'Undisputed evidence,' unanimous vote needed to oust Kirby

The Annapolis mayor and city council are tasked with enforcing residency requirements for the city's elected officials and would be required to vote unanimously in order to remove a sitting alderman found in violation of those requirements, according to an opinion issued by the city attorney.

The eight-page opinion, issued late Monday by Karen M. Hardwick, offers guidance on the law regarding residency qualifications for members of the Annapolis council. The opinion came at the request of Mayor Joshua J. Cohen, following inquiries from members of the public regarding the legal residence of Alderman Kenneth A. Kirby, a Ward 6 Democrat.

Kirby, who is without a permanent home, was in a public housing apartment rented by his niece in January when city police raided the residence in search of drugs. Police said Kirby was innocent of wrongdoing.

Kirby claims an address in his ward as his permanent address, though the residents of the home have said Kirby doesn't live there, but stays on occasion.

Both Cohen and Kirby said they had not yet read the opinion Monday night and could not comment.

The mayor and the council now must determine, according to the opinion, whether there is "sufficient evidence" for investigating Kirby's qualifications and "whether the mayor has been presented with undisputed evidence" that Kirby has changed his domicile and therefore created a vacancy.

According to the opinion, which speaks generally and does not specifically name Kirby, the residency requirement for aldermen is based on one's "fixed permanent domicile," which is largely determined by intent. The most important factors in determining a person's intent, according to the opinion, are where a person lives and where that persons votes.

According to the opinion, aldermen "shall be registered voters in the city for at least one year immediately preceding their election and a registered voter in the ward from which they are elected for at least six months and must have resided in that ward for at least six months immediately preceding the date of the general election."

Additionally, "in case of …disqualification of the mayor or of any alderman or removal out of the city by the mayor or removal out of the ward by any alderman, the mayor or acting mayor shall issue a proclamation directing that a special primary election and special general election be held to fill the vacancy."