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FIRST ON 3: Berger may have misused confidential record protection

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WILMINGTON, NC (WWAY) -- Long a vocal champion of transparency in government, New Hanover County Commissioner Brian Berger may have violated state law regarding open records.

Thursday morning, Berger sent an e-mail (see text below) to New Hanover County Clerk Sheila Schult asking for any records regarding discussion among other commissioners about removing Berger from community boards. In his e-mail he continued to assert that the move last month was illegal and hurt the citizens of New Hanover County by replacing a commissioner on certain boards with "underlings." Berger marked the message confidential, which protects it from being viewed publicly on the county's e-mail server and lumps it in with other e-mails considered not to be public record.

When Schult forwarded the e-mail to the other commissioners because of the nature of Berger's request for information, Commissioner Jason Thompson noted that he did not see how it could be considered confidential.

"Berger has willingly and intentionally tried to abuse said statute. I will not engage in illegal emails marked confidential," Thompson wrote.

Schult responded, "Commissioner Thompson, after checking with our County Attorney concerning the appropriate subjects to be marked as 'confidential' with the following email not falling in any of these categories, has asked me to forward this email to you as it contains a request for information (last paragraph) that involves the commissioners. I have responded to Commissioner Berger that to my knowledge no such information exists and therefore, I cannot provide it."

Berger has not responded to multiple requests from WWAY in the last day for comment.

From: Berger, Brian
Sent: Thursday, January 05, 2012 11:32 AM
To: Schult, Sheila
Cc: Crowell, Kym; Elmore, Teresa; Shell, Bruce
Subject: CONFIDENTIAL

Sheila and Co.,

And I don't mean you personally, but don't have the time or knowledge to address all recipients or lose the focus of this e-mail. I was elected to represent the people, no different than any one of the four other commissioners. The personal, spiteful and resultingly negative impact on the citizens of New Hanover County by, in an unprecedented, unjustifiable (regardless of what Tricia Vance or people who have spent more than five years accusing me of blocking out the sun), extremely dangerous maneuver to abandon publicly funded, community-based organizations completely or to try to hurt me and denigrate me by suggesting staff reporting to the County Manager, and in some instances multiple supervisors before the County Manager is a disservice to the people of this county and the organizations (many are not pleased) disrespected and belittled by the short-sighted actions of the County Board in its approach to "personal" and political differences, with me, having nothing to do with my participation in those departments and agencies this past year, unlike some of my four colleagues who have violated the very spirit of the County's Ethics Policy, not to mention the illegal aspects of those actions, and joke of an explanation defending breaking the law...well I still have a job to do.

You can "marginalize" me and cut me out of all meetings and access to information, but this has gone too far...I will fulfill my duty by being as involved as possible in every Board, demanding answers seeking justification for cutting some of the 30+ Boards traditionally assigned a Commissioner to serve on the group's Board, as free from multilayers of filters as possible.

If there's a single email contact group I will gladly request agendas and minutes for every one of them in a timely manner, direct and unfiltered. However, in making such a major, unprecedented and in part, illegal, move to "punish" me (but really hurting the citizens), the County and staff have overstepped boundaries.

I'm not interested in political games, backstabbing, etc...but I am interested in doing the job I was elected to do...and that now requires all substantive information from every agency represented by a Commissioner or designee in 2011 for 2012. It necessitates my being present at more meetings on issues of general interest (Stadiums, Solid Waste, etc).

The who, what, why, where, when for these meetings I am requesting in writing now until further notice. I'm quiet and shy and I know I can come off as a jerk even though that's not my intention at all, but I dont intimidate or take kindly to bullying and payback for resisting and acting independently in accordance with my conscience and commitments.

If there isn't a single email list for those 30+ contacts it is the role of the County Manager, if I'm not mistaken, to facilitate my request for information in a timely manner. This is not to be confused with the meeting schedule I had requested prior to Christmas...I understand that takes time. Please don't feel rushed I know you've got much more on your plate as well. I ask nothing more than you do the best you can even if its done a little at a time, piecemeal. You've done a great job thus far Sheila, I have no complaints, and no concerns.

Lastly, I would like a list of all meetings and conversations and documents pertaining to kicking me off Boards without cause. Though legal, in some instances, perhaps, anytime a majority by sole virtue of numerical superiority squash minority dissent its a major, substantial threat to the integrity and expectations of our system of government. Replacing a duly elected official with an underling or unerling's underling poses a threat that warrants some review. With that in mind, please send me in writing the dates (inc. conference calls), participants, documents, "action items" and related materials regarding kicking me off Boards.

Thank You,

Brian

(This being email I realize the tone here could easily be misconstrued as angry or something similar, but please know that's not the case...I apologize if it reads that way...but that's not the intention. It's serious, matter of fact, emotionless...but please don't take it as angry or critical - it was not meant to be critical of anyone copied, in any way. I appreciate the fine work you all do, but I do need answers sometimes...this being one of those times!)

Brian M. Berger

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