OCEAN CITY — Ocean City Solicitor Guy Ayres has likely answered tens of thousands of questions from the Mayor and Council in the past 34 years, and while elected officials and city managers come and go, Ayres has been a constant at City Hall, playing a major role in pointing the city in certain directions and watching the town’s rapid growth and popularity from his front row seat at City Hall.
Ayres is admittedly a man of few words, but when he has spoken publically in the past 34 years, people usually move up in their seat a bit to listen closely. He’s widely considered one of the resort’s most respected elder statesmen and a distinguished voice of reason. Yet, that doesn’t mean his opinions are always consistent with public sentiment, as he’s had the “finger of scrutiny” pointed at him more than a time or two over the years.
Ayres sat down with The Dispatch this week to talk about his nearly four decades in the public eye, his feelings on why the street performer issue became so divisive and how much longer he wants to keep giving legal advice to the power players in local government.
Q: You’ve been in the public eye for almost 40 years. You were elected to the Ocean City Council in 1978 and you became the city solicitor in 1982. That’s almost four decades of having your work scrutinized, analyzed and opined about in public and in the local papers. There are many good attorneys who take the path with fewer neon signs all around, so why was public service as much of a part of your path as practicing law?
A: I guess it started in 1974 when my law partner, Chip Gordy, ran for City Council and was elected. He served for four years, and then he decided to seek higher political office and he ran for the House of Delegates. At that time, I decided to give it a try as I thought it would be something that I was interested in. I discovered during that four-year period that it really wasn’t my bag. Not public service, so to speak, but being a politician.
I had told then Mayor (Harry) Kelley that I had decided not to run for re-election because, it’s not that I didn’t like it, I just didn’t like it enough. At that time, Ted Eschenburg, who was the city solicitor, was appointed to the District Court, and his partner at the time was Tom Groton, who is now a Circuit Court judge, was filling in for him but was not interested in being the town attorney. Although I’m technically appointed by the city council, the mayor asked me if I wanted to be the town attorney and I said that I was because quite frankly, that was the part of local government that I really enjoyed — the technical aspects. What you can do and what you can’t do.
Q: You’ve essentially had a front row seat for all the happenings in local politics since you became city solicitor. So regardless of how you may have felt about it then, have politics changed?
A: No, politics haven’t changed, just the players.
Q: Speaking of the late ‘70s, I was reading the transcript this week from the 1979 Ocean City Council meeting where the council, including you, were discussing the merits of proposed changes to the city’s occupancy law, and that law was brought up at City Hall last week and slight alterations or reinterpretations of it were being considered. Simply, it used to be 50 square feet per person, per room, which was consistent with the International housing code. It was reduced to 40 square feet per person and that law still stands today. You were opposed to that change back then, and I wonder now that it has been brought back up, does a law that was passed in 1979 when Ocean City looked very differently, still hold water?
A: Legally, I believe it holds water, but I don’t get involved in policy. I don’t recall much of the conversation back then because it was so long ago, but as I recall, the 50 square feet was a national standard and I just didn’t see any need at the time as a councilmember to deviate from the national standard. I think that’s the position the building department has taken today. They believe the national standard should apply and if the council didn’t want to do that at 40 feet, they certainly don’t want to deviate anymore from that. But, again, that’s up to the policy makers now.
Q: In recent years, the street performer issue has been a topic of much debate and contention. It’s resulted in two lawsuits against the city and the city lost both of those cases. The first two versions of the ordinance you drafted and I know you would not submit anything that you deemed to be unconstitutional. But, when those two cases didn’t go your way, looking back on it, do you see the issue differently and could you ever have anticipated that the issue would have led to everything that has followed, both in public debate and litigation?
A: Street performing and the regulation of street performing is, well, I won’t say entirely new, but in recent years, there’s been a flood of litigation across the country on this issue. Municipalities are trying to come to grips knowing that they can’t outlaw it.
So, what they are trying to do, and what Ocean City is trying to do, is strike a balance so that business is not interfered with by street performers, but at the same time, street performers are allowed to do what they do in a public forum. If I’ve learned anything from these cases, it’s that the judges consider the Ocean City Boardwalk the quintessential public forum. That’s where, from the Middle Ages and the troubadours, that’s what it was all about, and it’s still that way.
It’s been a hard sell to the businesses, but I think they’ve finally come to grips with it. Now, it’s about trying to strike a balance so they, as best they can, work in harmony up on that Boardwalk. That’s what we are striving for. We aren’t trying to drive street performers away.
