Delaware House speaker calls Senate effort to oust state auditor ‘political theater,’ says his chamber won’t play along

Indicted Delaware auditor Kathy McGuiness (left) leaves Monday's abbreviated court session with defense lawyers Dean Elwell, Steve Wood and Chelsea Botsch.

File photo: Indicted Delaware auditor Kathy McGuiness (left) leaves court with defense lawyers Dean Elwell, Steve Wood, and Chelsea Botsch. (Cris Barrish/WHYY)

Drama and discord surrounded the Delaware Senate’s historic first step Monday to remove state auditor Kathy McGuiness from office in the wake of a jury finding her guilty of three misdemeanors earlier this month.

First, the Senate voted 13-7 to hold a removal hearing in which McGuiness would be permitted to attend with legal counsel and even call witnesses.

But minutes afterward, House Speaker Pete Schwartzkopf said his chamber — whose approval is also needed to have such a hearing — issued a statement saying the House would not join what he called “political theater.”

Schwartzkopf pointed out that even if a hearing was held and both chambers voted by a two-thirds majority to remove her, that wouldn’t be the final step.

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It would only be a vote “to ultimately ask the governor to remove the state auditor from office – a request he’s not required to fulfill, and a request he’s indicated that he wouldn’t carry out at this time anyway,” Schwarzkopf said.

Senate President Pro Tem Dave Sokola, who called and led the chamber’s special session Monday, did not respond to a request for comment on Schwartzkopf killing the effort.

Gov. John Carney has said he would wait for Superior Court Judge William C. Carpenter Jr. to decide whether he will officially convict her before taking action. The Delaware Constitution says the governor “shall” remove “any public officer convicted of misbehavior in office or of any infamous crime.”

Carpenter is currently mulling two defense motions — one seeking an acquittal, the other a new trial — that McGuiness filed last week. If the judge denies them, the next step would be to set a sentencing date where he enters a judgment of conviction.

That could be several weeks away. Prosecutors responded to the motions Monday but there is no deadline for the judge to rule and if he dismisses the motions, to set a sentencing date.

McGuiness is the first elected statewide Delaware official to be found guilty of crimes in office, and no statewide elected official has ever been removed from office.

McGuiness, who is seeking re-election to a second four-year term, was indicted in October, with prosecutors alleging she broke several state laws in hiring her college-age daughter for a part-time job, and awarding a contract to a consultant who worked on her campaign.

After a two-week trial in June, a Kent County jury found McGuiness guilty of conflict of interest, official misconduct, and structuring a contract to avoid a procurement policy. McGuiness was acquitted of two felonies: theft and intimidating potential witnesses.

McGuiness is a Democrat in a state where her party controls both legislative chambers and all six statewide elected offices. The pharmacist was a Rehoboth Beach town commissioner before being elected as auditor in 2018.

‘I have no intention of calling the House into session’

The recent legislative session ended June 30, so senators needed to be called in for a special session for Monday’s hearing. Sokola, along with Senate Majority Leader Bryan Townsend and Majority Whip Tizzy Lockman decided to take that route over two other options.

During Monday’s 40-minute Senate hearing, Sokola noted that McGuiness has refused lawmakers’ calls to go on leave and then to resign as the state’s financial watchdog.

“It is my hope that today’s vote will make clear to the residents of this state that they can count on their elected officials to step up and stand up to those who abuse the public trust,’’ Sokola said before the vote.

All of the auditor’s fellow Democrats in the Senate voted yes except for Darius Brown of Wilmington, who was acquitted earlier of offensive touching and disorderly conduct stemming from an argument with a woman in a restaurant. No Republicans supported the measure.

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Republican Senator Colin Bonini pointed out that the conviction hasn’t even been officially entered by the judge, so McGuiness is technically still an innocent person.

“The judge hasn’t ruled yet,’’ Bonini said. “I get very upset when the government starts picking on people, even if they’re political opponents of mine.”

But within minutes of the Senate adjourning, Schwartzkopf extinguished the effort. The House speaker, a retired state police captain from Rehoboth Beach, is a longtime friend of McGuiness.

“I have no intention of calling the House into session to consider this resolution at this time,’’ Schwarzkopf said in a statement supported by Majority Leader Valerie Longhurst and Majority Whip Larry Mitchell.

He said the Senate’s resolution would just start a long process moving the ultimate decision to the governor, who’s already said he would wait for McGuinness to be officially convicted by the judge.

The best route is to wait for Judge Carpenter to decide, Schwarzkopf said. “After the verdict in the state auditor case has been entered, the governor must remove her from office,’’ Schwarzkopf said. “That is as clear and simple as it gets.”

Earlier, Bonini had said it’s even better to let the voters decide. McGuiness has an opponent in the September 13 Democratic primary — seven weeks away — with the winner advancing to the general election. One Republican has filed for the office.

McGuiness’s attorney, Steven P. Wood, said in a statement before Monday’s hearing that the Senate jumped the gun on trying to remove her while saying she still maintains her innocence.

“Those in the General Assembly who continue to insist upon a rush to judgment in this case do so in sad disregard of the constitutional presumption of innocence that belongs to every resident of the United States, including the auditor,’’ Wood said, “and in flagrant disregard of her constitutional right to due process.”

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