[RP TownTalk] FW: Status of Mr. Ebbeler--1st.

Sat Jun 27 02:11:44 UTC 2015

FYI – this is clearly an issue the town should be aware of.

From: Jonathan Ebbeler
Sent: Friday, June 26, 2015 9:59 PM
To: 'Vernon Archer'; David Lingua; Alan K. Thompson; Christopher Henry; E Rosario; Alejandro Silva; towntalk at riverdale-park.org
Cc: Sara Imhulse; dmorris at riverdaleparkmd.gov; LEONARD ADDISON; fsussman at CouncilBaradel.com
Subject: RE: Status of Mr. Ebbeler--1st.

Vernon – et al.

I have yet had time to retain legal counsel on the matter but have reached out to several attorneys in the state to protect my due process and constitutional rights.  Suffice it so say I have requested the mayor multiple times to swear me in or turn over the state paperwork so I may have the clerk of the court do so.

This entire ordeal is an incredible waste of taxpayer money authorized by the mayor and I am truly disgusted by it.  Keep in mind that the Council may not pass laws or interpret laws contrary to the laws of the state of Maryland.  I also have not been privy to any communications, case law, or analysis done or performed by Mr. Sussman in advance of this meeting although I have requested it.   This clearly violates my constitutional due process rights.

To date there have been vague suppositions that state law dictates things.  It does not.  The state law being referenced and incorporated in our charter’s Section 1001 is Section 9  and Section 11 of Article 1 of the Maryland Constitution as follows:

SEC. 9. Every person elected, or appointed, to any office of profit or trust, under this Constitution, or under the Laws, made pursuant thereto, shall, before he enters upon the duties of such office, take and subscribe the following oath, or affirmation: I, _______________, do swear, (or affirm, as the case may be,) that I will support the Constitution of the United States; and that I will be faithful and bear true allegiance to the State of Maryland, and support the Constitution and Laws thereof; and that I will, to the best of my skill and judgment, diligently and faithfully, without partiality or prejudice, execute the office of________________, according to the Constitution and Laws of this State, (and, if a Governor, Senator, Member of the House of Delegates, or Judge,) that I will not directly or indirectly, receive the profits or any part of the profits of any other office during the term of my acting as___________ (originally Article I, sec. 6, renumbered by Chapter 681, Acts of 1977, ratified Nov. 7, 1978).

SEC. 11. Every person, hereafter elected, or appointed, to office, in this State, who shall refuse, or neglect, to take the oath, or affirmation of office, provided for in the ninth section of this Article, shall be considered as having refused to accept the said office; and a new election, or appointment, shall be made, as in case of refusal to accept, or resignation of an office; and any person violating said oath, shall, on conviction thereof, in a Court of Law, in addition to the penalties now, or hereafter, to be imposed by Law, be thereafter incapable of holding any office of profit or trust in this State (originally Article I, sec. 7. Thus renumbered and amended by Chapter 681, Acts of 1977, ratified Nov. 7, 1978).

I have attempted to take the oath of office with the Clerk of the Court and was told that they do not have the paperwork provided by the state and that the town is still in possession of it.  I have requested Vernon either swear me in or provide the state paperwork so the Clerk of the Court can swear me in.

I have not found in the Constitution the guidance that our town attorney or Vernon are suggesting regarding timeframes that define the deterministic nature of ‘neglect’.  There is however case law on this point.  In Little v. Schul (Court of Appeals 1912) the court very clearly defined what neglect was determined by the ‘neglect’ provision in the Constitution AND the 30-day from the appointment timeframe defined in the City of Baltimore Code.  Our code is silent on the issue of time required to take an oath of office so I assume any legal analysis is using state appointments as reference by extension although this would be a legally challengeable point.

Additionally, the Courts have conclusively settled some of the question in Archer v. State, 74 Md. 443 where section 7 of Article 1 was construed in connection with Section 5 of Article 6 of the Constitution, which declared that positions “…shall qualify within one month after his appointment….”  In this case Judge Miller said, “The plain mandate of the Constitution is that a person…shall qualify by taking the constitutional oath of office within one month after his appointment.”

