As Anne Arundel County Councilman Daryl D. Jones weighs whether to resign before he serves a five-month federal prison sentence, the county attorney has issued a pointed letter that calls into question Jones' ability to keep his seat.
County Attorney Jonathan A. Hodgson wrote in a memorandum that the council can move to replace Jones when he begins his prison term Jan. 23 because he will no longer live in his district. Hodgson's statement, dated Dec. 1, came in response to an inquiry from then-Council Chairman Richard B. "Dick" Ladd.
"The principle that a member of the Council must live within the district that the member represents is a central feature of the form and structure of county government," Hodgson wrote in the memo obtained by The Baltimore Sun.
While the county charter does not expressly call for the dismissal of a council member upon conviction for a crime, or during incarceration, Hodgson's legal opinion offers a new perspective on Jones' political future.
Jones, a two-term Severn Democrat, did not return a message seeking comment Thursday. In a previous interview after his November sentencing on a single count of failing to file a tax return, Jones, a defense attorney, said he was debating whether to resign or to leave his seat vacant while he serves his sentence. Jones' attorney, Andrew C. White, did not return a call seeking comment.
While two Republican members of the council, including Ladd, have said he should resign, Jones says he has been flooded with supportive messages from constituents. Jones, who is the second African-American to have served on the council, has also garnered support from many in the county's black community.
Ladd said Thursday he was unsure whether the council would act.
"We don't have to really decide what we're going to do until it's clear what Daryl Jones is going to do," said Ladd, a Republican who represents the Severna Park area.
But Councilman John J. Grasso, a Glen Burnie Republican who has already called for Jones to resign, said Thursday, "If he doesn't willfully resign, I will lead the charge" to declare the seat vacant when Jones' begins his prison term.
"If you're not living in the district, that's the end of the story — you're not there," said Grasso. "We gotta do what we gotta do. You gotta get out. The people are paying tax dollars for representation."
In a brief interview Thursday, Hodgson said that if Jones does not resign, the council could approve by a majority vote a resolution to declare the seat vacant and begin the process of soliciting candidates to fill the seat. The county charter gives the council 30 days from the vacancy to appoint a new member, who is required to be of the same party.
Despite Hodgson's assertions, Jones' supporters point to legal precedent and a state law passed last year that requires incarcerated people to be counted at their last known address.
Asked about contrary opinions, Hodgson said, "I have considered all of those things when I wrote the memorandum. It's advice I've given to my clients and I'm going to let the memo stand on its own."
Councilman Jamie Benoit, a Democrat from Crownsville, said he has "no opinion" on whether Jones should stay or resign. But he said he has "questions and concerns" about the "strength of the legal analysis contained in that memorandum."
"We're going to be potentially called on to make what one would argue is the most important decision ever made in county government — to remove an elected official from office — and we're being asked to do so based on a three-paragraph memo based on case law that has nothing to do with this case."
Benoit, who is also an attorney, said the issue boils down to the legal meaning of "residence," and that Maryland courts have "over and over again" ruled in a way consistent with Jones maintaining his status as a resident of Anne Arundel.
"I don't see how this opinion stands up to scrutiny in Maryland courts," said Benoit. "And it leads me to believe that this opinion was not rendered with the clarity and objectivity that we should expect from our lawyers."
At Monday night's council meeting — Jones' first since he was sentenced — a Pasadena resident attempted to address the councilman's impending incarceration during a portion of the meeting open to wide-ranging public comments but was rebuffed by the council. Jones did not comment and left quickly after the meeting concluded.
Jones pleaded guilty in August to failing to file nearly three dozen personal and business tax returns over a six-year period ending in 2006, when he was first elected to the council. Jones, who was also sentenced to a year of supervised probation and six months of home detention, has explained the lapse by saying he was overwhelmed caring for his terminally ill mother, who died, and a brother with mental illness.
Council Chairman Derek Fink, a Pasadena Republican, said while he had read Hodgson's memo, he would reserve comment until he spoke to the attorney for "clarification."
"I'm waiting to hear what Daryl's going to do with everyone else," said Fink. "I've said from the beginning, I think Daryl will do the right thing. … I hope he lets everyone know soon what his intentions are."