Former Summerfield Town Councilmember Todd Rotruck is taking the battle over his Town Council seat to North Carolina Superior Court.
On Thursday, April 26, Rotruck filed an appeal in an attempt to overturn a decision by the Guilford County Board of Elections that ultimately removed him from the Town Council. He simultaneously filed a lawsuit against the Town of Summerfield that claims “illegal” and “vigilante-like actions” by Town Attorney Bill Hill and Town Manager Scott Whitaker prematurely excluded him from the council seat he was elected to and also infringed on his constitutional right to serve as a councilmember.
Rotruck is appealing the Tuesday, April 17 Board of Elections decision that determined Rotruck was not a legal resident of Summerfield. That decision subsequently cost him his seat on the council because state law says someone must be a resident of a town to serve on its council.
In the court actions, Rotruck is seeking a reversal of the ruling by the Elections Board and requesting the court issue a preliminary injunction that allows him to serve on the Summerfield Town Council until the appeal is adjudicated. His appeal of the Elections Board decision claims the board was “arbitrary and capricious” in its ruling and states the decision wasn’t evidence based. It also claims Rotruck was wrongfully denied the ability to present a witness’s testimony and states that the outcome wasn’t the result of a properly conducted quasi-judicial proceeding as required by North Carolina law.
The appeal of the Board of Elections decision states that the faulty decision will do irreparable harm to Rotruck if he’s excluded from Summerfield Town Council meetings while the matter is being decided.
Several sources said the Town of Summerfield intended to use outside legal counsel to help defend the town against the lawsuit and that’s the reason a Town Council meeting was called quickly for Monday, April 30. The meeting was expected to consist of a closed session in which the Town Council would hear legal advice and discuss the matter. However, about an hour and 45 minutes before the meeting was to take place, it was cancelled. Town representatives did not give a public explanation for the cancellation, however, two sources said one reason that was given behind the scenes was that the outside attorney could not make the meeting.
Rotruck is also seeking a restraining order to prevent the Board of Elections from changing his voter registration address from Summerfield to Greensboro – the action it took after Rotruck’s April 17 hearing in front of the board.
In addition, Rotruck is seeking for the Town of Summerfield and Guilford County to pay his attorneys’ fees and other court costs related to the two suits.
The appeal and the lawsuit, which were filed by attorney Marsh Prause with the Winston-Salem firm of Allman Spry Davis Leggett & Crumpler, state that injunctive relief from the courts is necessary because Whitaker, in his capacity as town manager, “summarily and unilaterally” excluded Rotruck from fulfilling his responsibilities as an elected town councilmember. The suit states that Whitaker acted in an illegal and “insubordinate” manner.
The document implies Whitaker did so because Rotruck recently was part of an effort to convince the Summerfield Town Council not to renew Whitaker’s contract as county manager. Though that effort failed on a 3-to-2 vote, Rotruck’s suit implies that Whitaker’s actions were the result of a vendetta against Rotruck.
The court filing points out that, “Notably, as part of his [Rotruck’s] participation as a member of Council … Rotruck joined other members of the Council in openly questioning whether or not the Council should renew the employment contract of Summerfield’s Town Manager Scott Whitaker.”
The attempted removal of Whitaker is part of a larger battle going on in Summerfield right now – with one side in favor of denser development for the town and others who want to see that development done in a more controlled way. Rotruck is on the side of more controlled development in the town.
Rotruck’s complaint against Summerfield stems from a combative Monday, April 23 Town Council meeting at which Rotruck wasn’t allowed to participate after the Guilford County Board of Elections – in response to a challenge by Summerfield resident Janelle Robinson – determined that Rotruck didn’t actually live at his claimed residence of 7437 Strawberry Road in Summerfield, but instead lived in Greensboro. The Rotruck family has lived in both homes in recent years, but the one in Summerfield has been undergoing major renovation since late last year.
Guilford County Attorney Mark Payne, and Hill, who’s represented Summerfield for years, both stated right after the Board of Elections hearing that the ruling made Rotruck ineligible to serve on the Summerfield Town Council. They said the decision immediately vacated the Town Council seat Rotruck was elected to in November.
Payne said this week that, in his legal opinion, it was not Hill or Whitaker who removed Rotruck – it was state law that did so.
“The statute itself did it,” Payne said.
He said decisions by the Board of Elections go into effect as soon as they’re made – not when they are written up and signed – so Rotruck was off the council as soon as the vote was taken.
“It is unusual in that it is self-executing,” Payne said of the statute that came into play once the Board of Elections reached its decision.
Payne said the case is also unusual in another way: Generally, when this statute comes into play, he said, no one is contesting it. For instance, if someone lives in a town and sits on a town council but then moves away, everyone usually involved agrees on the facts. But not in this contentious case.
The Summerfield Town Council consists of five councilmembers and a mayor who only votes in the case of a tie. In November, Rotruck, Summerfield Mayor Gail Dunham and Town Councilmember Teresa Pegram were elected to the council on campaign platforms of more controlled development in Summerfield.
Rotruck said the move to oust him was purely political and Robinson’s voter residency challenge was backed by money from others who want looser development standards for the town.
