High court says Anne Arundel councilman was ousted in error

The Maryland Court of Appeals said Monday that the Anne Arundel County Council improperly removed a councilman from office while he served time in federal prison on tax charges in 2012.

The ruling potentially opens the door for Daryl Jones to return to his seat, which he first won in 2006.

Jones did not respond to requests for comment Monday, but his attorney, Linda Schuett, said, "He's very, very happy."

Jones, a Democrat who represented the northern and western parts of the county, was found guilty of failing to file tax returns and was sentenced to five months in prison. His fellow council members removed him from office, saying that although he maintained a home in his district, he violated the county's charter when he left for Federal Correctional Institution Williamsburg, a medium-security facility in South Carolina.

The Court of Appeals, in a 4-3 decision Monday, ruled the council did not have the authority to remove Jones on grounds that he abandoned his residence in the district.

"Jones did not move his residence to the correctional facility in South Carolina, because, as the Circuit Court concluded, it is undisputed that his domicile remained in the First Councilmanic District," wrote Judge Lynne A. Battaglia in the majority opinion.

The judges directed the case back to the Circuit Court. Schuett said that for Jones to regain his seat on the council, he must either wait for the Circuit Court to formally adopt the ruling, or the County Council must pass a resolution acknowledging its earlier action was incorrect and that Jones is due his seat back.

Schuett said she hopes the council will "take the high road" and let Jones return without having to wait for Circuit Court action.

County Council Chairman Jerry Walker, a Gambrills Republican, issued a statement saying the Circuit Court will "determine what happens next regarding the First District's representative."

The County Council did not act during Monday night's regularly scheduled council meeting.

If Jones returns, the odd man out would be Peter Smith, who was appointed to the council after Jones was ousted. The council went through an arduous process that took more than 100 ballots among members to select Smith from a pool of applicants.

Even if he loses his seat, all of the votes and actions he took as a councilman would remain valid under what's known as the de facto officer doctrine, said David Plymyer, the county attorney.

County Councilman John Grasso said he'd rather have Smith remain on the council. Grasso, a Glen Burnie Republican, praised Smith during Monday's council meeting for buying a new bicycle for a child who was attacked and had his bike stolen.

"Hat's off to Pete Smith," Grasso said. "He's a great representation of District 1 and that's what we need to keep in District 1."

Smith is expected to run in 2014 and has a campaign committee and a campaign website. On Monday, he said he knew this situation was a possibility when he applied for the County Council seat last year. He said he'll wait to see how the Circuit Court acts to decide what he'll do next.

"All options will be looked at," Smith said after Monday's council meeting.

The court's decision is a blow for the county's legal team, which defended the County Council's action.

"The Office of Law is disappointed," Plymyer said. "I believed the County Council was correct in its interpretation."

Walker said the council had acted on advice from the Office of Law that there was no provision in the County Charter to remove Jones other than to declare his seat vacant based on residency, "so we moved forward using that premise."

County Councilman Jamie Benoit, however, said he felt vindicated by Monday's ruling. Though he voted along with his colleagues to declare the seat vacant, he had sent council members a memo saying he felt they were getting bad advice from then-County Attorney Jonathan Hodgson and the Office of Law.

"I thought they gave us terrible advice, and it turns out I was right," said Benoit, a Crownsville Democrat.

County Executive Laura Neuman declined to comment on the court's ruling.

Following the removal of Jones and the appointment of Smith, rules for how to remove elected officials were changed in Anne Arundel through amendments to the charter and approved by voters in 2012. The amendment added provisions for removing a councilman who has been convicted of a crime.

pwood@baltsun.com