Belhaven officials have their day in court
Published 1:34 pm Tuesday, July 17, 2007
Court rules Boyette is a resident of town, eligible to hold office
By EUGENE L. TINKLEPAUGH
A Beaufort County Superior Court judge on Monday upheld the Beaufort County Board of Elections’ opinion that Dr. Charles Boyette lives in Belhaven.
The ruling preserves Boyette’s right to hold the town-council seat he lost when a Superior Court jury last year determined he wasn’t a town resident.
After an hour of arguments and a 15-minute recess, the court found no error by the Board of Elections in determining the residency of the appointed — and reappointed — councilman. Presiding Judge Alma Hinton said it was not the court’s charge to weigh the evidence that was brought before the board last August but to determine if an error of law was made when the board reached its decision.
Washington lawyer Steve Rader, who has represented Belhaven resident Billy Millican in the residency challenge, did not offer any opposition to the facts in the record, but he did oppose how those facts were applied to the law. Rader said it was his client’s intention to appeal the court’s ruling.
An appeal made within the next 30 days will put the case on track to be heard by the Court of Appeals.
Hinton’s ruling preserves Boyette’s voter registration as a Belhaven resident, which also means he is eligible to run for office. He has already filed to challenge sitting Mayor Adam O’Neal in the Nov. 6 election.
O’Neal defeated Boyette in the 2005 mayoral election. Prior to that, Boyette had served as Belhaven’s mayor for 12 consecutive years.
The Belhaven council appointed Boyette to a vacant seat on that council in February 2006, which prompted Millican to seek court action. That case was heard by a jury at the Superior Court level in July 2006, and Boyette was ousted from his seat as a result.
Millican then petitioned the Board of Elections to revoke Boyette’s voter registration.
The board heard the case in August and found that Boyette was a resident of Belhaven. Boyette testified during that residency hearing that he had adjusted his lifestyle to reflect the jury’s summation of what constitutes residency. With the Board of Elections decision, the council reappointed Boyette to the seat the Beaufort County jury stripped from him.
Kellie Hopkins, director of the elections office, said all the evidence Rader presented to the judge Monday was weighed by the board.
Millican appealed the elections board’s decision, which brought the case back to Superior Court.
Boyette owns two homes — one on Edward Street that he claims as his primary residence, and one on Foreman Lane outside Belhaven. Millican contends the Foreman Lane house is Boyette’s primary residence.
According to case law, Rader argued, Boyette had to prove to the elections board that he had changed his residence to Edward Street.
Rader listed more than a dozen items of fact from the record, which he stated, gave sufficient evidence that Boyette had not changed his residency since the jury’s 2006 decision.
Boyette, Rader argued, eats at his home on Foreman Lane, keeps his pets at that home and stays most weekends there. Further, Rader said, Boyette does not receive mail at his home on Edward Street, does not put out a garbage can at that house and his driver’s license does not list Edward Street as his residence.
Boyette’s lawyer Sid Hassell stated that the issue for the judge to determine was if there was an error in law or if the elections board’s determination was made arbitrarily or capriciously.
Boyette “had always intended and thought he did live in the Town of Belhaven,” Hassell said.
Hinton asked Rader if the petitioner took exception to any findings of fact made by the Board of Elections.
Hinton disagreed with Rader’s interpretation of the case.
Councilwoman Cynthia Heath said she wished the judge’s ruling was the final verdict in the residency challenge.
Boyette said he is pleased with the judge’s ruling.
Officials reach a deal in impromptu mediation
By EUGENE L. TINKLEPAUGH
Several Belhaven officials were on opposite sides of a courtroom Monday, but they came to an agreement following closed-door talks that lasted nearly two hours, attorneys said,.
The Beaufort County Superior Court case — brought by Belhaven Mayor Adam O’Neal against the town manager, town clerk and four of the five sitting town council members — dealt with public records the mayor wasn’t given access to.
O’Neal filed the lawsuit against the council members and manager in their capacities as public officials and individuals.
The scope of Monday’s hearing was limited to the defendants’ motion to dismiss the lawsuit.
Presiding Judge Alma Hinton dismissed the defendants from having liability in the case as individuals, but she did not dismiss them from having liability in their official capacities. In her chambers, she then advised attorneys to make an effort to resolve the dispute. The attorneys met with their respective clients behind closed doors and worked with the judge toward a common understanding.
Attorneys will draft a consent agreement, which will be brought before the court for approval after it is signed by the differing factions. Hinton scheduled that hearing for 10 a.m. Aug. 6. That hearing will precede other items on the court’s calendar for that day.
Before ruling and advising mediation, Hinton asked the parties for the “underlying reason why the town manager won’t give the mayor public records.”
New Bern lawyer Rudy Ashton, who represents the defendants in the civil case alongside the town’s attorney, said the mayor’s requests were “overly broad.”
O’Neal’s representative in the case, Washington lawyer Franklin Johnston, said his client’s bone of contention is that the mayor “needed to have access to information conducted through e-mail by the town clerk … that was not being sent to him.” Those electronic correspondences were being sent to others on the town council, Johnston noted.
In his motion to dismiss, Ashton argued council members were entitled to legal immunity. The four members named in the suit did not second Councilman Steve Carawan’s motion to compel Town Manager Tim Johnson to comply with public-records law. When the issue was brought up for discussion at another council meeting, the council tabled the issue.
Hinton said the council, in its official capacity, did have a responsibility because the town manager is directed by the council and the council didn’t direct him to act.
Keith Mason, the town’s attorney, told the judge there was a “political motive behind the lawsuit.”
If the mayor was not included in correspondence distributed to the council, it “would have been an oversight, not a matter of policy,” Mason said. “We are not trying to evade public-records law.”
Mason said he further asked the town clerk to resend the mayor, in bulk fashion, all copies of mailed correspondence Town Hall sent out during the two months in question.
Johnston argued that e-mails are not “unduly burdensome” to send, and yet, the mayor hasn’t received those items he’s requested.
Mason responded that there was no specificity in the mayor’s requests and that town employees shouldn’t be burdened with a “fishing expedition.”
While attorneys consulted with the judge in her chambers, Johnson said the ruling to remove from the lawsuit the individuals named was a “partial win.”
Following the closed-door talks, Ashton pronounced that both sides had “reached an agreement in principle.”
Ashton later told the media that the judge, in chambers, had “suggested” an immediate attempt at mediation.
O’Neal confirmed that the tentative settlement “has reached in principle the goals I had of obtaining records.”
When the settlement is signed, O’Neal said, he then can comment further on the case.