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Accountabilityby David A. Plymyer8:08 amApr 18, 20220

Legal opinion justifying Cathy Bevins skipping out of her district is laughable

Even more outrageous: Julian Jones saying the county charter should not be tweaked to prevent another lawmaker from doing what Bevins attempted [OP-ED]

Above: Baltimore County Executive Johnny Olszewski gives a fist bump to Counciwoman Cathy Bevins last Thursday as Council President Julian Jones (second from right) looks on. (Facebook)

Both the opinion by Baltimore County Attorney James Benjamin on the violation by Councilwoman Cathy Bevins of the residency requirement for council members and the response to it by Council President Julian Jones are troublesome.

While the opinion reaches a questionable conclusion, there is nothing questionable about Jones’ response: It is outrageous and irresponsible.

Section 202(c) of the county charter states that “if any member of the county council during his term of office shall move his residence from the district in which he resided at the time of his election, his office shall be forthwith vacated.” The term “forthwith” is not defined in the section.

I believe that Benjamin’s conclusion that “forthwith,” as used in Section 202(c), does not connote prompt or immediate action is clearly wrong.

His conclusion effectively justifies the inaction by the county council, which appears inclined to allow Bevins, who is not running for re-election, to finish out her term of office.

Cathy Bevins can keep her County Council seat despite residency violation (4/11/22)

Benjamin began his statutory construction misadventure by citing Black’s Law Dictionary and a Supreme Court case as authority for the proper interpretation.

That was a legal faux pas given that we are not talking about interpreting a provision of federal law. There are plenty of Maryland appellate cases describing the meaning of “forthwith” when used in Maryland state and local law.

In a 2003 case, WMATA v. Hewitt, the Court of Special Appeals summarized the Maryland case law as follows:

“The words ‘immediately’ and ‘forthwith’ have generally the same meaning and are stronger than the expression ‘within a reasonable time’ and imply prompt, vigorous action without any delay.”

In other words, “forthwith” does not mean “whenever you get around to it.”

James E. Benjamin Jr. was named County Attorney by Johnny Olszewski in 2019. (Facebook)

James E. Benjamin Jr. was named County Attorney by Johnny Olszewski in 2019. (Facebook)

The Opinion Gets Worse

When deciding on the meaning of a term in a law, a court may defer to the interpretation given to the term by the agency charged with administering it.

But only if the term is ambiguous and the administrative construction is “consistent and longstanding.”

Neither condition applies to “forthwith,” as used in Section 202(c).

Nevertheless, Benjamin referred to newspaper reports of the county council allowing a councilman who moved out of his district in 1967 to finish his term rather than seeking his immediate removal.

Does he really want to put his professional reputation on the line by arguing that one apparent incident that happened 55 years ago constitutes “a consistent and longstanding construction” by the council, which, in turn, supports his conclusion that “forthwith” does not mean “prompt, vigorous action without any delay,” as Maryland courts have stated on innumerable occasions?

“Forthwith” does not mean “whenever you get around to it.”

It should not have taken Benjamin nearly five months to reach a conclusion about a matter for which there is a Maryland Court of Appeals case almost directly on point. I know about that case, because I argued it, Daryl Jones v. Anne Arundel County, before the Court of Appeals in 2013.

The Anne Arundel County Charter was modeled on the Baltimore County Charter. As Benjamin pointed out, Section 202(c) is substantially identical to the charter provision at issue in the Anne Arundel County case, which at the time also failed to specify the manner of enforcing the residency requirement.

Suffice it to say that neither party to that case saw fit to question the meaning of “forthwith.” The parties did disagree on the proper manner of enforcement.

The Imprisoned Councilman

Anne Arundel County Councilman Daryl Jones moved out of his district to a federal correctional facility in South Carolina to serve a five-month sentence for willfully failing to file federal tax returns for his private law practice, a misdemeanor.

Conviction of a misdemeanor alone did not disqualify him from office. The Anne Arundel County Council declared his office vacated and named a replacement to serve out the remainder of his term.

The Court of Appeals, in a 4-3 decision, held that the council lacked authority to remove Jones and ordered him reinstated. The court did not specify who had the authority to remove Jones, or how it must be done.

Presumably, a court has the power to enforce Section 202(c) of the Baltimore County Charter, although that is not completely clear. Nor is it clear who would have legal standing to bring such a suit.

Even if there was a time when a suit should have been filed to try to vacate Bevins’ seat, I see no point in doing so now.

Among other complicating circumstances, too much time has passed since the violation, notably including the time spent by Benjamin on his opinion. Bevins’ term could be over by the time litigation was completed.

Julian Jones (D., 4th) has chaired the Baltimore County Council for three of the last four years. (Baltimore Post)

Julian Jones (D., 4th) has chaired the Baltimore County Council for three of the last four years. (Courtesy of The Post)

What is Jones Thinking?

Benjamin’s recommendation that the charter be amended to specify how and by whom the residency requirement is enforced is completely correct.

Which makes Council President Jones’ categorical dismissal of that recommendation inexcusable.

Jones said that the council would not take up the issue of a charter amendment clarifying the enforcement process, declaring that the council should not take steps to remove someone “duly elected” by county residents.

If a council member packs up and moves to Florida, is it okay with Jones that there is no remedy to remove and replace the member before the end of their term?

He then doubled down on the foolishness by stating:

“I see beauty in the charter. I don’t see it as being vague or some omission. There’s power and there’s no error here. There’s power in the fact that when the citizens elect somebody, only the citizens can get rid of them. You don’t want to get into the situation where your colleagues or some other entity has the power to remove you from office.”

So, if a council member packs up and moves to Florida one year into their term, is it okay with Jones that there is no clear remedy to remove and replace the member before the end of their term?

The voters of the county expressed their intent, through adoption of Section 202(c) of the charter, that in such case the member’s seat must be “forthwith vacated,” not that the district go unrepresented until the next election.

Action by AA County

The Anne Arundel County Council, aware that the outcome of the Daryl Jones case was uncertain, did not wait for the outcome.

It proposed an amendment to the county charter clarifying that it could remove a member for violating the grounds for disqualification set forth in the charter, including the residency requirement, on a vote of at least five of the seven members. The voters overwhelmingly approved it.

The amendment did not affect the Daryl Jones case, but resolved the enforcement issue for any future cases.

In other words, the Anne Arundel County Council did what normal legislative bodies do: It made a simple fix to a deficiency in existing law identified by the court.

The Baltimore County Council does not always do what normal legislative bodies do, to say the least.

Let’s hope that other members ignore their president and adopt a resolution placing a charter amendment on the November 2022 ballot that clarifies how Section 202(c) shall be enforced.

David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. He can be reached at dplymyer@comcast.net and Twitter @dplymyer.

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