4th Circuit rules Monroe official’s removal did not violate his rights

The 4th US Circuit Court of Appeals has upheld Monroe City Council’s decision to remove a member of its Board of Adjustment in 2024. Kenneth Deal had argued in court that the removal violated his constitutional rights.

“At bottom, because the City has wide discretion to create, abolish, and determine the selection process for the BOA, the City certainly cannot be said to lack all discretion to deny Deal his seat,” Judge DeAndrea Gist Benjamin wrote Wednesday for a unanimous 4th Circuit panel. “And thus, we hold that discretion to mean that Deal lacks a constitutionally protected property interest in his board seat.”

Monroe first appointed Deal to the Board of Adjustment in December 2020 and reappointed him to a second three-year term in December 2023.

In August 2024, the council voted, 5-2, to remove him from the board. “Deal was not in attendance at the meeting, nor had he been notified that his membership on the BOA was up for discussion,” Benjamin wrote.

“Deal then sued the City alleging his procedural due process rights had been violated,” Benjamin explained. “He sought relief under 42 U.S.C. § 1983 and a declaratory judgment to void City Council’s removal of him.”

US Senior District Judge Frank Whitney ruled for Monroe on all of Deal’s claims. The District Court “declined to find that Deal had a constitutionally protected property interest in his seat on the BOA because no binding caselaw established such a right,” Benjamin wrote. “The district court found it unnecessary to determine whether the due process requirements were constitutionally inadequate because Deal had no property interest in his seat.”

“Neither the Supreme Court, our circuit, nor the Supreme Court of North Carolina have opined on the precise question of whether municipal board members have a claim of entitlement to their seats,” Benjamin explained. “In analogous circumstances, both our circuit and the North Carolina Court of Appeals have emphasized the role of municipal discretion in determining whether a plaintiff has a legitimate claim of entitlement to a benefit. When a local agency has any level of discretion over a benefit, a plaintiff’s claim to that benefit is not one of legitimate entitlement, but merely a unilateral expectation.”

Benjamin compared Deal’s case to the 4th Circuit’s 1992 precedent in Gardner v. City of Baltimore. In that dispute, the court ruled that plaintiffs had no constitutionally protected right to acquire a building permit.

“A building permit is certainly different from a municipal board seat but the balance we struck in Gardner persists between both circumstances,” the 4th Circuit opinion explained. “Where a local government has discretion to provide or withhold a certain benefit, a plaintiff cannot force the local government to provide that benefit by claiming a property interest based on it being conferred previously.”

“Because the City here maintains discretion over whether to create or abolish their board of adjustment, appoint members to those boards, and to determine the selection and compensation process of board of adjustment members, we conclude that Deal had no cognizable property interest in his seat on the BOA,” Benjamin wrote.

“[M]uch like in Gardner where the City of Baltimore had the discretion to reject final building permit applications, here, the City was permitted to revoke Deal’s appointment at any point,” she added.

The appellate panel rejected Deal’s argument that two North Carolina precedents from 1993 and 2010 supported his case.

“He argues that Board of Adjustment of Town of Swansboro v. Town of Swansboro and Frank v. Savage limit the authority of local governments to reduce one’s term in their municipal board seat, and therefore support his argument that he had a legitimate claim of entitlement to his board seat. We disagree,” Benjamin wrote. “Neither case holds that individuals appointed to local boards of adjustment have a constitutionally protected property interest in their board seat.”

“The question of whether one has a property interest in a municipal benefit bears on the level of discretion a municipality has,” Benjamin explained. “Swansboro’s holding ultimately relied on the town’s discretion to create or abolish its board of adjustment, and the City’s discretion here is not in question.”

“Deal may have had an expectation he would hold his board seat for his entire term, but because the City otherwise had discretion to abolish or reconstitute the BOA pursuant to Swansboro, that ‘unilateral expectation’ is not enough for Deal to have a legitimate claim of entitlement to his seat,” the opinion added.

“Whether a constitutionally protected property interest exists centers on whether the City had discretion over the BOA,” Benjamin wrote. “And unlike the board of commissioners in Frank, the City maintained an abundance of discretion over the selection, appointment, and compensation of the BOA.”

Judges Harvie Wilkinson and Paul Niemeyer joined Benjamin’s opinion.

“4th Circuit rules Monroe official’s removal did not violate his rights” was originally published on www.carolinajournal.com.