(Oct. 17, 2014) Two separate hearings over the past week on the eligibility of Ocean City Council candidates had wildly different outcomes, leaving a number of unanswered questions as to what the council can and can’t do as a quasi-judicial body.
While potential contender Philip Ufholz was denied his candidacy at a hearing on Oct. 9, former Councilman and political firebrand Joe Hall was ultimately confirmed in his right to run at a hearing on Oct. 14.
While similar arguments against the both candidates were presented by attorney Jay Phillips, City Solicitor Guy Ayres was only available to advise the council during Hall’s hearing.
Subsequently, Ayres held the council to a much stricter set of ground rules during Hall’s session than was adhered to during Ufholz’s, frequently asking Phillips to refrain from portraying things to the council that were not, in fact, supported by actual juridical definitions or case law.
“I don’t, respectfully, believe that there’s a judge anywhere who would say that a person who is domiciled in the State of Maryland…can’t leave this town at any time to take care of family business in North Carolina, lest he lose his four months of residence,” Ayres said regarding Hall’s temporary absence.
“Do you really believe that?” he asked Phillips.
“Yes I do,” Phillips replied.
But things had been considerably different in Ufholz’s hearing, in which Ayres’ assisting attorney Heather Stansbury allowed Phillips to – for instance – tell the council that Ufholz “should be here 51 percent of the four month period prior to election day” based on a definition of ‘resident’ gleaned from a dictionary.
On Tuesday, Ayres advised the council that such an argument was “patently absurd” and would not hold water in court.
“You can have multiple residences,” Ayres said. “You can only have one domicile, and if you establish your domicile – which I don’t’ think anyone is contesting Mr. Hall has not done – then there is a burden of proof to indicate that you intended to abandon it.”
In Ufholz’s case, however, the burden of proof appeared to be placed on the defendant – who, despite providing his voter ID, driver’s license, and tax returns with his Ocean City address, was told that the council simply did not believe that he truly intended to domicile in the resort.
“I guess I should’ve kept my receipts from Superfresh to show that I shop across the street,” Ufholz said.
Although Ufholz was denied in a five-to-two vote, Councilwoman Margaret Pillas – who voted, along with Councilman Brent Ashley, to allow Ufholz to run – has asked the council to re-open Ufholz’s hearing at this coming Monday’s meeting, given the glaringly different standards used.
“Mr. Ayres has told us they have to prove he abandoned his domicile here,” Pillas said. “I need to see some proof.”
Phillips represents the lobbying groups Citizens for Ocean City, which last year endorsed Mayor Rick Meehan and council members Joe Mitrecic, Dennis Dare, Mary Knight, and Doug Cymek.
Last week, Phillips announced that the group wished to challenge the candidacy of Hall and Ufholz based on the city’s residency requirements for elected officials, which state that a candidate must be someone “who, for four months next preceding the election, has been and is, at the time of the election, a resident of and domiciled in the corporate limits of the Town of Ocean City, Maryland.”
The use of both those terms – “resident” and “domicile” – was the basis of Phillips’ cases. “Domicile” is defined as the place where a person intends to have their primary habitation, with voter registration being the paramount factor in determining intent. “Residency” is itself another factor in determining this intent.
Phillips argued, however, that the use of both terms separately in the city’s charter indicates that a person must reside solely in the Town of Ocean City for four months prior to the election, regardless of domiciliary.
Ayres disagreed that this verbiage was significant, as state law holds the two terms to be equivalent.
“It’s a redundancy that has created this confusion, I believe,” Ayres said. “Mr. Phillips and I happen to disagree on that, but you don’t cease to be a resident because you were absent For a period of time.”
Much of the difference between Ufholz’s and Hall’s outcomes was also due to the fact that there are no actual rules for candidacy hearings. The charter only states that the council is to stand in judgment of candidacy requirements.
“There’s nothing in the code that spells out the procedure you should follow, so we’re following the procedure typically done in administrative hearings throughout the state,” Ayres said.
This means that speculation, assumption, and hearsay can all be factors in the body’s decision. This may not be the case, however, if a decision by the council is appealed to Maryland Circuit Court, which any administrative action can be.
The further difference between Hall’s and Ufholz’s cases was that, in the former, Phillips contention was that Hall had abandoned his residency. In the latter, the contention was that Ufholz had never established one to begin with.
In Ufholz’s case, the council’s decision hinged on the fact that his water bill is sent to his property in Bethesda, and that he receives the Homestead Tax Credit – which places a cap on property tax increases for primary residences – at the Bethesda home, and not at his Ocean City property.
