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Attorney: Failure to appoint Arundel councilman hurts legal cause

The Anne Arundel County Council's failure to fill a vacancy created when a member was sent to federal prison "seriously undermines" the county's position in a lawsuit over whether he can return to office, according to the county's top lawyer.

County Attorney Jonathan A. Hodgson wrote a blistering letter to the council as he prepared to defend the law that removed from elected office Daryl D. Jones, a Severn Democrat who began serving a five-month federal prison sentence in January on a tax conviction. Jones has sued the council in an effort to regain the District 1 seat when he finishes serving his time; his case will come before a judge in Circuit Court on Wednesday.

The council voted unanimously in January to declare Jones' seat vacant and begin the process of selecting a replacement. After more than 100 rounds of voting on four separate occasions, the council's six members have remained locked in a tie over who should succeed him.

In the two-page letter dated March 7, Hodgson said that the "council's failure to fill the vacancy in District 1 ties the hands of this office … seriously undermines the council's position as a defendant in this case and directly promotes the efforts of Mr. Jones as he seeks reinstatement."

The letter was obtained by The Baltimore Sun from a source outside county government. Hodgson verified that he wrote the letter but declined to comment, saying the letter constituted legal advice to his clients.

Linda M. Schuett, the attorney representing Jones, has argued against the council's move to vacate the seat, saying it violates the law and flies in the face of Maryland legal precedent. Schuett has argued that Jones is permanently "domiciled" in his district, even though he is currently living in a South Carolina prison. In earlier legal advice to the council, Hodgson had advised that Jones' absence constituted an abandonment of his seat.

Schuett, who did not return a message seeking comment, has twice unsuccessfully requested a temporary restraining order to prevent the council from appointing a replacement. The council, meanwhile, has made little progress toward doing so.

Three of the council's Republicans support Michael J. Wagner, a business owner from Ferndale, while two Democrats and another Republican support Peter I. Smith, a Marine Reservist from Severn.

In the letter, which is in response to a query from Councilman Jamie Benoit over how the impasse affects the pending lawsuit, Hodgson said the council has provided "its own accommodation" for Jones, by failing to appoint a replacement.

"If the council seat remains open on the date when the case is argued on the merits, then the court will be faced with a case where a decision in favor of the county will only perpetuate a situation where the people of District 1 are not represented on the council," wrote Hodgson.

Benoit, a Crownsville Democrat, said regardless of the council's inaction, he thinks the law is on Jones' side.

"On the legal merits, Daryl has a pretty strong case," said Benoit. "I don't know how our failure to appoint a replacement changes that. I don't like the county's chances, though."

The council is scheduled to vote again on March 19 in an attempt to name a replacement.

Council Chairman Derek Fink said he's concerned that the council's indecision could hurt the case.

"Obviously, we vacated the seat because Mr. Hodgson told us we had the authority to do so," said Fink, a Pasadena Republican. "So of course, now that it looks like it's possible we could lose the case, that's certainly concerning."

Fink said the council could still appoint a replacement on Monday night — presumably before the judge would issue a final ruling in the case.

"At the end of the day, it's most important to get representation in that seat, not keep Daryl Jones out of it," said Fink.

Councilman John J. Grasso, a Glen Burnie Republican, said he disagreed with the assertion that District 1 residents were unrepresented.

"They've got six more times bang for their buck — more than they could have ever had with Daryl Jones — we're all helping them. As far as I'm concerned, the people of District 1 are making out like bandits."

Grasso added that he hopes the judge takes into account "moral obligations" in deciding the case.

"Even though I don't have much faith in the judicial system, I would hope that any judge out there would follow the law, but also moral obligations," said Grasso. "You have a guy out here that robbed the people by not paying his taxes. I can't imagine anybody ruling in favor of Jones. If this judge does, maybe what we need to do is look real closely at this judge."

nicole.fuller@baltsun.com

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