Now that there’s a verdict, when will she step down? 

Posted: 9:34 pm Tue, December 1, 2009
By Steve Lash
Daily Record Legal Affairs Writer

Well, is she still the mayor or isn’t she?

It all depends on what your definition of “conviction” is.

To the attorney general’s office, Sheila Dixon remains Baltimore’s mayor — at least for now — because her conviction, which would trigger her suspension from office, does not become final until Visiting Judge Dennis M. Sweeney sentences her at some future date.

Some defense attorneys add that her misdemeanor — misappropriating donated gift cards while city council president in 2005 and 2006 — does not implicate the state constitutional provision regarding suspension from public office.

But others say Dixon stopped being mayor once Sweeney finished polling the jury early Tuesday afternoon to ensure their guilty vote was unanimous.

“We’ve probably had a suspended mayor” since the polling stopped, said Byron L. Warnken, a professor at the University of Baltimore School of Law. At that point, Dixon’s suspension began “by operation of law,” Warnken said, quoting from the state constitution.

Warren A. Brown, a criminal defense lawyer not involved in the Dixon case, agreed.

“I believe that the conviction alone is enough at this moment, makes her unable to legally act as mayor of the city,” said Brown, a Baltimore solo practitioner.

Advisory opinion

The debate over the mayor’s status after the jury’s verdict centers on Article XV, Section 2 of the Maryland Constitution.

That measure provides that upon final conviction of “any crime which is a felony, or which is a misdemeanor related to [her] public duties and responsibilities and involves moral turpitude for which the penalty may be incarceration in any penal institution,” the mayor “shall be suspended by operation of law without pay or benefits from [her] elective office.”

The attorney general’s office, relying on a 1977 advisory opinion of then-Attorney General Francis “Bill” Burch, says a conviction is not final until sentencing. As of sentencing, the mayor would be suspended without pay pending appeals and the president of the City Council, currently Stephanie Rawlings-Blake, would assume the duties of mayor.

Opinions of the attorney general are not binding, but courts commonly treat them as persuasive authority.

Rawlings-Blake did not respond to telephone messages seeking comment Tuesday afternoon.

If the conviction is overturned, the mayor would be returned to office and her pay restored, the attorney general’s office reported.

Untested issues

But defense attorney Timothy F. Maloney, who was not involved in the mayor’s case, said Dixon has strong arguments to avoid suspension or removal from office.

The constitutional provision calls for suspension for a conviction related to official duties. But the handling of gift cards intended for the poor is arguably not an official mayoral duty but a community project unrelated to her duties, said Maloney, of Joseph, Greenwald & Laake in Greenbelt and a former Democratic delegate from Prince George’s County.

In addition, the offense occurred when Dixon was City Council president, not mayor, and thus her illegal activity was unrelated to her duties as mayor, Maloney said.

“These are not insubstantial arguments,” Maloney added. “These are very significant issues. They are untested under Maryland law.”

Defense attorney Andrew M. Levy, who also was not involved in the mayor’s case, agreed that it is at least arguable whether a councilwoman’s actions involve her public duties as mayor.

“The argument could be made that she can’t be removed from being mayor for misconduct related to her time in another office,” said Levy, of Brown, Goldstein & Levy LLP in Baltimore. “Whether that is a winning argument, no one knows because there is so little case law in that area.”

Dixon, who faces a maximum penalty of five years in prison, could also avoid suspension if Sweeney sentences her to “probation before judgment,” a statutory punishment commonly used for first offenders.

With a probation before judgment, commonly called a PBJ, no conviction is entered as long as the defendant successfully fulfills the terms of a specified probationary period.

Without a conviction, there is no suspension, Maloney said.

A former prosecutor, though, said a PBJ is highly unlikely after a jury trial.

“I have never seen that happen in my five years as a prosecutor,” said Patrick Preller, who now practices with Preller Glass LLC in Baltimore.

Resolving the dispute

The debate could be resolved through a lawsuit brought by any Baltimore resident, said Warnken, the law professor. But that challenge probably would not be heard for at least two months, by which time Sweeney presumably would have sentenced Dixon, he added.

Dixon, meanwhile, is proceeding to act as mayor.

“The jury’s verdict today does not impact my responsibility to continue serving and I remain focused on keeping Baltimore on course in these trying economic times …,” she said in a statement. “Like me, my team remains focused on the everyday business of the city.”

City Solicitor George Nilson concurred. In a statement of his own, he said, “The mayor will continue to focus on the citizen’s concerns and the business of the city of Baltimore until this case comes to a legal conclusion.”

See what others are saying about the Dixon verdict, click on the image below: