the more money this costs will just further humiliate Woody and his clan of commish’s. How Woody plans on continuing a successful law practice after the public viewing his rediculous and costly actions is beyond me. This isn’t just political suicide, it’s business suicide for him.

    This is one attorney referral EVERYONE will remember!

  • Vog46 says:

    It took $2500 for my daughters custody attorney and he was a country bumpkin lawyer here in town.
    So getting a constitutional question answered by a big time firm in Greensboro for $5,000 is certainly a deal isn’t it Jonathan Barfield?
    (Was this a sale price Jonathan? a Groupon deal perhaps?)


  • guesty says:

    Since this circus is at the request of Woody White, let him personally pay the bill for the lawyer.

  • Wilmington Observer says:

    Five thousand of MY (tax) dollars?? Why don’t you just use the staff attorney that you already have?? I noticed in, another publication you stated “………boards have always hired outside counsel that had expertise in an area….” If I’m not mistaken there is NO ONE with “expertise” in this area because it has NEVER been done in N.C. before. I hope the commissioners’ actions are overturned so that the voters can remove Mr. Berger …….. the LEGAL way!!!

    Wilmington Observer

  • Vog46 says:

    We have no recall provisions in the NC state constitution.
    Don’t blame Berger for that
    Is it the fact you don’t like Brian, and Brian ONLY so you want him and only him removed? You see the problem here, and the REASON why amotion is such a curious and dangerous subject.
    If you want this to apply to ONLY Brian then you are on a witch hunt and you are usurping my voting rights.
    What NC needs is recall rights.
    This situation with Brian could blow up into something much bigger. Many people across the state could see this as a means to bypass the lack of recall elections and tie up politicians in many other counties. The fact that the hearing is in Greensboro is making this front page news up there – first because it’s a legal quirk that doesn’t come along too often and second because it involves someone else’s weird elected official, so we become the laughingstock of the area.
    But this is why this case is so dangerous. If the Superior court judge rules that amotion is “OK” to use he is in fact ruling that we don’t need recall elections to remove officials from office and that may turn NC politics upside down and hopefully FORCE the legislature into doing something about it.
    Or he could rule that it is not OK to use amotion and in turn make Woody White, the County Commission and the local GOP look like idiots and money spenders.
    Elected officials cannot be sued in this state from what I’ve read so Brians lawsuit goes nowhere in my mind.

    But this “quirk” was discovered by Woody White, pursued by Woody White and paid for by taxpayer dollars per order of Woody White. If Woody wins, amotion could be used against him – if he loses, he, like Brian, will lose in their next election. Which has no extra cost to taxpayers……
    Woody could have, and should have told taxpayers “The only thing we can legally do is censure Brian for is actions and leave it up to the voters to decide Brian’s fate in 2014.”
    At THAT point he puts the onus back on the voters with no cost to taxpayers and recognizes the fact that we have no recall provisions. He’s off the hook, and Brian is rendered impotent as a commissioner.
    Woody White went too far with this….


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