By Andrea F. Siegel, The Baltimore Sun
8:32 PM EST, December 3, 2012
The lawyer for an Anne Arundel County councilman who lost his seat said Daryl Jones lived in his council district— until he was convicted last year of a misdemeanor count of not paying federal taxes, and his colleagues voted to remove him out of office.
The county council wrongly redefined residency, deciding that Jones' five-month, out-of-state prison term meant he no longer lived in his district and was grounds for ousting him, Linda Schuett told the state's highest court Monday, as she argued for the Court of Appeals to erase the council's action and reinstate Jones.
But lawyers for the county disagreed, arguing that the council was within its rights to vote him off. It is asking the court to dismiss the case, saying that Peter Smith, who replaced Jones, is now the incumbent councilman. Both men are Democrats from Severn.
Council qualifications are at the discretion of the council, Deputy County Attorney David Plymyer told the seven judges, and living for five months in prison outside his district instead of in the district he represents was a valid reason to remove him from office.
The dispute arose when Jones, a lawyer, was charged in August 2011 with failing to pay taxes, pleaded guilty and was ordered in January into a federal prison in South Carolina. The council, which had a measure for removing a county executive convicted of certain crimes, lacked a similar law covering one of its own.
There is no deadline for the top court to rule. Nor is there anything that says that if the court decides against the county, the judges must decide what to do about salary, benefits, validity of actions taken by Smith and other issues.
"I am certain that they will render a decision that is devoid of politics," Jones, who sat with supporters at the hearing, said afterward.
Depending on the court's decision, a ruling could affect elected panels in other jurisdictions, Schuett said. A ruling lacking boundaries for removal could let councils subjectively evaluate each member's circumstances, leading to what she previously called "political mischief."
"Well, this person was sick for five months, so we will not remove him. This person was on a vacation that we don't think he should have taken at this time, so we will remove him," she told the judges.
Schuett said that after Jones was thrown out of office, the council moved to change the charter to allow removal of a councilman for a criminal conviction under certain circumstances, which she maintained wouldn't have affected Jones.
"I, frankly, don't think the charter amendment was needed," Plymyer told the judges.
Attorneys for the county also said Jones knew since the spring of 2010 that he was under investigation for not paying taxes but kept it to himself as he campaigned for a second term in office. He should have told voters about the investigation and of the possibility that he could be convicted and imprisoned, Plymyer said. He contended that Jones should not benefit from keeping voters in the dark.
"So what kind of conduct are you suggesting has to be disclosed? Is it only criminal conduct? Or is it life conduct?" asked Irma Raker, a retired Court of Appeals judge who was among the judges hearing the case.
Jones should have disclosed an investigation that could have led to incarceration during his term of office, Plymyer said.
Schuett disagreed, saying her client was not obligated to issue a press release about an investigation. Jones didn't know whether he would be charged — six days after the election, he signed a conditional plea to a single misdemeanor count of failing to pay taxes — much less imprisoned, she said.
"This case presents a great variety of issues for the court to consider. It's impossible to judge from the questions asked how the court will rule," said Jonathan Hodgson, an Anne Arundel County attorney.
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