In this case there was a legislative state appointment. The Mayor is taking liberties with this point to say the analogy for when the clock starts is election night.  This quite clearly is ill-founded logic.  In the case of a contested election where the incumbent loses the Mayor’s logic indicates that the winner can somehow be sworn into office at any time between election night and what our charter definitely states (the first Monday in June after the election <Section 201>).  Even more to this point Section 201 of our Charter states that Council Members…”shall hold office for a term of 2 years or until the succeeding council takes office.”  If forced to adjudicate this in Court I will be advancing points on that language.  An ‘appointment’ or term cannot by law commence until an outgoing term has expired.  Ergo the clock at the earliest on the 30-day limit started 6/1 not on election night as the Mayor postures.  It is impossible for anyone to take an oath of office or assume elected office prior to the other term expiring which is clearly stated as the first Monday in June.

Moreover, Councilmembers are ROUTINELY sworn in over the month after when others are sworn in.  I am well aware of numerous oaths of office yet to be taken even today that will be sworn in by other Mayors within 10 miles of us.  There is absolutely no precedent or case law that supports the Mayor’s contention that I was disqualified from assuming office as of 6/3.  This ‘interpretation’ of law would routinely disqualify many elected officials throughout the state.  The Mayor of University Park himself would likely be disqualified under this interpretation as would numerous Councilmen in Kensington just as instructive examples – there are many more.

It is unfortunate that the Mayor has decided to state a position that has wasted thousands of dollars of taxpayer money on legal services on a point that is absurd and could have been resolved via a phone call to me.   If he is so assured of his position why not provide me the state paperwork and let the Clerk of the Courts make the call on swearing in.  While it was unfortunate that I was in WA state the week the rest of you swore in (hard to just ‘pop in for a swearing in’ and have been out of state or in the hospital with my wife due to family medical emergencies (to the point that the doctors finally delivered two weeks early on Wednesday – and yes mom and baby are ok not that this was ever inquired about) I find it in very poor taste that I even have to defend a point that is already constitutionally decided.  I shouldn’t even have to explain things – the mayor for all his three email ‘efforts’ never called to discuss the matter and regardless of the email trail I did not see them.  When do I ever ignore matters unless there is something serious going on in my life?

I find it in additional poor taste that I have to leave the hospital tomorrow to defend this point vs. be with my wife and baby when the Mayor could do what is constitutionally required of him – either swear me in or provide the paperwork so I may be sworn in.  Please realize that if forced I will protect my constitutional rights.  I am sure Mr. Sussman can advise you of the cost of litigation that will make the current spend of legal fees pale in comparison.  The taxpayers of the town did not elect you to waste money on things like this.  The taxpayers of the town did not elect you to waste even more money on a special election when I very clearly am trying to do what I can to be sworn in.

Councilman Jonathan Ebbeler

From: Vernon Archer [mailto:varcher at gmail.com]
Sent: Friday, June 26, 2015 8:09 PM
To: Jonathan Ebbeler; David Lingua; Alan K. Thompson; Christopher Henry; E Rosario; Alejandro Silva
Cc: Sara Imhulse; dmorris at riverdaleparkmd.gov<mailto:dmorris at riverdaleparkmd.gov>; LEONARD ADDISON; fsussman at CouncilBaradel.com<mailto:fsussman at CouncilBaradel.com>
Subject: Re: Status of Mr. Ebbeler--1st.

Councilmen and Mr. Ebbeler,

Please note that an Emergency Special Legislative Meeting is scheduled for and announced for tomorrow at 10 AM. The matters at stake can be discussed then with the council making a final decision, so long as we are able to get a quorum on such short notice.

Vern

On Fri, Jun 26, 2015 at 6:01 PM, Jonathan Ebbeler <jebbeler at efusionconsulting.com<mailto:jebbeler at efusionconsulting.com>> wrote:
Vernon

You repeatedly reference state law but have yet to actually quote section and verse that supports your position.  You owe it to the Council to do so vs. communicating a position and hiding behind the guise of ‘state law.’  I ask this of you because I have researched the issue and state law does not say what you are saying it does.  State law merely requires an oath of office – it is silent on many of the points you are suggesting as codified law.  If you think otherwise, please quote the section that supports your position.

Additionally, I renew my request that you either swear me into office or provide me with the paperwork in the town’s possession from the state that will allow me to be sworn in at the Clerk’s office in Upper Marlboro.  You sir are depriving me of my Constitutional rights and violating your oath of office with a clear departure from process. If you believe your position to be true and accurate there is no harm in releasing the paperwork and letting the Clerk’s office make the determination.  Refusal to do so is a clear indication that this is a personal decision to deprive me of what is legally allowable.

