Can Delaware lawmakers legally oust an indicted state auditor? State law isn’t clear

Kathy McGuiness speaking with people

Delaware State Auditor Kathy McGuiness. (Office of Auditor/Twitter)

It’s never happened before, according to legislative researchers.

The General Assembly has never voted to have the governor oust another elected official. As a result, there’s some confusion about how the process works.

After a grand jury indicted state Auditor Kathy McGuiness, a Democrat, on fraud charges last month, resolving that confusion has taken on increased urgency. The felony charges accuse McGuiness of hiring her daughter to a no-show job, giving her 2018 campaign consulting firm an illegal state contract, and intimidating employees who complained.

“In recent weeks, the General Assembly has been faced with some significant questions about its constitutional obligations,” said Senate President Pro-Tem David Sokola, a Democrat from Newark. “Some of these questions have come from the public and some have come from our own members, all of whom are rightly concerned about ethics and accountability in public service.”

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According to Article III, Section 13 of the Delaware Constitution, the Governor may remove an officeholder “for any reasonable cause,” as long as two-thirds of the General Assembly agree. The Constitution never clarifies what constitutes a reasonable cause.

While the Constitution plainly protects members of the General Assembly and the Lieutenant Governor from being ousted by the governor, it’s less clear on how they can proceed with ejecting someone from office.

While meeting in a special session to approve newly redrawn legislative districts, both the Senate and House also tried to agree on separate concurrent resolutions asking for the state Supreme Court to provide guidance on how they can legally proceed with possibly ousting McGuiness.

“Our oaths of office demand that we protect the public trust,” Sokola said. “To that end, we must share a fundamental understanding of our roles and responsibilities as defined in the Constitution.”

One question lawmakers are asking the court is if an indictment falls under “reasonable cause.” Also, does the governor and General Assembly have authority to take “lesser action” like suspending an elected official?

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The Senate resolution was approved in a 14-7 vote that split along party lines, with all seven ‘no’ votes coming from Republicans, including Sen. Brian Pettyjohn.

The Georgetown Republican pointed to former New York judge Sol Wachtler’s cliched refrain about prosecutor’s sway over grand juries being powerful enough to indict a ham sandwich as a reason for lawmakers to slow down in their quest to oust McGuiness.

“We’re pondering a question that deals directly with somebody who has been indicted. There’s been no finding of fact. There’s been no testing of the evidence that was brought before a grand jury to secure an indictment,” Pettyjohn said. “To start taking an action upon somebody who has not been convicted of a crime that has just been accused of official misconduct, I think is something as a road that we’re going down, that that is very dangerous.”

Sokola countered that getting guidance from the state’s top court would not necessarily dictate how lawmakers would act against McGuiness.

“It’s important to note that we are doing so in a way that will provide guidance for the future of this body, rather than a predetermined path for the present,” Sokola said. “It’s not just our constituents and our colleagues who are asking these questions. There are some good attorneys who think these questions should be very, very much clarified.”

A similar resolution was approved in the House, but because both measures were concurrent resolutions, they require support from the opposite chamber. Neither resolution got that approval, so the question will not be sent to the Supreme Court just yet.

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