Q: Over the course of your long career, there have obviously been cases that you’ve won, and others that you lost. In cases like this that lead to so much public debate and scrutiny, does the city ever point to you and say “this was attorney error” or collectively as client and attorney, do you look at the issue as “we have some work to do, and this wasn’t our day in court?”
A: Because the litigation is more recent, so we’ll say, ‘this town in California has done this or that’ and we’ll ask ‘has it been challenged’ or ‘is there legal precedent to back it up’. More and more you are finding the precedent because there have been more and more decisions. Then, of course, you come across the fact that if a decision comes out in the 5th circuit, that isn’t necessarily binding on the 4th circuit. Also, if you go around the country to the different appellate circuits in federal court, there are those that are considered liberal and those that are considered conservative and so you get conflicting opinions sometimes and then that takes the Supreme Court, if the case ever gets there, to decide it.
Q: So in a public case like that where you are representing the city and the city loses, do you feel as an attorney that you have egg on your face. I’m not asking that as a pointed question, but rather, I’m wondering the mentality of an attorney when you lose a high profile case?
A: I don’t feel that way at all. First of all, I don’t take cases personally. I try and do the best job I can for my client and advocate my client’s cause. I also try and advise my client and say, “look, this is questionable and there’s no guarantee that we are going to win this and you have to make a decision if you want to do this and you get challenged whether you want to face the fight.” That’s the council’s decision, not mine. I don’t try to influence them one way or another, other than give them legal advice.
Q: The city has now amended the law once again, and we’ve gone through the whole process with the Boardwalk Task Force, and now there seems to be some consensus on each side the agreement to disagree that this new version is going to work. But, there is yet another lawsuit coming from street performers and you are named in that lawsuit. You and I have talked before, and you told me that you weren’t overly concerned even though this is the first time in your long career that you have been named in a lawsuit. Has your stance changed at all on the matter since we last spoke?
A: No, not at all. Incidentally, and you are among the first to know this, [on Monday] Judge [William] Nickerson quashed every summons that was issued in that case. But, rather than dismiss the case, because it’s a pro se plaintiff, he’s directed the clerk of the court to issue new summons and for the plaintiff to try and serve them correctly. So, the plaintiff is back to square one.
Q: So, that includes you as a defendant, as well as the Mayor and Council, and the unnamed John Does, which are alleged to be Boardwalk business owners?
A: That’s right.
Q: That suit was led by local rabble rouser Tony Christ. He also leads another organization called the Ocean City Taxpayers for Social Justice. Recently, they had almost 1,500 people sign a petition that calls for the city to reduce the tax rate to 2009 levels. I know a federal court dismissed that case, sending it back to circuit court, with the judge deeming that “the plaintiff’s argument was misguided.” Can you give me an update on where that case is?
A: We filed a motion for summary judgement in that case, and it’s been set for a hearing on April 20 in Snow Hill in Circuit Court. I feel confident that the city will prevail. The basis upon the proposed amendment to the charter is basically what’s known as a tax rollback. The court, in a case called Somerville vs. Anne Arundel County, which was consolidated with a case out of Baltimore County, held that a tax rollback by itself violates Maryland law. In both Anne Arundel and Baltimore County, the court was able to sever that part out of the proposed amendment and allow other parts of it to proceed. In this case that we have here, you can’t sever it out because it’s the entire proposed amendment. So, we’ll have to wait until April 20, but my guess is the court will rule shortly thereafter and probably not from the bench. Because it’s a declaratory judgement action, the court has to give a written opinion and declare the rights of the parties, so it’s a little bit more complicated than just going down there and the judge saying ‘you win and you lose.’
Q: You have had a long and successful career as an attorney, but I wonder how much longer you want to continue to do this job and have that front row seat with what’s happening in this town?
A: Bryan, if you love what you do, you don’t want to stop doing it. I don’t want to belittle what I do, but to me, it’s not work, it’s almost like its play. People will say, ‘Guy, when are you going to retire?’ I say, ‘I’ll retire when they carry me out of here in a box.’ My wife and I have been married for 47 years but I know she doesn’t want me home every day. She’ll be the first one to kick me out the door in the morning. I just thoroughly enjoy it, and I particularly enjoy representing the town. I love the town.
(Editor’s Note: To listen to entire conversation, click online to www.mdcoastdispatch.com/podcasts.)