I am formally requesting that the town notify and certify the election results to the Clerk’s office to let them make the call.  To not release the paperwork to the clerk’s office is mucking around with State Election Law and I will seek adjudication on the matter to the town’s detriment.  This can all be avoided if you simply administer the oath of office, in lieu of that I need the state paperwork the town is in possession of.  Refusal to turn that over is untenable and will be vigorously fought.

Councilman Jonathan Ebbeler
Ward 1

From: Vernon Archer [mailto:varcher at gmail.com<mailto:varcher at gmail.com>]
Sent: Friday, June 26, 2015 4:22 PM
To: David Lingua; Alan K. Thompson; Christopher Henry; E Rosario; Alejandro Silva
Cc: Jonathan Ebbeler; Sara Imhulse; dmorris at riverdaleparkmd.gov<mailto:dmorris at riverdaleparkmd.gov>; LEONARD ADDISON
Subject: Re: Status of Mr. Ebbeler--1st.

Council members,

As I state in the letter I sent out minutes ago, I am contacting you because Mr. Ebbeler now wishes to be sworn in. I have stated my position, both that it is far to late for him to assume office based on state law, and also I remind you that the council is the sole arbiter of members election and qualifications.  Ultimately it is up to the body to decide.

If a quarum can gather tomorrow at 10 AM I am happy to advertise an Emergency Special Legislative Session so that the Council can review this matter.  I spoke to Mr. Sussman and he is available in the morning, but needs to leave by Noon.

Vern

On Fri, Jun 26, 2015 at 4:10 PM, Vernon Archer <varcher at gmail.com<mailto:varcher at gmail.com>> wrote:
Gentlemen,

My understanding of the existing situation is outlined below regarding Mr. Ebbeler's continued neglect and refusal to take the oath of office as required by the Constitution, State Law and Town Charter. You will notice that my position has now changed in certain regards.  This is based mostly on that fact that I (with tremendous help from the town attorney) now have a much better understanding of the law.

1. Mr. Ebbeler is not at this time a Council member of the Town Council of Riverdale Park.  His former term ended when the new Council was sworn in the evening of June 1 and he has refused and/or neglected to take the oath of office to commence the term for 2015-2017.

2. He has not assumed any of the responsibilities of office and he is not entitled to any of the privileges of office.

As Chief Executive and Chairman of the Council I, and all of the Town administration, have commenced taking appropriate steps.

3. Furthermore, after additional review of the state law it seems clear to me that Mr. Ebbeler forfeit office for the 2015-2017 term effective June 3. That was 30 days after he was notified of his election.  The law and precedent strongly suggest that the burden of being sworn in is on the elected official, not on the official providing for the swearing of the oath. That is, when Mr. Ebbeler did not attend the June 1 meeting (not even long enough to get sworn in and then return to his work) he placed himself in a position of impending forfeiture of the office he was elected to.

The fact that I made 3 separate overtures, over a 3 week period, to administer the oath of office to him in no way negates his having the sole responsibility to arrange to promptly take the oath.

4. As I understand the matter it is now too late for Mr. Ebbeler to take the oath as he is now 53 days past notification of his election.  (review email forwarded from Fred Sussman) This is of course only an academic question unless Mr. Ebbeler comes forward requesting to be sworn in over the next couple of days.

To conclude:

Should he come forward with such a request I will inform all members of the council.  I believe that he is no longer eligible to be sworn in and has in fact forfeit his office, so there is no office for me to swear him into.

The council is the judge of election and qualification of its members (Charter, S. 206) and can then either accept his interpretation or reject it. I will of course follow instructions set by the council. At this time I am simply trying to grapple with a situation that is almost without precedent and do so while fulfilling MY Oath of Office.

Mr. Sussman will be in attendance one way or the other at the July 6th meeting as we will need to advise the council on how to proceed with looking after the town’s business.

--
Vernon Archer, Mayor
Town of Riverdale Park, Maryland

--
Vernon Archer, Mayor
Town of Riverdale Park, Maryland

--
Vernon Archer, Mayor
Town of Riverdale Park, Maryland
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