Anne Arundel County Councilman Jamie Benoit is challenging a legal opinion issued by the county attorney on the political future of fellow Councilman Daryl D. Jones, who has been sentenced to federal prison beginning next month.

In a five-page letter to the county's Office of Law, Benoit, a Democrat, questioned a Dec. 1 memo from County Attorney Jonathan A. Hodgson. Hodgson had stated that the council can replace Jones when he begins serving his prison term Jan. 23 because he will be living outside his district during his prison stint. Jones was sentenced last week to five months on a single count of failing to file a tax return.

The county charter does not require a council member convicted of a crime or sentenced to prison to be dismissed from office. But Hodgson said once Jones, a second-term Democrat from Severn, is incarcerated, the council can declare his seat vacant by passing a resolution, then begin the process of choosing a successor. The council has 30 days from the date of the vacancy to choose a replacement, who must live in the district and be of the same party.

"By my read, if Mr. Jones does not resign and intends to live in the councilmanic district upon his return in a few months, his seat has not been vacated when he reports to prison," Benoit wrote. The Crownsville Democrat and attorney asked the county law office to provide a more substantive legal opinion. Benoit has said he has no opinion on whether Jones should resign.

The memo from Hodgson "is weak and frankly, lacks the substantive legal analysis each of us deserve before making such an important decision," Benoit wrote in the letter he emailed to the law office Thursday night. "At a time when we deserved the very best advice the Office of Law can offer, we didn't get it."

Benoit added, "I do not believe the opinion has given even an elementary legal analysis and cannot be considered sound legal advice. Rather it appears the opinion is infected with political whim which is not what I expect nor what we deserve from our lawyers."

Reached for comment on Benoit's letter, Hodgson, who acts as the attorney for both the council and County Executive John R. Leopold, released a strongly worded statement saying he sought to make all legal options known to his clients and questioned Benoit's motives.

"Sometimes politicians are unhappy to be told they have difficult decisions to make and I believe that's the root of Mr. Benoit's displeasure and attempted legal rebuttal," said Hodgson. "It appears to me that he's less dismayed by my reasoning than by my conclusion, and making such aggressive objections creates an impression that he even may be acting as Mr. Jones's surrogate.

"Maybe it's true that Mr. Benoit has no opinion on whether his colleague should resign from the council," he added, "But depending on what the council decides to do with my advice, he may need to start thinking about it."

Jones, who is also an attorney, did not respond to a request for comment. He has said previously he is undecided about whether he will resign or hold on to his seat while he serves his sentence.

nicole.fuller@baltsun.com

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