“The same old people had been running things for years,” he said. “There are questions about the way things have been done in that town for years and many people are upset by that.”
He said pro-development forces with a lot of money behind them have been at the heart of the effort to unseat him.
Rotruck didn’t have an attorney at the April 17 Board of Elections hearing but he does now. He said he thought that hearing would be a low-key affair where each side just stated their case and, Rotruck said, he was very surprised to come into the Blue Room in the Old Guilford County Court House and see that Robinson was represented by well known Greensboro Attorney Marshall Hurley.
“I didn’t have an attorney; they had a high-priced attorney,” he said.
Rotruck’s court filings say that he established legal residence in Summerfield in 2016 and continues to legally reside there now.
His house on Strawberry Road is undergoing major renovation, but Rotruck stated at the hearing that he spends a great deal of time there and the entire family intends to move back there when that work is finished this summer.
It also claims that town forces have been conspiring against him. According to the complaint filed against the town, Robinson, Whitaker and Town Councilmember Reece Walker met in March in a clandestine meeting at the Summerfield Town Hall and there were no audio or video recordings of that meeting as is the routine practice for meetings involving town related business.
Once the Elections Board had made it decision, Summerfield moved with speed to get rid of every sign Rotruck had been a councilmember. Very soon after the decision, Rotruck’s name was off the website and off the town’s letterhead. He was also off the email list of the Town Council and he didn’t get official notice of the special Town Council meeting held on April 23 to discuss the vacancy on the council.
Rotruck’s lawsuit against the town states that Hill mischaracterized the unwritten decision from the Board of Elections and also that Hill sent an email to the council that claimed falsely that the Elections Board had ruled Rotruck was “ineligible to serve on the council,” and had advised the council that the seat was vacant.
“What was the rush?” Pegram said of the decision to call the meeting.
She said the faction against Rotruck was, for some reason, intensely eager to fill that seat right away.
At the April 23 Summerfield Town Council meeting, the council took no action but staff presented the council with a prepared statement to approve. The board could not reach an agreement, however.
Though the council didn’t vote on the document, a councilmember provided a copy to the Rhino Times. A watermark across the page states, “Confidential & Draft.” It reads, “The hearing outcome was that Mr. Rotruck was declared ineligible to vote as a resident of the Town of Summerfield. The purpose of this evening’s special called meeting was for Council to obtain legal advice from the town attorney. The town’s stand is that the Board of Elections’ decision immediately rendered the seat held by Mr. Rotruck vacant.”
It continues: “The town has five Council members plus the mayor and per its charter, the Council appoints a replacement member to serve the remainder of the unexpired term, which runs until 2021. Council desires to maintain a full governing body for citizen representation and it expects to fill the vacant position in the near future.”
Though Payne and Hill both are of the opinion that the paperwork from the Guilford County Elections Board office wasn’t relevant to the removal of Rotruck, there was still discussion in Guilford County government about rushing that paperwork and providing that written decision Monday, April 23, hours before the meeting in Summerfield. However, the written decision wasn’t released until the Tuesday afternoon, the day after the Summerfield meeting. The Board of Elections had a meeting scheduled for that Tuesday and Payne said there was a desire by the board to review it and sign off on it at the meeting.
Guilford County Board of Elections Director Charlie Collicutt said this week that his office has now provided Rotruck with all the written documentation he requested, including the signed order, a full transcript of the hearing prepared by the court reporter and copies of all evidence and exhibits presented.
At the April 17 Elections Board meeting, the board members did not mention whether or not the decision would make Rotruck ineligible to serve in Summerfield. After the decision, however, Payne and Hill stated publicly that the board’s action, by law, meant Rotruck could not continue to serve on the Summerfield Town Council.
Rotruck’s complaint against Summerfield states that, after the decision, Hill “began to implement his personal unilateral decision to immediately remove Rotruck from the Council by sending an email to all of the members of the Council except for Rotruck.” [Italics theirs].
The suit also states that North Carolina law doesn’t allow a town manager and a city attorney to make the decision to remove an elected official from the Town Council.
When Rotruck showed up at the April 23 Summerfield Town Council meeting and attempted to take his seat on the council, his lawsuit states, he was threatened with arrest for seeking to take his seat on the council. At the meeting, Hill said the council had two choices: leave or call the sheriff. Eventually Rotruck moved into the audience and the meeting took place.
The lawsuit against Summerfield states that Whitaker’s actions were “insubordinate” because, while he can fire employees, he cannot remove elected officials from their seat.
Summerfield Town Councilmember Dena Barnes, the wife of Guilford County Sheriff BJ Barnes, said that if Rotruck wanted to continue to serve on the Town Council, he should have found a house in Summerfield for him and his family to live in while is Strawberry Road home was being renovated.
“I would find a house in the town in which I was elected,” Barnes said, adding that there are plenty of available homes in the area for rent or for sale.
“There’s houses built across from me that are available,” she said.
She added that Rotruck now lives near Summerfield but not in the town.
“He’s close, but close doesn’t count,” Barnes said.