The N.C. Court of Appeals recently overturned a challenge to the residency of a Rocky Mount councilman, finding that the Edgecombe County Board of Elections violated both the official’s right to a fair and impartial hearing and the state’s Open Meetings Law in determining that Knight wasn’t an Edgecombe County resident.

Rocky Mount is situated in both Edgecombe and Nash counties. About two-thirds of the city’s population resides in Nash County, while the other third lives in the portion of the city that’s in Edgecombe County.

In August 2006, Roosevelt Higgs contested Councilman Andre Knight’s voter registration, claiming he did not actually live at an address on Cherry Street in the Edgecombe County portion of Rocky Mount but rather in the Nash County portion of the city. Knight represents Ward One on the Rocky Mount City Council, a district that included the Cherry Street address.

The Edgecombe County Board of Elections heard Higgs’s challenge Oct. 9, 2006. Before the hearing, Knight moved to have Gladys Shelton, the Board of Elections’ chairwoman, recused because she had allegedly said that Knight didn’t live in Edgecombe County. The board’s attorney summarily rejected the recusal motion.

The board heard evidence about Knight’s residency. After twice going into closed session, once to “discuss procedure” and again to talk among themselves and “make some kind of decision,” the board deferred the matter to Oct. 17. At that time, the elections board voted 2-1 with Shelton in the majority that Knight did not live on Cherry Street in Edgecombe County.

Knight challenged the ruling. After Superior Court Judge Frank R. Brown ruled in favor of the Board of Elections, Knight took the matter before the state’s second highest court.

In April, 2008, the N.C. Court of Appeals, unlike Brown, found serious flaws in the Board of Elections’ actions.

“The failure of the defendant Board of Elections to consider a recusal motion alleging impartiality of a board member, supported by the affidavits of three persons, creates a question as to the propriety of the Board’s decision,” Judge Sanford Steelman wrote for the Court of Appeals.

“The Board violated the Open Meetings Law by this failure and also by twice going into closed sessions without a motion or stating the purpose for the closed session. The resulting decision must be vacated and appellant is entitled to a new hearing,” Steelman wrote.

The appeals court first examined the recusal motion. At the hearing before Brown, the board’s attorney said his action was based upon personal knowledge of the situation and without consulting the board. The appeals court found his explanation inadequate.

“The Board, not its attorney, is the decision-making body. When a challenge is made to the impartiality of a member of the Board of Elections, it must be considered and ruled upon by the Board,” according to the appeals court.

The failure to fairly consider the recusal motion also amounted to a violation both of Knight’s due-process rights and the state’s Open Meetings Law.

The appeals court examined the board’s decision to twice go into closed session. North Carolina’s Open Meetings Law allows for a closed session only after a motion has been made and adopted to go into closed session. The motion must include the justification for the closed session or, if it involves obtaining legal advise, the names of the parties to the lawsuit.

On the first occasion, Shelton simply announced, “We’re going to go into Executive Session for just a moment and then we’ll be back.” When the board came back, she said, “We talked about procedure with our attorney.”

A second closed session later happened so the board members could “talk among ourselves and make some kind of decision.” Again no motion was made or vote taken before the board went into closed session.

“We hold that these two closed sessions, held without a motion and a statement of purpose, violated the Open Meetings Law,” Steelman wrote in finding the board’s actions improper.

The appeals court ordered that Higgs challenge be reheard.

While the matter was pending before the Court of Appeals, Knight was re-elected to the Rocky Mount City Council from Ward One.

N.C. Court of Appeal rulings are binding interpretations of state law unless over-ruled by the N.C. Supreme Court.

The case is Knight v. Higgs, (07-322).

Michael Lowrey is associate editor of Carolina Journal.