Town attorney: Rotruck’s seat is vacant

If Rotruck does not resign, council must take action to remove him from office

By Kevin Spradlin

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* Board of Elections rules 4-0 Rotruck lives in Greensboro

SUMMERFIELD — The easy way out for members of the Summerfield Town Council is for Todd Rotruck to resign. At the moment, though, that appears unlikely to happen.

Rotruck lost a challenge to his voter registration Tuesday afternoon during a hearing at the Guilford County Board of Elections in Greensboro. There, all four members of the board voted to uphold Summerfield resident Janelle Robinson’s challenge, which alleged that Rotruck lived in Greensboro, not Summerfield.

Todd Rotruck

Todd Rotruck

County Attorney Mark Payne said North Carolina General Statute 160A-59 indicates that “whenever an elected municipal official ceases to possess all the qualifications in Article VI of the North Carolina Constitution, which includes being an eligible voter, the office is vacant. I believe that statute is self-executing and that the office formerly held by Mr. Rotruck became vacant when the Board of Elections issued its decision.”

William “Bill” Hill, attorney for the Town of Summerfield, agreed. Town Manager Scott Whitaker said in an email Wednesday morning that Hill’s “opinion is that the seat is vacant.”

Whitaker said town officials expect to schedule a special meeting to discuss options in the near future. He added that the Town Council must make any appointment to fulfill what would be the unexpired portion of Rotruck’s term, which ends in December 2021.

Should Rotruck resign, any other action on the part of the council in regards to his removal from office becomes unnecessary. Rotruck, however, issued a news release Wednesday indicating he was “disappointed” with the decision by the Board of Elections.

“I am honored that I was elected in November to represent my constituents in the Town of Summerfield, and I will continue to represent the home that I love,” Rotruck wrote. “I disagree with the board’s decision and I am reviewing the process of appeal.”

Rotruck’s appeal would be considered in Guilford County Superior Court. It is not clear if the standard of proof changes from the Board of Elections to the court. Assuming Rotruck’s resignation isn’t on the horizon, state law and town procedure does not seem to require town officials to wait until Rotruck has exhausted the appeals process before taking action.

A blog by Robert “Bob” Joyce, a professor of Public Law and Government with the UNC School of Government in Chapel Hill, has written on this subject for the institution’s blog. In his post, he offered guidance to elected officials who are found to be living in another jurisdiction than the one they were elected to represent.

“Now, if the decision is against you, what happens?  You are ineligible to continue in office and you should resign,” Joyce wrote. “But what if you don’t?  Again, there is no state law setting out the procedure for removal, but your fellow commissioners may act nonetheless.”

Joyce explained that a member of the Town Council — Mayor Pro Tem Dena Barnes, or council members John O’Day, Reece Walker or Teresa Pegram — would have to make a motion during a public meeting. It would look something like this:

“I move that (Todd Rotruck’s) seat on this board be declared vacant because he has been determined by the board of elections not to be a resident of the (town) and that this board proceed to fill the vacancy as provided by law.”

Then the members vote. Joyce notes, however, that Rotruck would be entitled to cast a vote “because you are still on the board at that time.”

Joyce emphasized that if the Town Council takes action, the burden then switches to Rotruck “to bring the lawsuit to challenge” the removal.




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