Amotion — the process where elected officials can be removed from office before voters get a say — is exceedingly rare, and rightly so. While amotion has been recognized as a valid part of the democratic process in North Carolina since at least the 1800s, it “should be limited to extraordinary circumstances, for setting aside a decision of the electorate is not a light manner” (Berger v. New Hanover County Board of Commissioners, No. 13 CVS 1942, 2013 NCBC LEXIS 42, *29 (N.C. Supreme Court, Sept. 5, 2013)).
The limited North Carolina law on amotion explains the procedural and due process requirements for an amotion proceeding. Broadly, the case law requires notice to the elected official in question, the opportunity to be heard, and “sufficient cause shown” for removal from office (Burke v. Jenkins, 61 S.E. 608, 609 (N.C. 1908)). A fair hearing regarding the misconduct alleged, with the removal decision based on facts in the record — not personal bias or political affiliation — also are critical (see Berger, 2013 NCBC LEXIS 42, at *36). Berger also made clear that the misconduct warranting removal must be tied to the duties of elected office.
After the amotion hearing, fellow elected officials within the same office (i.e. fellow commissioners) then vote on whether to remove the official. A removed official can appeal the decision to a North Carolina trial court, which acts as an appellate court in conducting its review. In only limited circumstances is an individual “disqualified” from holding office in the future, and removal from office through amotion is not one of them (see N.C. Constitution art. VI, §§ 6, 8). Consequently, an official removed by amotion can run for reelection.
Monroe City Council case
James v. City of Monroe marks the first decision on amotion law in nearly a decade (No. 3:22-cv-00178-RJC-DSC, 2022 U.S. Dist. LEXIS 142176 (W.D.N.C. Aug. 10, 2022)). The prior (and most instructive) North Carolina decision on amotion was decided in 2013, and only a handful of North Carolina cases exist on the subject (see Berger, 2013 NCBC LEXIS 42, *24-29).
In James, the city of Monroe brought an action against Councilwoman Angelia James after events that occurred on Sept. 9 and 10, 2021, involving James. Her actions, involving erratic behavior spanning a hotel, her house and a hospital, had become a matter of significant public discourse and garnered local media attention.
Counsel for the city presented evidence at the amotion hearing to an appointed hearing officer overseeing the proceeding. The city argued that James engaged in misconduct in office, and that just cause existed for her removal. James, represented by counsel, presented a defense.
The city engaged the co-authors of this commentary as part of the amotion proceeding; Valecia McDowell of Moore & Van Allen served as the hearing officer, and Raquel Macgregor Pearkes was an associate who supported that effort. As hearing officer, McDowell did not recommend that the City Council remove or not remove James from office. Rather, McDowell found that the council was within its rights under North Carolina law to remove James should it choose to do so. With support from her team, the hearing officer issued proposed findings of fact and conclusions of law for the council’s consideration in a 46-page report, which were fully adopted by council. The council members then voted to remove James from office.
James appealed the decision to federal court and moved for an injunction enjoining the city from removing her from office. She also brought multiple claims based on protected speech under the First Amendment and alleged due process and equal protection violations. The court denied her injunctive motion, finding she had not demonstrated a likelihood of success on the merits for her various claims.
James appealed the decision to the 4th U.S. Circuit Court of Appeals; argument there is scheduled for Sept. 19, 2023. The decision will be significant, as it will be the first 4th Circuit panel addressing North Carolina amotion law in its 140-year history.
Federal District Court’s guidance
James is notable because, for the first time, an independent hearing officer and her team — not the government body itself — oversaw a removal hearing. As mentioned, the Monroe City Council also tasked the hearing officer with issuing proposed findings of fact, conclusions of law and a recommendation as to whether the council member should be removed. Notably, the council retained the sole power to render a decision on removal.
In our view, oversight by a hearing officer offers potential advantages, including independence and subject matter expertise. We worked diligently to provide a fair hearing, carefully applying the legal requirements and documenting our recommendations in the hearing officer’s report that was presented to the City Council before its members voted on removal. This diligence was recognized when the court denied James’ challenge on appeal, finding that sufficient evidence from the hearing officer’s report supported the removal.
James also is instructive because of the court’s analysis on the limits of free speech for an elected official. As examined by the court, the hearing officer provided, and the City Council adopted, three instances of misconduct in office providing just cause for the James’ removal. First, she engaged in a physical encounter with a police officer that constituted assault and battery. Second, she violated the city charter and the City Council’s code of ethics when she purportedly fired and promoted police officers and tried to physically remove a police officer’s badge. Third, she made false reports to the police that put individuals’ safety at risk.
Although James argued that her statements purportedly firing, demoting or promoting police officers were matters of public concern warranting First Amendment protection, the court disagreed. The court explained that knowingly or recklessly false statements, even on matters of public concern, are not protected speech. The court found that the council member also engaged in misconduct that is clearly not protected speech, including her physical encounter with a police officer.
The court also suggested that certain code of ethics violations, which can be vague or ambiguous, might be insufficient to support removal. Rather than addressing whether the code of ethics provisions at issue were constitutionally vague, the court relied on the hearing officer’s report that provided other grounds for removal. This guidance reinforces the principle that removal should remain a rare event in North Carolina — reserved only for unambiguous instances of misconduct relating to the duties of office.
Since James, we have already assisted in another amotion proceeding, with McDowell again serving as the hearing officer. That proceeding also resulted in the removal of an elected official.
It is uncertain whether amotion is becoming more common, but a few things are abundantly clear. Amotion should not be used to advance personal or political agendas. Elected officials should be given notice and an opportunity to be heard. And while amotion can be exercised as a valid part of the democratic process, any action that overrules voters should never be undertaken lightly.
Valecia McDowell is a national thought leader in governmental and internal investigations, conduct risk management, and civil rights and racial equity assessments at Moore & Van Allen, PLLC.
Raquel Macgregor Pearkes is a litigation associate at Moore & Van Allen, PLLC. Her practice focuses on complex litigation concerning commercial contracts, business torts, corporate governance disputes, and government proceedings.T