“He’s claimed that he did not take the homestead credit in Bethesda, but it says right here on his return that he does,” said Councilman Joe Mitrecic.
Stansbury noted that the council is allowed to base its decision on a person’s credibility, meaning that questions over Ufholz’s water and property taxes can be maintained as compromising the integrity of his stated intent.
But Pillas argued that taking the Homestead Tax Credit is not a requirement to establish residency, and thus doubts over Ufholz’s tax status should not compromise the preponderance of evidence that the does, in fact, live in the resort.
“You don’t’ have to own property to be a resident,” Pillas said. “You have no proof that he is not here. You have more proof that he is here.”
Nevertheless, “I don’t think Mr. Ufholz has proven that he lives in Ocean City,” Mitrecic said.
“My determination is that he is a non-resident,” Knight agreed.
With regard to Hall, Phillips’ case centered around Hall’s living and working in Charlotte, North Carolina for a period of time over the past year. Hall had lost his re-election bid to city council in November 2012, and has dealt with a number of personal and professional dilemmas since.
“It’s been pretty well-documented that I’ve had a roller coaster ride to say the least,” Hall said. “At the end of the 2013 season, thing had changed in my life and I had the opportunity to take a sabbatical from Ocean City. Not to change my residence, not to give up anything, but to re-tool my life.”
Hall never established permanent residency in North Carolina, keeping the vast majority of his personal effects at his 59th Street address. His bank accounts, driver’s license, and voter registration have never ceased to be in Ocean City.
“My time spent in North Carolina was two suitcases and a tote bag of personal items,” Hall said. “I moved from place to place…for two months, I lived in a hotel room one week at a time. In no way, shape or form was North Carolina ever a residence as it comes to the part of the city’s charter that has been mentioned.”
Phillips was able to put together extensive documentation that Hall had been spending time in North Carolina up through August, past the July 4 date that marked four months before the November 4 election.
But while Phillips seemed to believe this constituted violation of the four-month statute, Ayres’ advice to the council was that none of it would prove a change of residency in court.
The vast majority of Phillips documentation was culled from North Carolina court records regarding custody and child support proceedings. Hall’s ex-wife and children live in the Charlotte area.
But as the hearing wore on, there was growing suspicion that the intent of the evidence was simply to scare Hall against pursing candidacy by airing information about his family and particularly his children, a photo of whom Phillips had pulled from Facebook.
“This is not an inquisition of Mr. Hall’s personal life,” Ayres said. “What is the relevance of Mr. Hall going down to visit his daughters? Are you implying to the council that visiting his kids interrupts his residency in Ocean City?”
Phillips replied that he was “showing [Hall’s] family ties in Charlotte.”
Ayres then questioned if Phillips was “aware of the legal standard in North Carolina to be considered a citizen and resident for purposes of personal jurisdiction and venue?”
Phillips appeared to not understand the question.
“Then what’s your basis for contending that these court documents make him a citizen and resident for domiciliary purposes” Ayres asked. “If the state of North Carolina has jurisdiction and venue for the custody and support of those children, the only place Mr. Hall could file those documents is in the state of North Carolina. How does that at all indicate he wasn’t a resident of Maryland when he filed them?”
Hall contested Phillips’ claim that his listing of a local address in the Charlotte area constituted change of residence, calling Phillips out for mis-reprensenting one as the other.
“You have where I was staying in Mecklenburg County, and you have my permanent residence. You’re cherry-picking documents,” Hall said.
Hall also faced some questioning by the council itself, with Councilman Doug Cymek alleging Hall had opened business in North Carolina. No records exist to indicate Hall had done so.
Councilman Dennis Dare also stated that he would need to see a lease on Hall’s current home to prove intent to stay. Hall replied that he owns one-fifth of the property, given that it has been in his family for decades.
Dare and Cymek voted against approval Hall’s ballot position. Knight made the motion to accept.
“I am disappointed that you weren’t here July 4 and that you didn’t have proof of when you came back, but I believe you that in your heart of hearts, you were always here,” Knight told Hall.
“It’s been clearly documented by Mr. Phillips that I love my kids,” Hall said. “With nothing holding me here, I went down to be closer to them, reflect on my life, and gain some strength back. The intent of the move was never to abandon Ocean City.”
“I’m 70 pounds lighter, mentally stronger, and happy to be back,” Hall said.